Ultra Vires


Bestiality, Statutory Interpretation, and the Baffling Injustice of a Narrow Approach

“Do you think that today’s Supreme Court bench would interpret a piece of legislation in a way that protects the purpose of said legislation, or limit itself to recognize only what is explicitly written?”

Brian Langille’s question stemmed from the 1944 case of Steeles v Louisville & Nashville Railway Co., wherein the Supreme Court of the United States (SCOTUS) interpreted the Railway Labour Act to hold that a union must represent all employees without discrimination. It so ruled despite there being no specific prohibition on racial discrimination in the Act.

The SCOTUS decision reflected a deft understanding of legal principles and moral values, allowing it to be unfettered by a “gap” in the legislation that the union was trying to exploit. Had the Court used a more conservative, narrow interpretation of the Act, perhaps it would have permitted the union to continue to discriminate against African-Americans because doing so was not explicitly forbidden.

So, the question for us is whether the Supreme Court of Canada, in similar circumstances, would uphold the purpose of legislation or limit itself to only what is explicitly written.

Well, in 2016, the SCC was confronted with exactly this question.

In a 2016 case, R v D.L.W., the SCC was asked to consider the case of a man charged with fourteen counts of various crimes. Charges included sexual assault, sexual interference, invitation to sexual touching, sexual exploitation, making and possessing child pornography, bestiality, and compelling to commit bestiality. The accused was found guilty of thirteen of those crimes at trial. However, on appeal, the bestiality charge was dropped. Accordingly, the Crown appealed to the SCC to have the bestiality charge reinstated.

The accused was charged with bestiality after he compelled the family dog to perform oral sex on his sixteen-year-old stepdaughter. The defence argued that the charges of bestiality should be dropped since the 1955 law prohibiting bestiality only specified “buggery” (i.e. anal penetration) of an animal as bestiality and, although the dog was engaged in a sexual act, the act itself was not bestiality because the animal was not itself penetrated.

So, technically, (*insert air quotes*) the defense is correct (*air quotes*) in saying that the 1955 legislation on bestiality did not specifically prohibit oral sex with an animal. However, to claim that this omission should exonerate the man is plainly playing semantics with a decade’s old lawnot to mention insulting to common sense.

For example, if your mother tells you to refrain from eating cake before dinner, will you escape punishment by instead eating cupcakes? Although your mother did not specifically prohibit cupcakes before dinner, a rational interpretation of her rule would suggest that the intended purpose was to prevent one’s appetite being spoiled by prior consumption of sugar.

Consequently, it is unlikely that, upon discovery of your actions, your mother will shake her fists and say, “Drat! Such cunning! I cannot punish you!” Although you adhered to the letter of your mother’s rule (do not eat cake before dinner), you have broken the purpose and spirit of her rule (avoiding sweets before dinner).

Cupcakes aside, the SCC was faced with a similar argument in R v D.L.W. from the defence: that since only penetration was listed under the 1955 bestiality provision, every other sexual act with an animal was fair game. This frankly inane argument was a clear exploitation of an imagined loophole from antiquated legislation. Certainly, our Supreme Court bench won’t fall for such a ruse? They have heard my cupcake analogy before, right?

However, this case was not about cupcakes. This case involved a man forcing an animal to sexually abuse a child. Moreover, instead of a spoiled appetite, the SCC’s decision involved convicting a man of a crime under the Criminal Code. Consequently, the SCC is grimly charged with considering all interpretations in a rational and fair manner.

I wish I could say that the SCC saw through the ruse and protected the dignity of the animal; regrettably, all but one of seven justices were convinced by the defence, ruling that the man was not guilty because the 1955 provision did not clearly spell-out that “compelling an animal to commit oral sex on a child” was bestiality. Thus, by adhering to a rigid interpretation of antiquated legislation, the SCC produced a baffling precedent: so long as there is no penetration, sexual acts with an animal do not amount to bestiality.

Only one Supreme Court Justice saw through the exploitation of the anachronistic legislation and recognized the man’s actions as bestiality, and I bet every law student in the country can guess which one.

It was, of course, Justice Rosalie “The Living Legend” Abella.

In her dissent, Justice Abella advocated for common sense, writing that:

I do not see the absence of a requirement of penetration as broadening the scope of bestiality. I see it more as a reflection of Parliament’s common sense assumption that, since penetration is physically impossible with most animals and for half the population, requiring it as an element of the offence eliminates from censure most physically exploitative conduct with animals.

Indeed, what is the purpose of the bestiality legislation, if not to protect animalswho cannot possibly consentfrom sexual abuse? Unfortunately, there is only one Justice Abella, and so the exploitation of the legal system carried the day, and a man who should have been found guilty of this grotesque abuse of an animal was instead acquitted by the current bench of the Supreme Court of Canada.

In the wake of this animal abuse case, we return to my professor’s question: would the current bench be shackled by exploited loopholes in legislation, or could it interpret and protect the legislative purpose? Our class was left in a heavy silence by this question. Only Professor Langille’s bittersweet remark broke the stillness: “Well, most likely Rosie would”.

I hope that we might see more jurists of the same caliber as Justice Abella on the Supreme Court bench soon.

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