R. v. D.L.W., (2016) 388 B.C.A.C. 1 (SCC)

• Judge: McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Côté and Brown, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 09, 2016
• Jurisdiction: Canada (Federal)
• Citations: (2016), 388 B.C.A.C. 1 (SCC);2016 SCC 22

R. v. D.L.W. (2016), 388 B.C.A.C. 1 (SCC);

    670 W.A.C. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2016] B.C.A.C. TBEd. JN.053

Her Majesty the Queen (appellant) v. D.L.W. (respondent) and Animal Justice (intervener)

(36450; 2016 SCC 22; 2016 CSC 22)

Indexed As: R. v. D.L.W.

Supreme Court of Canada

McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Côté and Brown, JJ.

June 9, 2016.

Summary:

The British Columbia Supreme Court, in a decision reported at [2013] B.C.T.C. Uned. 1327, found the accused guilty on 13 counts arising from sexual molestation of his two step-daughters. The charges included one count of bestiality (Criminal Code, s. 160(1)). The accused appealed the conviction on the bestiality count. The sole issue was whether penetration was an element of the offence of bestiality.

The British Columbia Court of Appeal, in a decision reported at (2015), 371 B.C.A.C. 51; 636 W.A.C. 51, allowed the appeal and acquitted the accused. The majority concluded that the term "bestiality" had a common law meaning that included penetration as one of its essential elements. The legislative history of the offence in Canada did not show any parliamentary intent to depart from that meaning. Bauman, C.J.B.C., dissenting, would have dismissed the appeal, finding that penetration was not an element of bestiality under the Canadian offence brought into force in 1955. The Crown appealed.

The Supreme Court of Canada dismissed the appeal. The offence of bestiality under s. 160(1) of the Code required sexual intercourse between a human and an animal. Abella, J., dissenting, would have allowed the appeal and restored the conviction, finding that by the 1988 Amendments to the Code, Parliament intended that penetration was irrelevant.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Courts - Topic 2015.3

Jurisdiction - General principles - Statutory interpretation - [See first Criminal Law - Topic 12 ].

Criminal Law - Topic 11

Drafting and interpretation of criminal statutes - General principles - [See second Criminal Law - Topic 12 ].

Criminal Law - Topic 12

Drafting and interpretation of criminal statutes - Definition of offences - Bestiality - The appellant Crown submitted that bestiality no longer required penetration, and was committed by engaging in any sexual activity with an animal - The Supreme Court of Canada, in dismissing the appeal, stated that the Crown's submission "asks us, in effect, to create a new crime. But that is not our role. 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 ... . 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's position 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 the Crown's proposed changes to the elements of bestiality are to be made, they must be made by Parliament. Like the majority of the Court of Appeal, I conclude that penetration remains, as it has always been, an essential element of the offence of bestiality." - See paragraphs 2 to 4.

Criminal Law - Topic 12

Drafting and interpretation of criminal statutes - Definition of offences - Bestiality - The issue concerned whether penetration was an essential element of the offence of bestiality in s. 160(1) of the Criminal Code - The term "bestiality" was introduced into the English version of the Code in 1955 - The Supreme Court of Canada stated that the issue "concerns whether the term 'bestiality' has a well-understood legal meaning in the common law and, if so, whether Parliament intended to depart from that meaning when it used the word without further definition in the English version 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. ... 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 legal meaning into the statute. Second, any departure from that legal meaning must be clear, either by express language or necessary implication from the statute. Finally, apart from criminal contempt, there can be no liability for common law crimes. Creating and defining crimes is for Parliament; the courts must not expand the scope of criminal liability beyond that established by Parliament." - See paragraphs 13 to 18.

Criminal Law - Topic 12

Drafting and interpretation of criminal statutes - Definition of offences - Bestiality - The Supreme Court of Canada, in concluding that penetration was an essential element of the offence of bestiality in s. 160(1) of the Criminal Code, considered how the common law interacted with statutory criminal law - The term "bestiality" was introduced into the English version of the Code in 1955 - In this case, the Code assumed the continuing existence of the common law definition of "bestiality" - "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 this offence, as the trial judge did. Any expansion of criminal liability for this offence is within Parliament's exclusive domain." - See paragraph 19.

Criminal Law - Topic 704.1

Sexual offences, public morals and disorderly conduct - Sexual offences - Particular offences - Bestiality - [See third Criminal Law - Topic 12 ].

Statutes - Topic 511

Interpretation - General principles - Source of construction - State of the law prior to enactment of statute - [See third Criminal Law - Topic 12 ].

Statutes - Topic 520

Interpretation - Time for determination of meaning of words - [See third Criminal Law - Topic 12 ].

Statutes - Topic 1450

Interpretation - Construction where meaning is not plain - Aids or methods to determine meaning - Legislative history - Reference to prior versions or amendments - [See third Criminal Law - Topic 12 ].

Counsel:

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.

Solicitors of Record:

Attorney General of British Columbia, Vancouver, British Columbia, for the appellant;

Eric Purtzki and Garth Barriere, Vancouver, British Columbia, for the respondent;

Animal Justice, Toronto, Ontario, for the intervener.

This conviction appeal was heard on November 9,  2015,  before  McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Côté and Brown, JJ., of the Supreme Court of Canada. The Court delivered the following judgment and reasons for judgment, in both official languages, dated June 9, 2016:

Cromwell, J. (McLachlin, C.J.C., Moldaver, Karakatsanis, Côté and Brown, JJ., concurring) - see paragraphs 1 to 124;

Abella, J., dissenting - see paragraphs 125 to 153.