Not all of the bizarre cases heard at the Supreme Court of Canada (SCC) are lighthearted or funny like some of the content we’ve covered this week. Some strange cases make us chuckle when they force the highest court in the land to seriously consider the future of margarine, but the strange can also make us uncomfortable to the point where we remain silent on important issues. And when it comes to bestiality and animal cruelty, we cannot stay silent.
Last year the SCC heard the disturbing case of R. v. W (D.L.), which required Canada’s highest court to consider the definition of bestiality for the first time. The case involved a man who was convicted of sexually abusing his two stepdaughters. In addition to being convicted multiple counts of sexual touching, sexual interference and sexual exploitation, the man was found guilty of bestiality after he attempted to have a dog engage in sexual activities with one of the girls. One incident involved inducing a dog to lick peanut butter off one of the girls’ genitals. There was no evidence that the defendant penetrated the animal, though this was clearly an act with a sexual purpose.
The key issue in the case was whether penetration is a necessary element of bestiality. Parliament included bestiality offences in the Criminal Code more than 60 years ago, though the code does not define the elements of the offence. The trial judge found that penetration was not required, though the Court of Appeal for British Columbia (BCCA) disagreed and maintained the common law definition of bestiality. The SCC concurred with the BCCA, finding that the historical precedent clearly establishes sexual penetration as an essential element.
By convicting the defendant of bestiality, the SCC would have to “in effect, create a new crime”. Ultimately, this is Parliament’s role, not the SCC’s.
Peter Sankoff – one of our professors here at the University of Alberta Faculty of Law – represented Animal Justice, the organization that was an intervener in the case. Though he was pleased that the SCC had “acknowledged the rights of animals to be protected from sexual exploitation,” the case demonstrates just how outdated and ineffective animal rights legislation is in Canada. It can’t be denied that the decision “gives animal abusers licence to use animals for their own sexual gratification.” Most Canadians would find this fact horrifying and contrary to the basic values that we hold regarding other sentient beings, and yet, this is the state of Canadian law.
Now that the SCC has thrown the ball to parliament to address this situation, how has parliament responded?
This year, MP Nathaniel Erskine-Smith (Beaches - East York, Liberal) introduced the private member’s Bill C-246, which aimed to reform the Criminal Code’s animal cruelty offences. This Bill would have been the first substantive change to Canada’s animal protection laws in over a century. The Bill addressed a few different issues regarding animal cruelty, including shark finning, and would have expanded the limited scope of bestiality, including the following definition, “bestiality means sexual activity between a person and an animal.” Frustratingly, the Bill was defeated in Parliament earlier this month.
Among the MPs voicing concerns were Blaine Calkins (for Red Deer - Lacombe, Conservative) and David de Burgh Graham (Laurentides - Labelle, Liberal). Calkins stated “We all want good animal welfare standards...I do not mean this maliciously, but I am hoping the overambitious agenda of the bill will be the end of it before it even has an opportunity to get to second reading.” Graham, a self-identified hunter and farmer, was much more critical in his remarks, stating, “I do not believe my family belongs in prison for sustainably feeding ourselves. I do not believe tens of thousands of my constituents should risk prison for feeding their families, either.”
It is a gross overstatement to claim that the Bill would have the effect of preventing hunters from providing for their families. The proposed amendment to the provision on killing animals specifically bars “unnecessary pain, suffering or injury to an animal” and “kill[ing] an animal without lawful conduct”. Many Western countries have enacted similar basic provisions without hindering hunters. The Bill was not overambitious. Rather, it was much weaker legislative response than what Canada requires.
In the words of Peter Sankoff, these statements are essentially “overheated rhetoric” that fail to address a serious problem. As uncomfortable and horrifying as bestiality may be, Canada is failing to properly protect animals and we have to ask ourselves if we as a society value animals enough to act on their behalf. It’s time for Parliament to make real change and not hide behind hyperbole or complacency.
For more information on the future after Bill C-246, check out MP Nathaniel Erskine-Smith’s article. As always, we would love to hear your input in comments!
 2016 SCC 22, 398 D.L.R. (4th) 193.
 Ibid at para 6.
 Ibid at para 1.
 R v W(DL), 2015 BCCA 169, 371 BCAC 51.
 R v W(DL), supra note 1 at para 4.
 Ibid at para 2.
 David Dias, “Bestiality requires penetration: SCC” (09 June 2016), Legal Feeds (blog), online: <http://www.canadianlawyermag.com/legalfeeds/3297/bestiality-requires-penetration-scc.html>
 Canada, Bill C-246. The Modernizing Animal Protections Act, 1st Session, 42nd Parl, 2016, online: <https://www.google.com/url?hl=en&q=https://www.oba.org/Sections/Animal-Law/Articles/2016/August-2016/An-Update-on-Canadian-Animal-Protection-Legislatio&source=gmail&ust=1477094606201000&usg=AFQjCNGSYzRYpbczfRGuim34q9iXbM2irg>
 Supra note 9.
 House of Commons Debates, 42nd Parl, 1st Sess, No. 51 (May 9, 2016) at 3043 (Blaine Calkins).
 Supra at 5242 (David de Burgh Graham).
 Supra note 9.
 Peter Sankoff, “Canada still an animal welfare laggard”, Policy Options (October 13, 2016) online: <http://policyoptions.irpp.org/magazines/october-2016/canada-still-an-animal-welfare-laggard/>