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Why the Supreme Court Bestiality Decision Is Actually Good For Animal Law

Animal Justice June 15, 2016

By Camille Labchuk, Executive Director of Animal Justice. 

The Supreme Court of Canada sent shock waves around the world last week when it ruled in the case of R. v. D.L.W. that most forms of bestiality are legal in Canada. According to the judges, sexually abusing animals is only a crime if the abuse involves intercourse.

Many people were deeply disappointed by the outcome. Animal Justice intervened in the disturbing court case last November to speak up for animals and make sure the Court heard why protecting them matters. Like you, we wish the Court had ruled that all sexual touching of animals must be illegal.

But apart from the outcome, nearly everything else about the D.L.W. case is good news. Many parts of the decision are extremely positive for animals and the field of animal law, and we know that Animal Justice made a huge difference by intervening. Let’s break down the decision and take a closer look.

First, it was a split decision. Although six judges interpreted bestiality narrowly, we managed to convince Justice Rosalie Abella that bestiality should include all sexual acts with animals. Justice Abella wrote a strong dissent that adopted most of Animal Justice’s arguments, stating that it was obvious that the law should make all forms of bestiality illegal. Justice Abella wrote that she has a “great deal of difficulty accepting that in its modernizing amendments to the Criminal Code, Parliament forgot to bring the offence out of the Middle Ages…”.

Second, the majority and the dissent both mentioned that protecting vulnerable animals is important. This is the first time ever that the country’s top court has acknowledged society’s long-standing and growing concern with the welfare of animals. It’s an incredible development for the field animal law. Our legal system is built on precedent, and now we have a powerful precedent from the Supreme Court that animal lawyers will be able rely on in future cases.

This recognition that animals matter is thanks to Animal Justice’s intervention. The other parties in the case (the Crown and the accused) wouldn’t even agree that the offence of bestiality is about protecting animals. In their view, the offence was exclusively about protecting human morality, and had nothing to do with protecting vulnerable animals from serious abuse to which they cannot consent. Without Animal Justice in the courtroom to point out that animals matter, the decision may have been very different.

By being in the courtroom, Animal Justice made a difference in the case. Animal Justice was mentioned by name in both the majority opinion and the dissent. Interveners don’t often get this type of recognition, so we know that the judges appreciated our arguments and took seriously what we had to say about animals.

Finally, it’s important to note that the majority decision doesn’t means the Court thinks animals are unimportant. It simply means that the judges felt they had to interpret a criminal offence narrowly, stating “it is for Parliament and not the courts to expand the scope of criminal liability for this ancient offence.”

The Court gave clear direction that Parliament can act, and that’s exactly what we are asking for. We’re urging the government to support Bill C-246, MP Nathaniel Erskine-Smith’s private member’s bill that would close the bestiality loophole and update other animal protection laws.

Ultimately, Animal Justice accomplished a lot by intervening in the case. Although the result was not what we had hoped for, we know this case will help animal lawyers make more progress in the future.

For a more detailed analysis, check out my co-counsel Peter Sankoff’s video blog on the case.

Animal Justice

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Animal Justice Fights for Animals in Canada’s Top Court

Animal Justice November 6, 2015

On November 9, 2016, Animal Justice argued before the Supreme Court of Canada in a groundbreaking case that will decide whether some forms of sexual abuse of animals are acceptable under Canadian criminal law.

This is the first time in Canadian history that the top court has considered any legislation directly protecting animals. It’s also one of the first times that animal advocates have been granted permission to make oral arguments before the Supreme Court. Animal Justice intervened to ensure the Supreme Court hears the perspective of countless animals who have no voices of their own. Whatever the outcome of the case, it was a victory for us to be there and speak for them.

The case – Her Majesty the Queen v. D.L.W. – is an appeal from a decision of the British Columbia Court of Appeal that seriously weakened the Criminal Code offence of bestiality. Instead of ensuring that all sexual abuse of animals remains illegal, the Court of Appeal ruled that only the penetration of animals is an offence.

As an intervener in the case, Animal Justice will ensure the Court hears why preventing harm to vulnerable animals is not only a fundamental societal value, but also a key objective of Canadian criminal law. Our lawyers Peter Sankoff, Professor at the University of Alberta Faculty of Law, Camille Labchuk, Executive Director of Animal Justice argued that it must remain illegal to sexually abuse animals in any way, shape, or form.

The stakes in this appeal couldn’t be higher. If the Supreme Court upholds the Court of Appeal decision, it will essentially legalize many forms of sexual abuse of animals right across the country. If that happens, we’ll take the fight to Parliament and ask the government to protect vulnerable creatures from sexual abuse and exploitation.

Resources:

The Supreme Court of Canada docket for R. v. D.L.W. is found here.
Animal Justice’s Factum is found here.
Animal Justice’s Motion to Intervene in the appeal is found here.
The British Columbia Court of Appeal decision is found here.

Want to learn more? Check out this video blog by Peter Sankoff to brush up on the details of the case, this article by legal blog The Court, and this BuzzFeed story to learn about the history of the offence of bestiality.

Animal Justice

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