R. v. D.L.W., 2016 SCC 22

The accused was convicted on 13 charges of sexual offences involving his two step children. This included one count of bestiality pursuant to section 160(1) of the Criminal Code, R.S.C., 1985 C. c-46. The family dog licked the vagina of the older step-daughter, and the accused had aided and abetted this act by bringing the dog into the bedroom, applying peanut butter to the step-daughter’s vagina and then videotaping the interaction.

At trial (2013 BCSC 1327) the judge held that penetration was not an element of the offence of bestiality, and found the accused guilty (see para 300 onwards). He held that section 160 must be read in a modern context, and the offence must reflect current views of what constitutes prohibited sexual acts – sexual offences no longer require full penetrative acts to be committed.

The accused appealed to the British Columbia Court of Appeal (2015 BCCA 169) and his appeal was allowed. The modern provisions on bestiality originated from the English common law offence of buggery or sodomy, which required penetration. This offence was codified in 1869. While there had been subsequent amendments to the relevant provisions, including the separation of anal intercourse from bestiality, penetration did not cease to be an element of these offences by virtue of those amendments. The law criminalizing particular conduct must be certain and definitive. Bauman C.J.B.C dissenting.

The Crown appealed to the Supreme Court of Canada. The appeal was dismissed, the majority again referring to the common law origins of the offence which required penetration. Despite the subsequent amendments to the Criminal Code, Parliament had not further defined bestiality. The definition of bestiality had not changed but had retained the well-understood legal meaning of this ancient legal term, which included penetration. Abbela J. dissenting.

 

NOTE: Subsequent to this case the bestiality provisions of the Criminal Code were amended by parliament in June 2019 (see Bill C-84) to make clear that penetration was not a required element of the offence.