Her Majesty The Queen Appellant v. D.L.W., 2016 SCC 22

SUPREME COURT OF CANADA Citation: R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402 Appeal heard: November 9, 2015 Judgment rendered: June 9, 2016 Docket: 36450 Between: Her Majesty The Queen Appellant and D.L.W. Respondent - and - Animal Justice Intervener Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Côté and Brown JJ. Reasons for Judgment: (paras. 1 to 124) Dissenting Reasons: (paras. 125 to 153) Cromwell J. (McLachlin C.J. and Moldaver, Karakatsanis, Côté and Brown JJ. concurring) Abella J. R. v. D.L.W. , 2016 SCC 22, [2016] 1 S.C.R. 402

Her Majesty The Queen Appellant v. D.L.W. Respondent and Animal Justice Intervener Indexed as: R. v. D.L. W. 2016 SCC 22 File No.: 36450. 2015: November 9; 2016: June 9. Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Côté and Brown JJ. on appeal from the court of appeal for british columbia Criminal law — Bestiality — Elements of offence —

Interpretation — Accused convicted of bestiality — Accused put peanut butter on complainant’s vagina and had dog lick it off while he videotaped — Whether term “bestiality” has well-understood legal meaning in common law and if so, whether Parliament intended to depart from that meaning when that term was first introduced in English version of Criminal Code — Whether penetration an essential element of offence of bestiality — Criminal Code, R.S.C. 1985, c. C-46, s. 160 .

After a 38-day trial, D.L.W. was convicted of numerous sexual offences against his two stepdaughters committed over the course of 10 years, including a single count of bestiality. D.L.W. first brought the family dog into the bedroom with the older complainant when she was 15 or 16 years old. He attempted to make the dog have intercourse with her and, when that failed, he spread peanut butter on her vagina and took photographs while the dog licked it off. He later asked her to do this again so he could make a video. At trial, D.L.W. was found to have done all of this for a sexual purpose.

The trial judge was of the view that bestiality in the Code means touching between a person and an animal for a person’s sexual purpose and he concluded that penetration was not required. The trial judge preferred to interpret the elements of bestiality so that they would reflect the current views on what constitutes prohibited sexual acts. A majority of the Court of Appeal allowed D.L.W.’s appeal against the bestiality conviction and acquitted him of the bestiality count. The majority concluded that the term “bestiality” had a common law meaning that included penetration as one of its essential elements.

The dissenting judge found that penetration was not an element of bestiality and he would have dismissed the appeal. Held (Abella J. dissenting): The appeal should be dismissed. Per McLachlin C.J. and Cromwell, Moldaver, Karakatsanis, Côté and Brown JJ.: Since 1955, criminal offences in Canada (apart from criminal contempt) have been entirely statutory. However, the common law continues to play an important role in defining criminal conduct as defining the elements of statutory offences often requires reference to common law concepts. Applying the principles that guide statutory

interpretation leads to the conclusion in this case that the term “bestiality” has a well-established legal meaning and refers to sexual intercourse between a human and an animal. Penetration has always been understood to be an essential element of bestiality. Parliament adopted that term without adding a definition of it and the legislative history and evolution of the relevant provisions show no intent to depart from the well-understood legal meaning of the term. Moreover, the courts should not, by development of the common law, broaden the scope of liability for the offence of bestiality.

Any expansion of criminal liability for this offence is within Parliament’s exclusive domain. When Parliament uses a term with a legal meaning, it generally intends the term to be given that meaning. Words that have a well-understood legal meaning when used in a statute should be given that meaning unless Parliament clearly indicates otherwise. A further consideration is the related principle of stability in the law which means that absent clear legislative intention to the contrary, a statute should not be interpreted as substantially changing the law, including the common law.

Parliament is deemed to know the existing law and is unlikely to have intended any significant changes to it unless that intention is made clear. While these interpretive principles are easy to state, how they apply in particular cases may be controversial. Sometimes, the controversy concerns the state of the common law when Parliament acted: in other words, the debate is about whether the term used had a clearly understood legal meaning when it was incorporated into the statute.

In this case, the term “bestiality” did have a clear legal meaning when Parliament used that term without further definition in the English version of the 1955 Criminal Code . Bestiality meant buggery with an animal and required penetration. It was clear that to secure a conviction , the prosecution had to prove that penetration of an animal, or, in the case of women, penetration by an animal, had occurred. This was the state of the law when the Offences Against the Person Act, 1861 was enacted in England.

The offence in substantially the same form was carried over into the first English version of the Canadian Criminal Code in 1892 and continued to be in force until the offence called bestiality was introduced into the English version of the Code in the 1955 revisions. In Canada, as in England, the early history of the offence shows that what was commonly called “bestiality” was subsumed under the offences named sodomy or buggery and that penetration was one of its essential elements.

The English language version of the Canadian statute simply provided that buggery with an animal was an offence, but did not further define it. However, the French version of “buggery . . . with any other living creature” being “ bestialité ” shows that “buggery with an animal” and “bestiality” were the same thing. There can be no serious dispute that the Canadian offence of buggery with an animal/ la bestialité in the 1892 Code , which continued to be in force until the 1955 revisions, had a widely and generally understood meaning: the offence required sexual penetration between a human and an animal.

Parliament , by using that term without further definition, intended to adopt that well-understood legal meaning.

Parliament did not explicitly or by necessary implication change the well-understood legal meaning of the term “bestiality” when it amended the Criminal Code in 1955 and in 1988. There is no express statutory provision expanding the scope of the bestiality offence and further, there is nothing in the legislative evolution and history that supports any parliamentary intent to bring about such a change by implication. The required clarity and certainty are entirely lacking. Courts will only conclude that a new crime has been created if the words used to do so are certain and definitive.

This approach not only reflects the appropriate respective roles of Parliament and the courts, but the fundamental requirement of the criminal law that people must know what constitutes punishable conduct and what does not, especially when their liberty is at stake. The important questions of penal and social policy involved in broadening the offence of bestiality are matters for Parliament to consider, if it so chooses. Parliament may wish to consider whether the present provisions adequately protect children and animals.

But it is for Parliament, not the courts, to expand the scope of criminal liability for this offence. Absent clear parliamentary intent to depart from the clear legal definition of the elements of the offence, it is manifestly not the role of the courts to expand that definition. The English version of the Criminal Code did not use the term “bestiality” until 1955, but the French version did.

In the 1955 revision, the word “bestiality” was first introduced into the English version of the Code and the reference to “buggery . . . with any other living creature” was deleted, but with no definition of either the term “buggery” or “bestiality”. The text of the 1955 revision does not suggest that any significant change in the law was intended. This appears to be simply the substitution of a more precise legal term in the English version for the previous more general expression.

The absence of a statutory definition of either term is consistent only with the intent to adopt the accepted legal meanings of both terms. Here, there is no evidence that any substantive change was intended. The fact that no substantive change occurred in the French version of the offence leads almost inevitably to the conclusion that the change in terminology in the English version was simply intended to give the offence a clearer, more modern wording which would be more consistent with its French equivalent.

There is nothing in this tweak to the English version of the Code to support the view that any substantive change to the elements of the offence was intended. The text, read in both of its official versions, the legislative history and evolution, all of the commentators and the applicable principles of statutory

interpretation support the view that the 1955 revisions to the Code did not expand the elements of bestiality and that penetration between a human and an animal was the essence of the offence. A complete overhaul of sexual offences against the person in 1983 was followed by the 1988 revisions which were focused on enhancing the protection of children against sexual abuse. In 1988, among other things, the new legislation repealed the former buggery offence and replaced it with the new offence of anal intercourse and bestiality was given its own section.

Through all of the many changes, changes which included fundamental revisions of the definition of several sexual offences and the repeal of others, the Code continued to make bestiality an offence without further defining it. The fact that Parliament made no change to the definition of bestiality in the midst of a comprehensive revision of the sexual offences supports only the conclusion that it intended to retain its well-understood legal meaning.

It defies logic to think that Parliament would rename, redefine and create new sexual offences in a virtually complete overhaul of the sexual offence provisions in 1983 and 1988 and yet would continue to use an ancient legal term with a well-understood meaning — bestiality — without further definition in order to bring about a substantive difference in the law. The new bestiality offences added in the 1988 revision, while not changing the definition of the underlying offence, added protections for children in relation to that offence.

Finally, contrary to the dissent’s view, it does not follow that all sexually exploitative acts with animals that do not involve penetration are perfectly legal. There are other provisions in the Code which may serve to protect children and others from sexual activity with an animal that does not necessarily involve penetration.

Per Abella J. (dissenting): The common law origins of the offence of “buggery with mankind or with any animal” were ecclesiastical and emerged from the Church’s hegemonic jurisdiction over sexual offences and its abhorrence for non-procreative sexual acts, which were condemned as being “unnatural”. The Church’s jurisdiction over sexual offences ended in 1533, but censorious attitudes did not, and death remained the penalty for “the detestable offence of buggery”. The question whether these acts were criminal only when there was penetration is, however, far from clear.

At no time was “buggery” ever defined by Parliament. Applying the principles of

interpretation requires reviewing related Criminal Code provisions and the context in which the bestiality provision was first introduced. In 1955, for the first time, the offence of “bestiality” was expressly named as such in the English version of the Code . It too was never defined.

The addition of the offence of “bestiality” must have been intended to mean something different from “buggery” because if the elements of bestiality and buggery were the same, the addition of “bestiality” to the 1955 Code was redundant and there was no need to change the provision from one prohibiting buggery, to one prohibiting buggery and bestiality. Amendments in 1955 were also made to the Code ’s animal cruelty offence to reflect an increased recognition of the importance of protecting animal welfare by expanding the category of birds and animals from only some, to all of them.

It is in this transformed legal environment consisting of more protection for more animals, that the offence of “bestiality” first appeared. Whatever the common law meaning of “buggery” with animals had been, the creation of a distinct offence of bestiality in the same year that the animal cruelty provisions were expanded to protect more animals from exploitative conduct, reflected Parliament’s intention to approach the offence differently.

Parliament’s purposes would have been inconsistent if the animal cruelty protection in the Criminal Code would now cover all birds and animals, but the bestiality provision would be limited to those animals whose anatomy permitted penetration. Requiring penetration for the offence of bestiality, technically leaves as legal all sexually exploitative acts with animals that do not involve penetration. This, in turn, completely undermines the concurrent legislative protections for animals from cruelty and abuse.

If there was any doubt about what Parliament intended in 1955, its intention is even clearer in light of the 1988 Amendments to the Code , when buggery and bestiality were divided into two separate provisions. The offence of “bestiality” was extended to include those who compelled its commission or who committed it in the presence of a child. It is difficult to accept that Parliament’s intention was to protect children from seeing or being made to engage in sexual activity with animals only if it involved penetration.

Parliament must have intended protection for children from witnessing or being forced to participate in any sexual activity with animals. This wider protection for children can also be inferred from the other changes to the Code in the 1988 Amendments, introducing the offences of sexual interference, sexual exploitation, and invitation to sexual touching, all of which protected minors and none of which required penetration.

As a result, by 1988, the language, history, and evolving social landscape of the bestiality provision lead to the conclusion that Parliament intended, or at the very least assumed, that penetration was not a necessary element of the offence.

The absence of a requirement of penetration does not broaden the scope of bestiality. It is more a reflection of Parliament’scommon sense assumption that since penetration is physically impossible with most animals and for half the population, requiring it asan element of the offence eliminates from censure most sexually exploitative conduct with animals. Acts with animals that have a sexualpurpose are inherently exploitative whether or not penetration occurs, and the prevention of sexual exploitation is what the 1988Amendments were all about. Cases Cited By Cromwell J. Not followed: R. v.

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No. 773 (QL) , 2015 CarswellBC 1025 (WL Can.) , setting aside the conviction for bestiality entered by Romilly J., 2013 BCSC 1327 , [2013] B.C.J. No. 1620 (QL) , 2013 CarswellBC 2238 (WL Can.) . Appeal dismissed, Abella J. dissenting. Mark K. Levitz , Q.C. , and Laura Drake , for the appellant. Eric Purtzki and Garth Barriere , for the respondent. Peter Sankoff and Camille Labchuk , for the intervener. The judgment of McLachlin C.J. and Cromwell, Moldaver, Karakatsanis, Côté and Brown JJ. was delivered by Cromwell J. — I.

Introduction [ 1 ] Sixty years ago, Parliament added an offence called bestiality to the English version of the Criminal Code , S.C. 1953-54, c. 51, s. 147 (the “1955 revisions”), but did not define its elements. Through successive ― and substantial ― amendments to the sexual offence provisions of the Code , Parliament has retained the offence of bestiality to the present day, but has never defined it. The crime is in fact a very old one which, at various times in its history, has also been referred to as a type of sodomy or buggery.

But by whatever name it has been known in its long history, sexual penetration has always been one of its essential elements. Whether that is still the case under our present Code is the question that divided the British Columbia courts and now comes to us on appeal. [ 2 ] The appellant Crown argues that bestiality no longer requires penetration, and is committed by engaging in any sexual activity with an animal. This submission asks us, in effect, to create a new crime.

But that is not our role. [ 3 ] In Canada, there can be no liability for common law crimes apart from criminal contempt of court: Criminal Code , R.S.C. 1985, c. C-46, s. 9. As a result, changes to the scope of criminal liability must be made by Parliament; judges are not to change the elements of crimes in ways that seem to them to better suit the circumstances of a particular case: D. H. Brown, The Genesis of the Canadian Criminal Code of 1892 (1989), at pp. 124 and 148.

To accept the Crown’s invitation to expand the scope of the crime of bestiality would be to turn back the clock and re-enter the period before codification of our criminal law, a period when the courts rather

than Parliament could change the elements of criminal offences. My colleague Justice Abella is of the view that accepting the Crown’sposition on this appeal would not widen the scope of bestiality. But of course it would. That is the point of the Crown’s position. If theCrown’s proposed changes to the elements of bestiality are to be made, they must be made by Parliament. [4] Like the majority of the Court of Appeal, I conclude that penetration remains, as it has always been, an essentialelement of the offence of bestiality. I would dismiss the appeal. II.

Outline of the Facts and Judicial History [5] This appeal relates solely to the respondent D.L.W.’s conviction for a single count of bestiality. That convictionwas entered after a 38-day trial, at which the respondent was also convicted of numerous other sexual offences against his twostepdaughters committed over the course of 10 years: 2013 BCSC 1327. Both victims testified that the respondent began sexuallyfondling them by the age of 12 and, by the time they turned 14, he was forcing them to engage in oral sex and sexual intercourse andencouraging them to perform sex acts with each other.

He was sentenced to a total of 16 years’ imprisonment. For the bestialityconviction in relation to the older complainant, he received a sentence of two years to run consecutively to sentences totalling 14 yearsimposed in relation to the other offences: 2014 BCSC 43. [6] The trial judge, Romilly J., found that the respondent first brought the family dog into the bedroom with thecomplainant when she was 15 or 16 years old. He attempted to make the dog have intercourse with her and, when that failed, he spreadpeanut butter on her vagina and took photographs while the dog licked it off.

He later asked her to do this again so he could make avideo. The judge found that the respondent did all of this for a sexual purpose: 2013 BCSC 1327, at paras. 317-18 . [7] Bestiality is not defined in the Criminal Code, R.S.C. 1985, c. C-46, which provides simply: 160

(1) Every person who commits bestiality is guilty of an indictable offence and liable to imprisonment for a term not exceeding tenyears or is guilty of an offence punishable on

summary conviction. The issue at trial and both levels of appeal concerns whether penetration is an essential element of the offence. If it is, the respondentmust be acquitted as the alleged acts did not involve sexual penetration. [8] The trial judge accepted the Crown’s position that penetration is not required. In his view, bestiality in the Codemeans touching between a person and an animal for a person’s sexual purpose. Relying on R. v.

M.G., (C.Q.), thejudge rejected the notion that the elements of bestiality were “frozen in time”, preferring instead to interpret the elements of bestiality sothat they would “reflect current views on what constitutes prohibited sexual acts”: paras. 314-15. He held that the respondent was a partyto this offence because he facilitated the complainant’s participation in bestiality by encouraging her to do so and by using the peanutbutter: para. 320. The judge also concluded that the Crown had failed to prove that the respondent had compelled the complainant tocommit the offence: para. 326.

In other words, the trial judge in effect held that the complainant was the principal (but uncharged)offender and the respondent was a party to the offence which the complainant had committed.

The Crown refers to this conclusion as“questionable” but it is relevant to the legal issue we face in this appeal to consider that the Crown’s position, if accepted, could have theeffect of turning the victim into an offender. [9] A majority of the Court of Appeal (Goepel J.A. writing for himself and Lowry J.A.) allowed the respondent’sappeal against the bestiality conviction and acquitted the respondent of the bestiality count: 2015 BCCA 169, 371 B.C.A.C. 51. Themajority concluded that the term “bestiality” had a common law meaning that included penetration as one of its essential elements.

Thelegislative history of the offence in Canada, the majority decided, did not show any parliamentary intent to depart from that meaning.Bauman C.J.B.C., dissenting, would have dismissed the appeal. He found that penetration was not an element of bestiality under theCanadian offence brought into force in 1955. The Crown appeals to this Court as of right by virtue of that dissent. [10] The only issue is whether the majority of the Court of Appeal was wrong to conclude that penetration is an essentialelement of the offence of bestiality in s. 160(1) of the Code. III. Analysis A.

The Parties’ Positions [11] The Crown’s position is, first, that the term “bestiality” does not have a well-established and well-understoodmeaning in common law. In the early days of Canada’s Criminal Code, sexual activity with an animal was criminalized, in the Englishversion, as buggery, an offence which, in the Crown’s submission, related only to anal intercourse, whether between humans or betweena human and an animal.

Next, the Crown submits that when the term “bestiality” was first used in the English version of the Code in the1955 revisions, Parliament intended to separate it from the common law conception of buggery and give it its own meaning.

Further, theargument goes that additional amendments to the Code effective in 1988 show that Parliament must have assumed that the term“bestiality” encompassed sexual activity of any kind between a human and an animal. [12] The respondent, on the other hand, submits that when the term “bestiality” was introduced into the English versionof the Code in 1955, that term had a specific, well-established and well-known legal meaning: vaginal or anal penetration between ahuman and an animal. Parliament, when it employed the term without further definition, must have intended its normal legal sense.

Noneof the amendments on which the Crown relies affected the definition of the elements of the offence; Parliament simply continued to usethe term without statutory definition. B. The Analytical Approach [13] The debate in this Court concerns whether the term “bestiality” has a well-understood legal meaning in the commonlaw and, if so, whether Parliament intended to depart from that meaning when it used the word without further definition in the Englishversion of the Code. At the root of the issue, therefore, is the question of how the common law and the statutory offences in the Code

interact. This is an important question of principle that has implications far beyond this particular offence. [14] The common law “forms an important and complex part of the context in which legislation is enacted and operatesand in which it must be interpreted”: R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at §17.1. Nowhere in our lawis this observation more apt than in relation to our Code. [15] As I mentioned at the outset, criminal offences in Canada since 1955 have been entirely statutory (with the exceptionof criminal contempt).

However, the common law continues to play an important role in defining criminal conduct. Defining theelements of statutory offences often requires reference to common law concepts: United Nurses of Alberta v. Alberta (Attorney General), (SCC), [1992] 1 S.C.R. 901, at p. 930. Those concepts continue not only to illuminate the definition of statutory offencesbut also to give “content to the various principles of criminal responsibility those

definitions draw from”: R. v. Jobidon, (SCC), [1991] 2 S.C.R. 714, at p. 736. Many of the “basic premises” of the criminal law ― the necessary conditions for criminalliability ― are left to the common law: Law Reform Commission of Canada, Report 31, Report on Recodifying Criminal Law (1987), atp. 17. [16] To take one obvious example, the mental element of many crimes is not specified in the Code. Yet, absent acontrary indication, Parliament is presumed to intend that true crimes have a subjective fault component.

This is presumed becauseParliament is taken to know that under the common law the act is not guilty unless the mind is guilty (actus non facit reum nisi mens sitrea): see, e.g., R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269, at paras. 20-23. Of course, Parliament can provide otherwise, but whereit does not, the common law principle is applied. [17] The question of how the common law interacts with statutory criminal law is not a new one. It is addressed, forexample, by several pages of Sir James Fitzjames Stephen’s A History of the Criminal Law of England (1883), vol. II, at pp. 187-92.

Heconcluded that there are four main ways in which criminal statutes may relate to the common law. The statute law may simply assumethe continuing existence of some general principles and

definitions of certain crimes. The statutes, in some instances, provide that someof those offences, aggravated or modified in particular ways, are subject to special punishments. In other instances, the statutes createoffences unknown to the common law and, in a few cases, alter the principles and clarify the

definitions of the common law. Determining which of these sorts of interactions applies in a particular offence is a matter of statutory

interpretation. [18] A number of principles guide statutory

interpretation in this sort of case. The three most important are these. First,when Parliament uses a legal term with a well-understood legal meaning, it is presumed that Parliament intended to incorporate that legalmeaning into the statute. Second, any departure from that legal meaning must be clear, either by express language or necessaryimplication from the statute. Finally, apart from criminal contempt, there can be no liability for common law crimes.

Creating anddefining crimes is for Parliament; the courts must not expand the scope of criminal liability beyond that established by Parliament. [19] As I will explain, applying these principles leads me to the following conclusions. The term “bestiality” has a well-established legal meaning and refers to sexual intercourse between a human and an animal. Penetration has always been understood to bean essential element of bestiality.

Parliament adopted that term without adding a definition of it and the legislative history and evolutionof the relevant provisions show no intent to depart from the well-understood legal meaning of the term. Moreover, the courts should not,by development of the common law, broaden the scope of liability for this offence, as the trial judge did. Any expansion of criminalliability for this offence is within Parliament’s exclusive domain. In short, this case falls within Stephen’s first category: our Codeassumes the continuing existence of the common law definition of this crime. C.

The Accepted Legal Meaning of “Bestiality”

(1) Parliament Intends the Legal Meaning of Legal Terms [20] When Parliament uses a term with a legal meaning, it intends the term to be given that meaning. Words that have awell-understood legal meaning when used in a statute should be given that meaning unless Parliament clearly indicates otherwise. Thisprinciple has been applied in a number of cases such as Will-Kare Paving & Contracting Ltd. v. Canada, 2000 SCC 36, [2000] 1 S.C.R.915, at paras. 29-30; Townsend v. Kroppmanns, 2004 SCC 10, [2004] 1 S.C.R. 315, at para. 9; A.Y.S.A. Amateur Youth SoccerAssociation v.

Canada (Revenue Agency), 2007 SCC 42, [2007] 3 S.C.R. 217, at paras. 8-23 and 48-49. Most recently in R. v. Summers,2014 SCC 26, [2014] 1 S.C.R. 575, the Court noted that “Parliament is presumed to know the legal context in which it legislates” andthat it is “inconceivable” that Parliament would intend to disturb well-settled law without “explicit language” or by “relying oninferences that could possibly be drawn from the order of certain provisions in the Criminal Code”: paras. 55-56. [21] There is also the related principle of stability in the law.

Absent clear legislative intention to the contrary, a statuteshould not be interpreted as substantially changing the law, including the common law: see, generally, Sullivan, at §17.5; P.-A. Côté, incollaboration with S. Beaulac and M. Devinat, Interprétation des lois (4th ed. 2009), at paras. 1793 ff. This principle, if applied toostrictly, may lead to refusal to give effect to intended legislative change. But it nonetheless reflects the common sense idea thatParliament is deemed to know the existing law and is unlikely to have intended any significant changes to it unless that intention is madeclear: Walker v.

The King, (SCC), [1939] S.C.R. 214, at p. 219; Nadeau v. Gareau, (CSC), [1967]S.C.R. 209, at p. 218; R. v. T. (V.), (SCC), [1992] 1 S.C.R. 749, at p. 764. This principle is reflected in ss. 45(2) and45(3) of the

Interpretation Act, R.S.C. 1985, c. I-21, which provide that the amendment of an enactment does not imply any change inthe law and that the repeal of an enactment does not make any statement about the previous state of the law. [22] While these interpretative principles are easy to state, how they apply in particular cases may be controversial.Sometimes, the controversy concerns the state of the common law when Parliament acted: in other words, the debate is about whetherthe term used had a clearly understood legal meaning when it was incorporated into the statute.

For example, that was the source of thedisagreement between the majority and minority in A.Y.S.A. More often, though, the difficult issue is whether Parliament has indicatedan intention to depart from the accepted legal meaning. [23] Both of these types of dispute arise in this case, and so I turn to the first question: Did the term “bestiality” have aclear legal meaning when Parliament used that term without further definition in the English version of the 1955 Code?

(2) Bestiality Meant Buggery With an Animal and Required Penetration (

a) Introduction [ 24 ] The ancient offence of sexual intercourse with an animal was, at various times, referred to as a type of sodomy, a type of buggery and as bestiality. As we shall see, whatever it was called, the offence required penetration. [ 25 ] The first Canadian offence of buggery with an animal was taken almost word for word from the English Offences against the Person Act, 1861 , 24 & 25 Vict., c. 100 (“ 1861 Act ”), s. 61.

The offence in substantially that form was carried over into the first English version of the Canadian Criminal Code, 1892 , S.C. 1892, c. 29 (“ 1892 Code ”), and continued to be in force until the offence called bestiality was introduced into the English version of the Code in the 1955 revisions: s. 147. It follows that our starting place in developing an understanding of the Canadian law is the English law from which it derived. (

b) English Offence [ 26 ] Although bestiality was often subsumed in terms such as sodomy or buggery, penetration was the essence ― “the defining act” ― of the offence. It was clear that to secure a conviction, the prosecution had to prove that “penetration of an animal, or, in the case of women, penetration by an animal, had occurred”: C. Thomas, “‘Not Having God Before his Eyes’: Bestiality in Early Modern England” (2011), 26 The Seventeenth Century 149, at p. 153. This was true from at least the mid-16th century: Thomas, at p. 154; see also A. F.

Niemoeller, Bestiality and the Law: A Resume of the Law and Punishments for Bestiality with Typical Cases from Fifteenth Century to the Present (1946); and H. Miletski, “A history of bestiality”, in A. M. Beetz and A. L. Podberscek, eds., Bestiality and Zoophilia: Sexual Relations with Animals (2005), 1. [ 27 ] Originally under the authority of the Church Courts, “buggery comyttid with mankynde or beaste” became a felony in 1533: An Acte for the punysshement of the vice of Buggerie (Eng.), 25 Hen. 8, c. 6.

It was typically men who were prosecuted for the crime because it was necessary to prove penetration to establish the commission of the offence. Women were therefore “unlikely offenders”: Thomas, at p. 158. There were nevertheless some prosecutions of women for the offence and men were prosecuted for penetrating both male and female animals: Thomas, at p. 158.

Edward Coke described buggery as including carnal knowledge (i.e. penetration) between a man or a woman and an animal: The Third Part of the Institutes of the Laws of England: Concerning High Treason, and Other Pleas of the Crown, and Criminal Causes (1797, first published 1644), at p. 59. [ 28 ] The statute from Henry’s time was repealed in 1553 but reinstated in 1562 and remained in that form until it was confirmed in 1828:

An Act for consolidating and amending the Statutes in England relative to Offences against the Person (U.K.), 9 Geo. 4, c. 31 (the “1828 statute”). That statute of 1828 clarified that “actual Emission of Seed” was not an essential element of the offence, and further that “carnal Knowledge” would be “deemed complete upon Proof of Penetration only”: s. 18; see G. Parker, “Is A Duck An Animal? An Exploration of Bestiality as a Crime”, in L. A.

Knafla, ed., Crime, Police and the Courts in British History (1990), 285, at pp. 292-93. [ 29 ] All of the other old sources that I have reviewed confirm that penetration was an essential element of the offence and that buggery with an animal was not restricted to anal intercourse: see, e.g., M. Hale, Pleas of the Crown: A Methodical

Summary (1678), at p. 117; M. Hale, Historia Placitorum Coronae (1736), vol. I, at p. 669; E. H. East, A Treatise of the Pleas of the Crown (1803), vol. I, at p. 480. (I pause to note that, contrary to Justice Abella’s understanding, there was no uncertainty about whether penetration was required. Neither the Crown nor the dissenting judge in the Court of Appeal thought that there was any lack of clarity about the fact that penetration was required before the 1955 revisions.) [ 30 ] This was the state of the law when the English 1861 Act was enacted.

Under the title “Unnatural Offences” and with the marginal note “Sodomy and Bestiality”, the 1861 Act provided: 61. Whosoever shall be convicted of the abominable Crime of Buggery, committed either with Mankind or with any Animal, shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for Life or for any Term not less than Ten Years.

The 1861 Act in s. 63 also continued the 1828 clarifications that emission of seed was not required but that penetration was. [ 31 ] The fifth edition of Russell on Crime deals with the s. 61 offence under the heading “sodomy”, making it clear that that term included buggery “with any animal”: W. O. Russell, A Treatise on Crimes and Misdemeanors (5th ed. 1877), at p. 879.

The author goes on to state that the s. 61 offence “consists in a carnal knowledge committed against the order of nature [i.e. per anum ] by man with man; or in the same unnatural manner with woman; or by man or woman in any manner with beast ”: ibid . (emphasis added). “[C]arnal knowledge” meant penetration: ibid ., at pp. 879-80. That penetration was required was made explicit in the English 1878 Draft Code: s. 101( a ).

This is also the case in the Draft Code appended to the Report of the Royal Commission appointed to consider the Law relating to Indictable Offences (1879) (the “1879 Draft Code”), s. 144 (Appendix, at p. 95). That Draft Code tracked the language of the 1861 Act by providing that “[e]very one shall be guilty of an indictable offence . . . who commits buggery either with a human being or with any other living creature”: ibid . The provision went on to specify that the offence was complete upon penetration.

In their commentary on the 1879 Draft Code, the Commissioners did not note any change from the previous law with respect to the elements of the offence: pp. 21-22. [ 32 ] The requirement for penetration is reflected in Sir James Fitzjames Stephen’s A Digest of the Criminal Law (Crimes and Punishments) (1878), art. 168, at p. 115. (Remember that since the 1828 statute, it had been clear that the “actual Emission of Seed” was not required and that “carnal Knowledge” would be “deemed complete upon Proof of Penetration only”: s. 18.) [ 33 ] The old case law is not abundant, but what there is supports the view that penetration was an essential element of the offence.

In R. v. Cozins (1834), 6 Car. & P. 351 , 172 E.R. 1272 , a case of bestiality with a ewe, Park J. directed the jury that if there was penetration, even though there had been no emission, the offence was complete. [ 34 ] This understanding of the offence continued in England for many years. Later commentators are almost uniformly of

the view that buggery with an animal required penetration. I have already referred to Russell on Crime . In 1957, in Sexual Offences: A Report of the Cambridge Department of Criminal Science , at p. 345, the director of the department, Leon Radzinowicz, commented on s. 12(1) of the Sexual Offences Act, 1956 (U.K.), 4 & 5 Eliz. 2, c. 69, which made it a felony for a person to commit buggery with another person or with an animal. This

section is virtually identical to the version of the offence found in the 1861 Act and therefore to the English version of the Canadian offence up until 1955. The report explains that [t]he crime consists of carnal knowledge, or sexual intercourse, by man with man per anum , man with woman per anum , or man or woman with beast in any manner. The word ‘sodomy’ is frequently used to indicate the offence when committed with mankind, and ‘bestiality’ when committed with an animal. [p. 345] [ 35 ] The 1965 edition of the English criminal law treatise by J. C. Smith and B.

Hogan described the elements of buggery at common law as an “intercourse per anum by a man with a man or woman; or intercourse per anum or per vaginam by a man or a woman with an animal”: Criminal Law (1965), at p. 321 (footnotes omitted). [ 36 ] The later case law is also consistent with this view. In R. v. Bourne (1952), 36 Cr. App. R. 125 , in upholding convictions of a husband for aiding and abetting his wife to commit buggery with a dog, Lord Chief Justice Goddard stated that “if a woman has connection with a dog, or allows a dog to have connection with her, that is the full offence of buggery ”: p. 128.

The court noted that the offence was “commonly called bestiality”: p. 127. (

c) Canadian Offence [ 37 ] In Canada, as in England, the early history of the offence shows that what was commonly called “bestiality” was subsumed under the offences named sodomy or buggery and that penetration was one of its essential elements. [ 38 ] The English 1861 Act was adopted, almost word for word, by the first English version of the Canadian codification of the offence in 1869:

An Act respecting Offences against the Person , S.C. 1869, c. 20, s. 63. With the marginal note “[s]odomy and bestiality”, the following offence appears: 63. Whosoever is convicted of the abominable crime of buggery committed either with mankind or with any animal, shall be liable to be imprisoned in the Penitentiary for life, or for any term not less than two years. [ 39 ] The French version of this provision, with the marginal note “ [s]odomie ” reads as follows: 63.

Quiconque est convaincu du crime abominable de sodomie, commis soit avec un être humain, soit avec un animal, sera passible de l’incarcération dans le pénitencier pour la vie, ou pour un terme de pas moins de deux ans. [ 40 ] In 1874, Henri Elz é ar Taschereau (later a judge of this Court) published The Criminal Law Consolidation and Amendment Acts of 1869, 32-33 Vict. for the Dominion of Canada, with Notes, Commentaries, Precedents of Indictments, &c .

He confirms that the offence of sodomy or buggery with an animal is committed by carnal knowledge by mankind or by womankind with “brute beast” and that “[a]s in the case of rape, penetration alone is sufficient to constitute the offence”: pp. 344-45. He also provides a model indictment for both buggery by a human and for buggery with an animal, referring to the latter as bestiality: p. 345. [ 41 ] The 1869 provision, with minor amendments in 1886, was incorporated into the first Canadian Criminal Code in 1892:

An Act respecting Offences against Public Morals and Public Convenience , R.S.C. 1886, c. 157, s. 1; 1892 Code , s. 174. This version of the offence remained in force until the 1955 revisions: Criminal Code , R.S.C. 1906, c. 146, s. 202; Criminal Code , R.S.C. 1927, c. 36, s. 202. It is worth noting that while the English version continued to refer to “buggery . . . with any other living creature”, the French version used the word “ bestialité ” to express this part of the English version of the offence.

The word “ bestialité ” has been used consistently since the 1886 Act and in all French versions of the Code since 1892. The English version read: 174. Every one is guilty of an indictable offence and liable to imprisonment for life who commits buggery , either with a human being or with any other living creature . [ 42 ] The French version was as follows: 174.

Est coupable d’un acte criminel et passible d’emprisonnement à perpétuité, celui qui commet la sodomie ou la bestialité . [ 43 ] As in England, the English language version of the Canadian statutes simply provided that buggery with an animal (i.e. “any other living creature”) was an offence, but did not further define it. However, the French version equivalent of “buggery . . . with any other living creature” being “ bestialité ” shows that buggery with an animal and bestiality were the same thing.

Thus, the use of these legal words without statutory definition puts this provision into Stephen’s first category of how the statute and the common law interact: the statute assumes “in the reader a previous knowledge . . . of the common law

definitions of certain crimes which the Act punishes but does not define”: J. F. Stephen, A General View of the Criminal Law of England (2nd ed. 1890), at p. 109; see also Stephen, A History of the Criminal Law of England , at pp.188-91.

Professor Sullivan refers to this legislative technique as “incorporation”: a legal term (in this case, buggery with an animal/ la bestialité ) is incorporated into the legislation with the legislative intent that it will continue to bear its common law meaning (§17.1). [ 44 ] Sources just before and contemporaneous with the 1892 Code confirm that this offence required penetration. [ 45 ] Before the 1892 Code , George Wheelock Burbidge defines the crime of sodomy, in part, as consisting of carnal knowledge (i.e. sexual penetration) of any animal: A Digest of the Criminal Law of Canada (Crimes and Punishments) (1890), at p. 161

(art. 213). After the Code, H. E. Taschereau’s 1893 annotated Criminal Code (i.e., commentaries, annotations and precedents on the1892 Code) states in relation to the buggery with an animal offence found in s. 174 that “[a]s in the case of rape, penetration alone issufficient to constitute the offence”: The Criminal Code of the Dominion of Canada as amended in 1893, with Commentaries,Annotations, Precedents of Indictments, &c. (1893), at p. 117. [46] The pre-1955 case of Henry v. Henry, [1953] O.J. No. 347 (QL) (C.A.), is also consistent with the view thatpenetration was required.

The court said that “there was penetration to some extent, and even if the penetration was to a very slightdegree, the offence of bestiality would be thereby committed”: para. 2. In R. v.

Wishart (1954), (BC CA), 110 C.C.C.129 (B.C.C.A.), the court relied on the English decision of Bourne, which I have referred to earlier and which stated that penetration wasrequired. [47] In my view, there can be no serious dispute that the Canadian offence of buggery with an animal/la bestialité in the1892 Code, which continued to be in force until the 1955 revisions, had a widely and generally understood meaning: the offence requiredsexual penetration between a human and an animal.

It is also clear, in my view, that the term “bestiality” was understood to meansodomy or buggery with an animal. [48] The Crown made much of the paucity of case law authoritatively settling the elements of the offence. Butrespectfully that is beside the point. The question is not whether there was binding authority from the House of Lords or the JudicialCommittee of the Privy Council setting out the elements of the offence. The question is whether the offence of buggery with an animalhad a well-understood legal meaning when it was used by Parliament without further definition in the 1892 Code.

The contemporarysources make it overwhelmingly clear that it did. Any lawyer who was asked in 1892 whether the offence of buggery with an animalrequired penetration would have replied in the affirmative. Parliament, by using that term without further definition, intended to adoptthat well-understood legal meaning. [49] The Crown also noted that there may be some room for debate about whether buggery with an animal/la bestialitéwas limited to cases of anal penetration, as discussed by Bauman C.J.B.C. in his dissenting reasons. That view is supported by at leastone legal dictionary, P. G.

Osborn, A Concise Law Dictionary (4th ed. 1954), at p. 61, “buggery”, and by Kenny’s Outlines of CriminalLaw (19th ed. 1966), at p. 205. However, as I have reviewed earlier, all other commentators, including Stephen himself, the Court ofCriminal Appeal in Bourne and detailed studies of prosecutions in England from the mid-1500s to the late 1800s support the view thatbuggery with an animal required penetration, be it vaginal or anal. In any case, the Crown’s position is somewhat beside the point wehave to decide here. On any view of the law, the 1892 Canadian offence required penetration of some kind.

There is no support ― none― for the view that penetration of some kind was not required. (

d) Conclusion on the First Question [50] We can conclude that, at least until 1955, the offence of buggery with animals/la bestialité continued to have thesame elements that it had in the English 1861 Act, a provision carried forward in virtually identical terms in the Canadian Act of 1869and into our first Code in 1892. Thus, penetration continued to be an element of the offence. We may also conclude that the term“bestiality” was understood to mean buggery with an animal. [51] That brings us to the next step in the analysis, which is to determine whether Parliament explicitly or by necessaryimplication changed this well-understood legal meaning.

(3) There Is No Express or Implied Legislative Intent to Depart From the Legal Meaning of the Term “Bestiality” (

a) The Crown’s Position: The Elements of the Offence Changed in 1955 and This Change Was Confirmed by Amendments in1988 [52] The Crown points to two legislative changes which it submits show a clear intention to expand the offence of sexualintercourse between a human and an animal to an offence proscribing all human-animal sexual activity. The first occurred in 1955 andthe intention to make this change was confirmed by amendments in 1988.

However, as I see it, the legislative history, on which theCrown relies, in fact supports the respondent’s position that bestiality continued to require penetration as one of its elements. [53] To explain why I have reached this conclusion, I will first turn to the applicable principles of statutory

interpretationand then look at the two amendments in more detail. (

b) Principles of

Interpretation (

i) Clear Language Is Required to Change the Law, Particularly Where the Change Takes Away Liberty [54] As Professor Sullivan says, “The stability of law is enhanced by rejecting vague or inadvertent change whilecertainty and fair notice are promoted by requiring legislatures to be clear and explicit about proposed changes”: §15.50. Stability andcertainty are particularly important values in the criminal law and significant changes to it must be clearly intended.

As the Court put it inT. (V.), “it is open to Parliament to change the law in whatever way it sees fit, [but] the legislation in which it chooses to make thesealterations known must be drafted in such a way that its intention is in no way in doubt”: p. 764 (emphasis added). [55] A related principle is that enactments which take away the liberty of the subject should be clear and any ambiguityresolved in favour of the subject. “It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake. . . .

Ifone is to be incarcerated, one should at least know that some Act of Parliament requires it in express terms, and not, at most, byimplication”: Marcotte v. Deputy Attorney General for Canada, (SCC), [1976] 1 S.C.R. 108, at p. 115. [56] There is no express statutory provision expanding the scope of the bestiality offence as the Crown asks us to do.And, as we shall see, there is nothing in the legislative evolution and history that supports any parliamentary intent to bring about such achange by implication. The required “clarity and certainty” are entirely lacking.

(ii) Parliament, Not the Judiciary, May Expand Criminal Liability [57] Parliament, not the judiciary, may expand the scope of criminal liability. As Cartwright J. (as he then was) said inFrey v. Fedoruk, (SCC), [1950] S.C.R. 517: . . . if any course of conduct is now to be declared criminal, which has not up to the present time been so regarded, such declarationshould be made by Parliament and not by the Courts. [p. 530] [58] This was not a new idea when Cartwright J. wrote these words in 1950. The principle was reflected in the English1879 Draft Code.

Its s. 5 provided that there would be no prosecutions for crimes at common law. The Commissioners noted that thepurpose and effect of this provision would be to put an end to the power of judges to create new common law crimes. They added thateven if the Draft Code and other statutes overlooked some common law offences, they thought “better to incur the risk of giving atemporary immunity to the offender than to leave any one liable to a prosecution for

an act or omission which is not declared to be anoffence by the Draft Code itself or some other Act of Parliament”: p. 10. The same thinking was explicitly adopted in the 1955 revisionsof our Code. It provided (in what was then s. 8; now s. 9) that “no person shall be convicted . . . of an offence at common law”, subject tothe power of judges to punish for contempt of court.

The Report of Royal Commission on the Revision of Criminal Code (1954) hadproposed a similar provision, observing that all of the offences which should be adopted from the common law were incorporated intothe 1878 Draft Code: p. 6. [59] In accordance with this principle, the courts have refrained from developing the common law meanings of legalterms used in the Code so as to extend the scope of criminal liability. Courts will only conclude that a new crime has been created if thewords used to do so are certain and definitive: Marcotte, at p. 115; R. v. McLaughlin, (SCC), [1980] 2 S.C.R. 331, at p.335; and R. v.

McIntosh, (SCC), [1995] 1 S.C.R. 686, at paras. 38-39. This approach not only reflects the appropriaterespective roles of Parliament and the courts, but the fundamental requirement of the criminal law that people must know whatconstitutes punishable conduct and what does not, especially when their liberty is at stake: see, e.g., R. v. Mabior, 2012 SCC 47, [2012] 2S.C.R. 584, at para. 14. As McLachlin J. (as she then was) cautioned: Clear language is required to create crimes. Crimes can be created by defining a new crime, or by redefining the elements of an oldcrime.

When courts approach the definition of elements of old crimes, they must be cautious not to broaden them in a way that in effectcreates a new crime. Only Parliament can create new crimes and turn lawful conduct into criminal conduct. It is permissible for courts tointerpret old provisions in ways that reflect social changes, in order to ensure that Parliament’s intent is carried out in the modern era. Itis not permissible for courts to overrule the common law and create new crimes that Parliament never intended. [Emphasis added.] (R. v. Cuerrier, (SCC), [1998] 2 S.C.R. 371, at para. 34) [60] R. v.

McDonnell, (SCC), [1997] 1 S.C.R. 948, is an example of this principle at work. The questionwas whether an appellate court had erred on a sentence appeal by overturning the sentence imposed at first instance in part on the basisof a judicially created category of offences to which were attached starting point sentences. The majority of this Court found that theappellate court had erred.

In reaching that conclusion, the Court relied on the principle that it is not for judges to create criminaloffences: by creating a category of offence within a statutory offence for the purposes of sentencing, the appellate court had “effectivelycreated an offence” contrary to the spirit if not the letter of that principle (para. 33). [61] The same underlying principle is at work in Perka v. The Queen, (SCC), [1984] 2 S.C.R. 232.

TheCourt had to determine whether the definition of the scientific term “Cannabis sativa L.” should refer to its meaning at the time thestatute was passed or at the time the infraction was committed. The Court adopted the former approach. The Court noted that not allterms in all statutes must always be confined to their original meanings. Broad statutory categories are often held to include thingsunknown when the statute was enacted and words in constitutional documents must be capable of growth and development to meetchanging circumstances.

However, that interpretative approach is most often taken when the statutory language is broad or open-textured. But where Parliament has used “specific scientific or technical” terms, it would “do violence to Parliament’s intent to give anew meaning to that term”: p. 265. [62] I will refer finally to Gralewicz v. The Queen, (SCC), [1980] 2 S.C.R. 493. One of the issues in thecase was what constitutes an “unlawful purpose” as an element of the offence of conspiracy to effect an unlawful purpose.

The majorityof the Court held that to be an unlawful purpose in this context, the purpose must be prohibited by federal or provincial legislation: p.509. The majority found no clear basis in Canadian law to support the view that the offence extended to other sorts of unlawfulpurposes. The Court relied on the principle that it is not open to the courts to create new offences or to widen existing offences as tomake punishable conduct of a type not previously subject to punishment: p. 508.

Chouinard J. for the majority put it this way: It is difficult for me to see how the mere enactment of conspiracy as a statutory offence would have the effect of extending its scopebeyond what it had been held to extend to at common law by the Canadian courts prior to its becoming a statutory offence while at thesame time Parliament enacted s. 8 [now s. 9] to exclude common law offences from the ambit of the criminal law of Canada. [p. 509] [63] These kinds of cases must be distinguished from ones in which Parliament had enacted statutory

definitions and thequestion was how much, if at all, the common law should supplement them. No such question arises here. For example, in Jobidon andCuerrier, Parliament had legislated quite extensively in relation to the meaning of “consent” and the issue was whether the statutoryprovisions were exhaustive or should be supplemented by the common law.

However, in the present case, there is not, and has neverbeen in Canada, any statutory definition ― exhaustive or otherwise ― of the elements of bestiality. [64] For the sake of completeness, I should note that the courts have taken a less restrictive approach with respect todeveloping common law defences, excuses and justifications. In this context, the Court has been willing to allow the common law toevolve and develop rather than treating it as having been frozen in time by statutory adoption.

The Court has confirmed the availabilityof, for example, the common law defences of necessity and duress to further develop them: Perka, at p. 245; R. v. Latimer, 2001 SCC 1,

[2001] 1 S.C.R. 3, at paras. 32-34; Paquette v. The Queen, (SCC), [1977] 2 S.C.R. 189; R. v. Hibbert, (SCC), [1995] 2 S.C.R. 973; R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687, at paras. 56-67. This approach is consistent with whatLaskin C.J. said in Kirzner v. The Queen, (SCC), [1978] 2 S.C.R. 487, that the Code should not be seen “as havingfrozen the power of the Courts to enlarge the content of the common law by way of recognizing new defences”: p. 496. [65] However, common law defences, excuses and justifications stand on an entirely different footing under the Codethan does the definition of offences.

While prosecution for common law crimes is explicitly prohibited (s. 9), the Code expresslypreserves common law defences, excuses and justifications: s. 8(3). The approach to the common law in those areas is thus not relevantto the question of how the courts should approach the definition of elements of offences. [66] The Crown’s position in this case directly implicates the principle that it is for Parliament and not the courts toexpand the scope of criminal liability. The Crown invites the Court to develop the common law definition of bestiality so as to expandthe scope of criminal liability for that offence.

If we accept the Crown’s position, the offence will fundamentally change from onerelating to sexual intercourse between a human and an animal to one proscribing and punishing any touching of a sexual nature betweena human and an animal. As I will explain, there is no clear statutory mandate to do so.

And, to accept that invitation would be to exceedthe proper role of the courts in defining criminal liability. [67] The trial judge’s analysis was flawed because it gave no weight to this principle and did not take into considerationthat the French version of the offence in the Code has remained substantively unchanged from 1892 to 1988. He reasoned that the courtsshould interpret the elements of the offence of bestiality so that they would “reflect current views on what constitutes prohibited sexualacts”: para. 315. This, respectfully, was a fundamental legal error.

Absent clear parliamentary intent to depart from the clear legaldefinition of the elements of the offence, it is manifestly not the role of the courts to expand that definition. [68] We should bear in mind that there are important questions of policy involved in broadening the offence of bestialityas the Crown urges us to do. That change, as we see from the trial judge’s reasons, could turn a person such as the victim in this case intoa co-perpetrator.

Recall that, if we accept the trial judge’s reasoning (an issue that I need not finally decide here), the complainant is theprincipal offender and the respondent is liable as having aided and abetted her commission of the offence. In other words, a victimbecame a co-perpetrator. This, in itself, should make us hesitate. Justice Abella is of the view that the Crown would never charge anyonein the position of this complainant and I hope that she is right. But this faith in prosecutorial discretion misses the point.

It does notprovide any comfort to those who, like me, are concerned that the trial judge’s approach, if adopted, would mean that in law thiscomplainant would be an uncharged principal offender. That legal conclusion should give us pause. [69] There are also significant policy debates about what the focus of this sort of offence ought to be. Commentators havesuggested that the focus should move away from understanding bestiality as an offence against public morals and towards seeing it as atype of animal abuse.

Consistent with this view, the Law Reform Commission of Canada recommended in 1978 that the offence berepealed, being of the view that the offence would still be covered by the various laws for the protection of animals enacted by theprovinces or contained in the Code: Working Paper 10, Report on Sexual Offences (1978), at p. 30.

And as the intervener, AnimalJustice, submitted in this Court, the fundamental values at stake in this debate include the protection of vulnerable animals from the risksposed by improper human conduct and the wrongfulness of sexual conduct involving the exploitation of non-consenting participants. [70] My point is not to take sides in the policy debate. The point, as I see it, is that these are important points of penal andsocial policy. And they are matters for Parliament to consider, if it so chooses. Parliament may wish to consider whether the presentprovisions adequately protect children and animals.

But it is for Parliament, not the courts, to expand the scope of criminal liability forthis ancient offence. [71] With these principles in mind, I turn to examine in more detail the text, legislative evolution and history andcontemporary commentary on the 1955 and 1988 revisions. (

c) The 1955 Revisions [72] As discussed, the English version of the Code did not use the term “bestiality” until 1955, but the French version did.Immediately before the 1955 revisions, the respective versions provided: [Buggery] 202. Every one is guilty of an indictable offence and liable to imprisonment for life who commits buggery, either with a human being orwith any other living creature. 202.

Est coupable d’un acte criminel et passible d’emprisonnement à perpétuité, celui qui commet la sodomie ou la bestialité. (R.S.C. 1927, c. 36) [73] In the 1955 revisions, the word bestiality was first introduced into the English version of the Code and the referenceto “buggery . . . with any other living creature” was deleted, but with no definition of either the term “buggery” or “bestiality”. The newsection read: [Buggery or bestiality]

147. Every one who commits buggery or bestiality is guilty of an indictable offence and is liable to imprisonment for fourteen years. [ 74 ] Apart from modifying the sentencing range, the French version of s. 147 in the 1955 Code remained the same as before the 1955 revisions. Indeed, the new

section read: 147. Est coupable d’un acte criminel et passible d’un emprisonnement de quatorze ans, quiconque commet la sodomie ou bestialité. [ 75 ] As in the 1892 Code , the elements of the offence are not specified. The C rown says that the introduction of the offence under that name shows a parliamentary intent to differentiate the offence from the old offence of buggery and that the use of the new language was intended to modernize the historical offence of buggery committed with animals. I cannot agree. (

i) Text, Legislative Evolution and History [ 76 ] I turn first to the text and the legislative evolution and history of the 1955 provisions. [ 77 ] The text of the 1955 revisions does not suggest that any significant change in the law was intended. In fact, quite the opposite is the case. The word “bestiality” was substituted for the words “buggery . . . with any other living creature” in the English version of the offence, but the French version of the offence remained unchanged.

This appears to be simply the substitution of a more precise legal term in the English version for the previous more general expression. The absence of a statutory definition of either term is consistent only with the intent to adopt the accepted legal meanings of both terms. And the absence of change to the French version undermines the Crown’s position that any substantive change was intended by the amendment of the English version. Unlike Justice Abella, I cannot see in this amendment that the two offences were “rendered asunder from each other”.

That reasoning cannot be accepted in the face of the fact that the French version of the Code had always used different words for the human buggery and the animal buggery offence in this section. The change to the English version in 1955 to more closely match the French cannot bear the interpretative weight that the Crown and Justice Abella attach to it. And the suggestion that this minor change to the English version is somehow linked to amendments to the animal cruelty offence has no foundation in the principles of statutory

interpretation or, as we shall see, in the legislative evolution and history. [ 78 ] We should note that the term “bestiality” was used in the law before it was introduced into the Code in 1955. I have already referred to the use of the word in the marginal note to the 1861 Act and to the case of Bourne in which Lord Chief Justice Goddard observed that the offence of buggery with an animal was “commonly called bestiality”: p. 127.

There is also the use of the term “bestiality” by Taschereau in relation to his model indictment in relation to buggery with an animal: Taschereau (1874), at p. 345; see also Thomas, at p. 154; and A. K. Gigeroff, Sexual Deviations in the Criminal Law (1968), at p. 105. And of course there is the use of the French word “ bestialité ” in the Code from 1892 on. [ 79 ] There is nothing in the text of the 1955 revisions to suggest that any change in the elements of the offence was intended. The absence of revision to the text of the French version makes clear that no substantive change was intended.

Contrary to the view expressed by Justice Abella, there is no ambiguity in this provision. It is a simple incorporation of a legal term with a meaning that had been well understood for centuries. [ 80 ] If Parliament intended the significant change in the law as the Crown contends, it would surely have been noticed either in parliamentary debates or by commentators. But so far as counsel or I can determine, no notice of the alleged change can be found in either. [ 81 ] The legislative evolution and history of the sexual offences in the 1955 revisions are exhaustively reviewed in Gigeroff, at pp. 69 ff.

From the initial introduction of the draft bill in the House of Commons and the Senate in 1952, until Royal Assent in June 1954, there was no change in and no discussion of the bestiality section. An explanatory note added by the Senate Standing Committee on Banking and Commerce, to which the initial bill was referred, indicated that the new s. 147 was a change in form only from the previous Code ’s s. 202: Gigeroff, at p. 76.

There is thus nothing in the legislative history and evolution of s. 147 to support the Crown’s position that the 1955 revisions brought about a significant change in the elements of the offence. The use of a word with a legal meaning without further definition and the explanatory note that the

section was changed in form only suppo

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