With the passage of Bill C-84 last week, the definition in section 160 of the Criminal Code now encompasses any contact for a sexual purpose between a person and an animal.
The legislation, which was introduced by former Justice Minister Jody Wilson-Raybould last October, also amends sections 445.1(1)(b) and 447 to expand existing animal cruelty laws and animal-fighting provisions to cover a broader range of activities and animals.
That includes promoting, arranging and profiting off animal fighting, as well as breeding, training or transporting an animal to fight. The bill also expands provisions to prohibit the keeping of an arena for the purposes of animal fighting.
“To me this was a no brainer,” said an Ontario Crown attorney who was not authorized to speak on the record. “The second that decision came out from the Supreme Court, it should have been tabled. It’s disappointing it took this long, but at least it has happened. This change was absolutely necessary.”
In R v. D.L.W. in June 2016, the court upheld the acquittal of a British Columbia man who was charged with bestiality after compelling the family dog to sexually abuse his 16-year-old stepdaughter.
Lawyers for the man argued that the 1954 bestiality law only covered penetration of an animal. The justices agreed, saying it would be inappropriate for courts to expand that definition beyond what was intended by the politicians who drafted the original law.
At the House of Commons justice committee, the bill was amended to allow a court to prohibit anyone who is convicted of bestiality from owning or living with animals for any period deemed appropriate. Previously, the most someone could get was three years prohibition under a probation order.
Those convicted of bestiality will also be added to the national sex offenders registry.
A court can also order restitution, and have an accused pay a person or organization for the care of animals that have been involved in these offences.
“This is an excellent step forward,” said Barbara Cartwright, CEO of Human Canada. “Three years is too long for this loophole to be open.”
She’s thrilled the government has recognized and entrenched in law the link between violence against humans and violence against animals.
Research has shown a significant correlation — known as the violence link — between animal cruelty, crimes of domestic violence and child abuse. If an animal is being abused, it's likely the women and children in a situation are as well. Among women in shelters who have fled domestic violence, one study out of the University of Windsor found 89 per cent reported the same kind of violence against their pet. Despite this, until now, the law has treated animal abuse and violence as something separate from other forms of violence."
While the link had some recognition in the Code’s sexual offences section, which recognizes that committing an act of bestiality in front of a child harms the child, it didn’t consider how it harms the animal.
Though Humane Canada’s work with the legal community, Cartwright said they’ve found that while there are prosecutors who bring up the violence link, it doesn’t happen often enough and isn’t well understood by the courts.
The requirement to add names to the sex offenders registry is a step towards changing that.
“It’s critical to animal and child protection, given how often these crimes interest with one another,” she said.
“It provides prosecutors with a clear path forward on these offences — which is important. And it will also help with community safety because anyone registered has to check in and they can be more readily tracked.”
Camille Labchuk, an animal lawyer and executive director of Animal Justice, intervened in R v. D.L.W. when it was before the top court because her organization felt no one was taking the animals into account.
“(The Crown) focussed on the violence and potential harm to children, but they made few arguments as to why the bestiality offence needed to be construed broadly to take animal interests into account,” she said.
"Our argument was that it is an offense that can only be committed by exploiting a vulnerable animal who can’t consent to the conduct.”
While she said the length it has taken to close this loophole has meant there were cases of bestiality that weren’t prosecuted, and officers with SPCAs across the country didn’t have all the tools they needed to do their job, the court’s ruling did prompt public discussion around the issue. While people often think that Canada has strong animal protections in place in the law, this showed that wasn’t the case.
“This case made it pretty clear that we have a problem,” Labchuk said. “Sometimes it takes a shock to the system for people to walk up and pay attention.”
In 2016, after the government defeated Bill C-246, a private member’s bill introduced by a Liberal MP that would have started to overhaul some of Canada’s animal cruelty provisions, Justice Minister Jody Wilson-Raybould committed to a full review. Her successor David Lametti made clear at both the Senate and House committee studying this bill that he is committed to that work — and looking well beyond just the provisions in the Code.
There were calls during meetings on this bill for an all-party committee to look at how to modernize and improve animal welfare protection legislation in Canada, and to recognize animals as sentient beings.
"The minister acknowledged very bluntly that he sees this (bill) as a small first step," Labchuk said.
"I don't understand why that's not something the Liberals prioritized during this sitting of Parliament. It's obviously on Canadian minds, given the groundswell of support for this bill (and others that recently passed, banning the captivity of whales and dolphins, as well as the shark fin trade). Hopefully, that will be enough motivation to have the commitment if they're re-elected."