Elnami v Tasmania
[2020] TASSC 54
•12 November 2020
[2020] TASSC 54
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Elnami v Tasmania [2020] TASSC 54 |
| PARTIES: | ELNAMI, Ammar Ibrahim |
| v | |
| STATE OF TASMANIA | |
| FILE NO: | 61/2020 |
| DELIVERED ON: | 12 November 2020 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 15 October 2020 |
| JUDGMENT OF: | Estcourt J |
| CATCHWORDS: |
Criminal Law – Particular offences – Bestiality – Interpretation – Demurrer pleaded by accused on the basis
that the crime of bestiality is only committed where penetration is with a penis by, or of, an animal –
Accused inserted finger into dog's anus, attempted to masturbate dog's penis, attempted to induce dog
to lick his penis and attempted to penetrate dog's anus with his penis – Held that s 122 of the Criminal Code requires vaginal penetration or anal penetration by, or of, an animal – Demurrer allowed –
Accused discharged.
Criminal Code Act 1924 (Tas) s 122.
R v Bourne (1952) 36 Cr App R 125, followed.
R v DLW [2016] 1 SCR 402, referred to.
Aust Dig Criminal Law [2171-2671]
REPRESENTATION:
Counsel:
State: A Shand Accused: K Dolbey
Solicitors:
State: Director of Public Prosecutions Accused: Legal Aid Commission of Tasmania
| Judgment Number: | [2020] TASSC 54 |
| Number of paragraphs: | 36 |
Serial No 54/2020
File No 61/2020
AMMAR IBRAHIM ELNAMI v STATE OF TASMANIA
| REASONS FOR JUDGMENT | ESTCOURT J |
12 November 2020
The issue on the demurrer
1 By indictment number 218/2020, the accused Ammar Ibrahim Elnami has been indicted for the crime of bestiality, particularised as follows:
"[Mr Elnami] at Hobart on or about the 15th day of September 2019 engaged in sexual activity with a dog, namely by inserting his finger into the dog's anus on multiple occasions, touching and attempting to masturbate the dog's penis on multiple occasions, touching the dog's anus, attempting to induce the dog to lick his penis and attempting to penetrate the dog's anus with his penis."
2 The accused has filed a written demurrer pursuant to s 354(4) of the Criminal Code and seeks an order that he be discharged forthwith from that indictment on the basis that the crime of bestiality is only committed if there is penetration with a penis by, or of, an animal.
3 The State contends that in 2017, s 122 of the Code was amended by the Criminal Code Amendment (Sexual Assault) Act 2017, so as to replace the crime of "unnatural crimes" with the crime of "bestiality". It is submitted on behalf of the State that this amendment was part of a suite of legislative reforms which, amongst other things, broadened the definition of "sexual intercourse" and made other amendments intended to modernise the language of the Code.
4 Counsel for the State, Ms Shand, in her comprehensive written submissions places reliance on the second reading speech of the Criminal Code Amendment (Sexual Assault) Bill 2017 (the Bill), in which she submits the reason for the amendment to s 122 was outlined as follows:
"During development of the Bill, it became apparent that the definition of 'sexual intercourse' to the crime of 'unnatural sexual intercourse' under section 122 was not appropriate and did not support prosecution for all acts of bestiality. Accordingly, the Bill amends the crime by retitling the crime as 'bestiality' and removing reliance on the definition of 'sexual intercourse.'"
5 Prior to this amendment, s 122 provided that any person who had sexual intercourse with an animal was guilty of a crime. Based on the then current definition of sexual intercourse in the Code, s 122, was sufficiently broad to include cases of a person performing oral vaginal or anal sexual intercourse on an animal or vice versa.
6 Thus, the definition of bestiality in the Code which operated in Tasmania between 1987 and 2017 had departed from the common law definition of bestiality, which required penetration and ejaculation, and was already much wider than the original common law definition.
7 In light of the Bill's second reading speech, the State submits that a clear parliamentary intention existed to widen the scope of the crime beyond its post-1987 iteration. Ms Shand argues that it must be concluded from the words of that speech that Parliament was of the view that the 1987 definition did not cover "all acts of bestiality" sought to be criminalised by Parliament. It also appears clear that Parliament intended to move away from the definition of bestiality relying on any requirement for "sexual intercourse", however defined.
8 Assuming that to be so however, the question is whether the current drafting of s 122 of the Code achieves that objective.
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The common law
9 The interrogation of the question of the effect of renaming the crime constituted by s 122 as "bestiality" comprised of the undefined term "an act of bestiality" must necessarily commence, although perhaps not end, with the meaning of the word bestiality, either at law, or in common parlance, or both.
10 Counsel for the accused, Mr Dolbey, in his most comprehensive and helpful written submissions recounts the history of the common law crime of bestiality, originally a species of the crime of buggery, as follows:
"Discussion of the term 'bestiality':
7 The history of the term 'bestiality' and 'buggery' in English law is considered
by the majority judgment of the Canadian Supreme Court in R v DLW [2016] 1 SCR
402.
Cromwell J delivering a joint judgment for the majority traced the history of the term 'buggery' and 'bestiality' in England and Canada from 1533 until 1955 at paragraphs [24]-[49]. In their Honours extensive analysis they conclude the offence of sexual intercourse with an animal has at various times been referred to as a type of 'sodomy', 'buggery' or 'bestiality'.
Their Honours reasoned the terms were interchangeable at [24] and traced the first penalisation of the offence to an Act of Parliament in 1533: 'An Acte for punysshement of the vice of Buggerie' (Eng), 25 Hen 8 c 6" at [26].
The statute enacted during the reign of Henry VIII was repealed in 1533 and reinstated in 1562 where it remained essentially the same in England until 1828. From that time, it was consolidated in An Act for consolidating and amending the Statues in England relative to Offences against the Person, 9 Geo 4, c 31. Section XV of that Act stated:
'And be it enacted, That every Person convicted of the abominable Crime of Buggery, committed either with Mankind or with Animal, shall suffer Death as a Felon.'
Their Honours noted at [28] the crime had always required penetration of or by the animal and the 1828 statute, at least in England, clarified that 'actual emission of seed' was no longer required as an element of the offence.
8 The change in the law in relation to ejaculation can be noted in the reported case of R v Cozins [1834] 172 ER 1272-3. The reported version notes the defendant was charged with bestiality with a ewe. A witness saw him penetrating the sheep and upon being interrupted by the witness calling out he was observed 'withdrawing in a state of erection'. Park J in summing up, left the verdict open and is quoted as follows:
'In the former state of the law, the prisoner would have been entitled to an acquittal, but, as the law is now if there was penetration, the capital offence is completed, although there has been no emission.'
9 The reception of criminal laws of England into the then colony of New South Wales may have occurred as early as 1787 by Letters Patent, however the passage of the Australian Courts Act 1828 (UK) 9 Geo 4, c 83 established courts and applied the laws of England for the administration of justice in the dominions of New South Wales and Van Diemen's Land. That Act came into force from 25 July 1828.
10 There are few decisions on this crime in Australia. In R v Packer [1932] VLR 225 the accused appealed to the Full Court of Victoria a conviction of aiding and abetting a boy aged 13 to commit the crime of buggery on a bitch. The appellant argued he could not be convicted of aiding and abetting the offence because of the common law presumption that a boy aged under 14 is incapable of 'canal knowledge'.
The Court held despite the application of that principle to rape, it did not extend to the crime of buggery. In its reasons the Court seemed to assume that carnal knowledge is an essential requirement for the crime, although it noted (at 227) that buggery may be committed in various forms in contrast to rape, which 'entirely depends on the physical capacity of a male person'. The Court further noted (at 228) 'a female may be convicted of the crime, committed even with an animal'.
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11 The English Court of Criminal Appeal decision of R v Bourne (1952) 36 Cr App R 125 upheld an appeal by a man charged with aiding and abetting his wife to commit buggery with a dog. Lord Chief Justice Goddard remarked (at 127) that the crime of buggery is commonly referred to as 'bestiality' and further (at 129) that the offence of buggery may be committed against a man or beast and that a woman may commit the offence if: '[she] has connection with a dog, or allows a dog to have connection with her, that is the full offence of buggery' and 'the offence of buggery with man or beast does not depend upon consent'.
The statements support the notion that 'bestiality' is a term recognised in law, that it is a species of buggery and that it required sexual penetration by the man or the penis of the animal against the woman to establish the offence.
12 Kirby J in Bounds v R [2006] HCA 39 discussed the term 'bestiality' in the context of whether a jury may have been unfairly prejudiced by hearing evidence an accused person had possession of bestiality images. In considering the term Kirby J remarked at [93] in dicta that 'bestiality' is an unusual and vivid word, rare in everyday speech and at [92] the term 'ordinarily has a legal meaning involving sexual penetration by or of an animal'. His Honour cited as authority for that position the decision of R v Bourne (supra)."
11 Mr Dolbey also refers to the history of the crime as traced by Taylor, L in Speaking the Unspeakable: Buggery, Law and Community Surveillance in New South Wales 1788-1838 (2020), unpublished but to appear in the December issue of the Law and History Review 2020. The article can be accessed from Cambridge Online:
core/content/view/CB625EBAA8D6ACE6B06AC32E0879D371/S0738248019000774a.pdf/speaking _the_unspeakable_buggery_law_and_community_surveillance_in_new_south_wales_17881838.pdf.
The Code history
12 Mr Dolbey then sets out, in his written submissions, the history of the Tasmanian Code provision in the following terms (which are accepted by the State as correct):
"History of the Tasmanian offence:
13 Section 122 of the Code first enacted in Chapter XIV 'Crimes against Morality' stated:
'122 Unnatural carnal knowledge
Any person who
(I) Has carnal knowledge of any person against the order of
nature;(II) Has carnal knowledge of an animal; or (III) Consents to a male person having carnal knowledge of him or her against the order of nature – is guilty of a crime.
Charge: Unnatural carnal knowledge.'
Carnal knowledge was defined under section 1 of the Criminal Code to state:
'Carnal knowledge' means the penetration to any the least degree of the organ alleged to have been known, by the male organ of generation.
14 Analysing the conduct criminalised by this section as originally enacted by the Code supports the proposition the provision replicated the English law on buggery as it existed after the passage of the 1828 Offences Against the Person Act (UK), 9 Geo 4, c 31.
15 The title of the offence was changed to 'unnatural sexual intercourse' by the Criminal Code Amendment (Sexual Offences) Act 1987 (Tas). The 1987 amendments changed the Code definition of carnal knowledge to a definition
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of 'sexual intercourse' (although the application of the definition remained the
same) and modernised other language in relation to sexual offences.16 Following the amendments, the Code offence under section 122 was stated as follows:
'122 Unnatural crimes
Any person who –
(a)
has sexual intercourse with any person against the order of nature;
(b) has sexual intercourse with an animal; or (c)
consents to a male person having sexual intercourse with him or her against the order of nature
is guilty of a crime
Charge: unnatural sexual intercourse'
Where sexual intercourse as amended by the 1987 Act was defined in section
1 of the Code as:'sexual intercourse means the penetration to the least degree of the vagina, genitalia, anus, or mouth by the penis and includes the continuation of sexual intercourse after such penetration.'
17 The Criminal Code Amendment Act 1987 (Tas) s 4 repealed section 122 entirely and replaced it with:
'122 Unnatural crimes crime.
Charge: Unnatural sexual intercourse'
This amendment effectively removed the two subsections of the provision which penalised penetrative sexual intercourse between men, or anal intercourse between men and women.
18 The current crime of bestiality was inserted following the passage of the Criminal Code Amendment (Sexual Assault) Act 2017 (Tas). This Act amended, inter alia, the definition of sexual intercourse by removing the previous definition in section 1 of the Code. It also retitled and re-defined the crime in section 122 to state:
'122 Bestiality
Any person who engages in an act of bestiality is guilty of a crime.
Charge: Bestiality."
13 The new definition of sexual intercourse in s 2B of the Code was as follows:
"2B Sexual intercourse
(1) In this Code – sexual intercourse means –
(a)
the penetration, to the least degree, of a person's vagina, genitalia, anus or mouth by a penis; or
(b)
the penetration, to the least degree, of a person's vagina, genitalia or anus by a body part of a person other than a penis; or
(c)
the penetration, to the least degree, of a person's vagina, genitalia or anus by an object held or manipulated by, or attached to, another person; or
(d)
the continuation of an act of penetration referred to in paragraph (a), (b) or (c) of this definition.
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(2) In this section –
penetration does not include penetration carried out for a proper medical purpose, for
the purposes of hygiene or for any purpose that is authorised by law."
14 It is immediately apparent that, defined in such terms, sexual intercourse can only be relevant penetration by or of "persons" and by or of animals. The effect of that is that if s 122 had been left unchanged when s 2B was added, there would have been no definition of sexual intercourse in the Code capable of application to the crime of unnatural sexual intercourse. While leaving the term undefined would have narrowed the previous reach of the crime, substituting the term "an act of bestiality" without defining that term, arguably does so even more indeterminably.
15 As has already been seen however, the State submits that in the light of the second reading speech to the Bill, it is difficult to attribute an intention to Parliament to return to a narrower definition than that which predated the 1987 amendments to the Code. Counsel for the State goes further and submits that the 2017 amendment occurred as part of a suite of amendments broadening the definition of "sexual intercourse", with the intention "to bring Tasmania into line with other jurisdictions". Ms Shand submits that it is clear that in both common law and Code jurisdictions within Australia "the law has developed to encompass more expansive definitions of sexual intercourse, and in other jurisdictions these reforms have encompassed bestiality".
16 Nonetheless, to my mind the question remains whether, if such was the intention of Parliament,
that intention was realised by the use of the undefined term – "an act of bestiality". That question cannot
be answered by reference to the second reading speech alone.
17 As to the relevance of the second reading speech, counsel for the accused submits as follows:
"Second Reading Speech
30 In considering the purpose or intention of legislation, the Court may have regard to extraneous materials of parliament: s 8B of the Acts Interpretation Act 1931
(Tas).
31 The relevant passage of the Second Reading Speech for the Criminal Code Amendment (Sexual Assault) Bill 2016 is as follows:
'Clause 4(m) of the Bill amends and renames Section 122 of the Criminal Code, the crime of "unnatural sexual intercourse", in relation to acts of bestiality. During development of the Bill, it became apparent that the application of the definition of "sexual intercourse" to the crime of "unnatural sexual intercourse" under section 122 was not appropriate and did not support prosecution for all acts of bestiality. Accordingly, the Bill amends the crime by retitling the crime as "bestiality" and removing reliance on the definition of "sexual intercourse".'
32 The second reading speech provides no assistance in ascertaining whether parliament intended to depart from the common law concepts of bestiality. The statement by the Minister is ambiguous and it cannot be discerned whether the Minister was referring to the previous definition of sexual intercourse as being not appropriate for the offence in s 122, or whether the Minister is saying the expanded definition of sexual intercourse being inserted by the Bill was inappropriate to the crime under section 122.
33 Further the passage provides no examples of the conduct Parliament intended
for the new offence to cover, or whether Parliament intended for this crime to depart
from its common law definition.
34 Courts have always exercised caution when considering second reading speeches and other extraneous material in circumstances where parliamentary intention has not been made clear by analysis of the statute: Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; as noted by Heydon J in Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 506 [86] who stated of second reading speeches:
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'Excessive recourse to second reading speeches is one of the blights of modern
litigation […] It may be accepted that what Ministers say about what theyintended the enactment to provide is no substitute for an examination of what the enactment actually provides, only an aid to it. It may be accepted the proposition is particularly salutary when the enactment is said to derogate from fundamental rights or damage fundamental interests. But the fact remains the courts can investigate what Ministers say. There are rare occasions when that investigation has value.'
35 It is submitted it would be particularly dangerous to use this second reading
speech to justify a departure from the common law concept of 'bestiality' and expand
the scope of criminal conduct penalised by the offence in section 122."
18 As to the meaning of the word "bestiality" as contended for by the State, Ms Shand submits as
follows:
"12 Indeed, 'bestiality' has not remained a static concept over time. The State submits that it now has a well-understood ordinary meaning that encompasses any sexual activity between a person and an animal. It was this meaning that Parliament intended when adopting the word 'bestiality' into the Code.
13 Bestiality is defined in the Macquarie Dictionary (Revised Third Edition) 2001 as 'sexual relations of a human with an animal'. It is defined more narrowly in the New Shorter Oxford Dictionary 1993 as 'copulation between a person and an animal'. 'Copulation' is relevantly defined as 'the physical union of male and female (esp. animals) by means of their genitals, as in the act of procreation; sexual intercourse'.
14 In Butterworth's Australian Legal Dictionary, bestiality is defined as follows: '1 In criminal law, the common law and statutory offence of sexual penetration by or with an animal or bird. The offence may be committed by either a man or a woman. Anal penetration may not be essential. Attempting to commit an act of bestiality is also an offence.
2 Sexual activity of any kind between a human being and an animal (citations
omitted).'
15 According to LexisNexis Australian Legal Words and Phrases 1900-2018, Vol 1, two acts of Parliament in Australia define the term – the Classifications of
Publications Act 1984 (Tas) s 3(1) (now repealed and replaced by the Classification (Publications, Films and Computer Games) Act 1995 (Tas)) and the Criminal Law Consolidation Act 1935 (SA). Both acts give the term a wide meaning including 'sexual activity' between humans and animals.
16 Even if the intention of the Tasmanian Parliament was to insert the common law concept of bestiality into the Code, it must be the case that this would be the common law definition of bestiality as it stood in 2017, and not an older version. The common law definition is most recently stated in R v Bourne (1952) 36 Cr App R 125. Bourne requires penetration, but has widened the traditional common law concept of bestiality to also include vaginal penetration, not only anal penetration.
17 In some Australian common law jurisdictions there has been a general
broadening of the traditional definition of bestiality through legislative changes. For
example:
a
In Victoria under the Crimes Act 1958, the scope of conduct that could amount to a bestiality charge has been widened to include a range of sexual acts including placing any object into the vagina or anus of an animal, and includes any conduct with an animal that would constitute sexual penetration within the meaning of the Act if the animal was a person.
b
In South Australia, in November 2008, bestiality was inserted into the Criminal Law Consolidation Act 1935 and was defined broadly as 'sexual activity between a person and an animal'.
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c In the Australian Capital Territory, the crime of bestiality in s 63A of the Crimes Act 1900 is also defined broadly to include 'sexual activity of any kind with an animal'.
19 To my mind, neither the Macquarie Dictionary nor the Oxford Dictionary definitions of the word "bestiality" support Ms Shand's submission that the word now has a well-understood ordinary meaning that encompasses "any sexual activity" between a person and an animal. The Butterworths' Australian Legal Dictionary attempts too wide a "legal" definition, which is obviously not correct in all Australian jurisdictions and does not purport to reflect common parlance, and whatever may be the case in other Australian jurisdictions, tells us nothing about the law in Tasmania.
20 As to the decision in R v Bourne (1952) 36 Cr App R 125, it did not purport to alter the common law but merely to explain it. As Mr Dolbey submitted, the statements in that case "support the notion that 'bestiality' is a term recognised in law, that it is a species of buggery and that it required sexual penetration by the man or the penis of the animal against the woman to establish the offence." In my view he is correct in his submission that "analysing the conduct criminalised by [s 122] as originally enacted by the Code "supports the proposition the provision replicated the English law on buggery as it existed after the passage of the 1828 Offences Against the Person Act (UK), 9 Geo 4, c 31".
21 As to the relevance of the Classification (Publications, Films and Computer Games) Enforcement Act 1995, Mr Dolbey submits:
"36 The Crown submitted on 25 September 2020 that the Classification (Publications, Films and Computer Games) Enforcement Act 1995 ('Classification Act') definition of 'bestiality' should have relevance to the interpretation of 'bestiality' in the Criminal Code.
37 Part 8 of the Classification Act creates offences to make, reproduce or possess a 'bestiality product' (ss 72 and 74):
'Section 71 defines a bestiality product as:
bestiality product means a publication, film or computer game that
depicts in pictorial form bestiality;
Section 3 defines bestiality as:
bestiality means sexual activity of any kind between a human being
and an animal.'
38 Generally a definition in one statute has limited relevance and does not extend
to another statute: M Collins & Son Pty Ltd v Bankstown Municipal Council (1958) 3
LGRA 216; cf Yager v R (1977) 13 ALR 247 at 256-7 per Mason J:
'A statutory definition exists for the purpose of the particular statute in which it is contained, unless it appears in a statute expressed to have a more general application, such as the Acts Interpretation Act ... There is, therefore, no legitimate foundation for resorting to definitions contained in [an Act] for the purpose of modifying or qualifying another statutory definition contained in a different Act of Parliament.'
39 There are some exceptions where a definition has been held to be in pari materia ie the Acts are so closely related that it would be desirable to achieve consistency, or the Acts explicitly provides it should be read in conjunction with another Act: Bistricic v Rokov (1976) 11 ALR 129 at 133. This is not such a case. The Classification Act is uniform state and Commonwealth legislation enacted to classify and restrict the publication, sale, distribution, possession or viewing of censored media content. There are numerous ancillary offences related to its purpose. The Classification Act does not exclusively regulate media content depictions of illegal acts.
40 If Parliament intended the term 'bestiality' in the Classification Act to be
consistent with the Code, Parliament would have legislated to achieve this
consistency."
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22 Counsel for the State concludes as follows:
"The State submits that 'bestiality' is no longer only a legal word of technical meaning. In modern times has a widely accepted broader meaning encompassing any sexual activity between humans and animals. In light of the Second Reading Speech of the Criminal Code (Sexual Offences) Bill 2017, it must be the case that Parliament intended to legislate for a broader definition that the one already in place, that included any kind of sexual activity between humans and animals."
23 Counsel for the accused, not surprisingly, contends to the contrary, and as already seen, calls in aid the decision of the Canadian Supreme Court in R v DLW [2016] 1 SCR 402.
24 As I have already said on two occasions in these reasons, Parliament may have wished to change the law as to the crime of bestiality, but the question remains whether by amending s 122 as it did, the law was changed and, if so, in what manner.
25 It is useful to commence with Mr Dolbey's summary of R v DLW which is as follows:
"Decision of the Supreme Court of Canada:
42 The Supreme Court of Canada has recently decided on the issue of whether the offence of 'bestiality' required penetration in R v DLW [2016] 1 SCR 402.
43 DLW was charged with multiple indecent sexual offences against his stepdaughters committed over the course of 10 years. He was ultimately sentenced to 16 years imprisonment for various offences of abuse. Among the offences, DLW was convicted on a single count of bestiality. It was alleged DLW brought the family dog into the bedroom with his stepdaughter when she was 15 or 16 years old, he attempted to force her to have sexual intercourse with it, but when that failed, he spread peanut butter on her vagina and took photographs while the dog licked it off.
44 The Canadian Criminal Code included an offence for 'bestiality' which had been inserted in 1955 the section read as follows:
'160 (1) Every person who commits bestiality is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.'
As with the Tasmanian crime the term 'bestiality' as used in s 160 was not defined elsewhere in the Canadian Criminal Code.
45 The trial judge, Romilly J, accepted the Crown's argument the conduct referred to in paragraph [43] could constitute bestiality and convicted the accused. The decision was appealed first to the Court of Appeal of British Columbia and subsequently to the Canadian Supreme Court; both courts held, by majority, that bestiality required 'penetration'.
46 The majority 6-1 judgment, delivered by Cromwell J dismissed the appeal. The
primary reasons:
'Bestiality meant buggery and requires penetration with an animal
The majority traced the history of the offence of buggery in England at [26]- [36] to conclude that bestiality was a 'specie of buggery' and a legal term requiring actual penetration.
The majority traced the history of the offence of buggery and later bestiality in Canada to conclude the Canadian offence did not depart from the English offence.
The change by the Canadian Parliament of the offence from 'buggery' to 'bestiality' (in the 1955 amendments to the Canadian Criminal Code) was inconsequential and did not imply any intention to broaden the scope of the offence as the terms are the same.'
The term 'bestiality' was a term of technical legal meaning
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Parliament adopted a term of legal meaning and is presumed to have intended that definition
See the majority decision at [20] – [23].
It is not for the courts to expand the scope of criminal liability
The Court declined an invitation by the Crown to expand the scope of criminal liability for bestiality see the majority judgment at [57]-[71]."
26 As to Parliament's use in the amended s 122 of the word "bestiality", a word which in my view had a clear legal meaning, and has not been shown to be understood differently in common parlance, I note that R v DLW at [20]-[23] it was said:
Parliament Intends the Legal Meaning of Legal Terms
"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. For example, that was the source of the disagreement between the majority and minority in AYSA More often, though, the difficult issue is whether Parliament has indicated an intention to depart from the accepted legal meaning."
When Parliament uses a term with a legal meaning, it 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. This
principle has been applied in a number of cases such as Will-Kare Paving &
Contracting Ltd v Canada, 2000 SCC 36, [2000] 1 SCR 915, at paras 29-30; Townsend
v Kroppmanns, 2004 SCC 10, [2004] 1 SCR 315, at para 9; AYSA Amateur Youth
Soccer Association v Canada (Revenue Agency), 2007 SCC 42, [2007] 3 SCR 217, at
paras 8-23 and 48-49. Most recently in R v Summers, 2014 SCC 26, [2014] 1 SCR 575,
the Court noted that 'Parliament is presumed to know the legal context in which it
legislates' and that it is 'inconceivable' that Parliament would intend to disturb well-
settled law without 'explicit language' or by 'relying on inferences that could possibly
be drawn from the order of certain provisions in the Criminal Code': paras 55-56.
There is also the related principle of stability in the law. Absent clear legislative
intention to the contrary, a statute should not be interpreted as substantially changing
the law, including the common law: see, generally, Sullivan, at §17.5; P-A Côté in
collaboration with S Beaulac and M Devinat, Interprétation des lois (4th ed 2009), at
paras 1793 ff. This principle, if applied too strictly, may lead to refusal to give effect
to intended legislative change. But it nonetheless reflects the common sense idea that
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: Walker v The King, [1939]
SCR 214, at p 219; Nadeau v Gareau, [1967] SCR 209, at p 218; R v T (V), [1992] 1
SCR 749, at p 764. This principle is reflected in ss 45(2) and 45(3) of the Interpretation
Act, RSC 1985, c I-21, which provide that the amendment of an enactment does not
imply any change in the law and that the repeal of an enactment does not make any
statement about the previous state of the law.
27 As to the legal meaning of the word "bestiality" the majority in R v DLW said at [24]-[36]:
"(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, SC 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
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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 (ie 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 (UK), 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, eg, 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:
'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 [ie 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
11 No 54/2020
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 ER 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 (UK), 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."
28 I respectfully agree with that analysis.
29 As to the extent to which the second reading speech should be taken into account, at [57]-[71] the majority in R v DLW said:
"Parliament, Not the Judiciary, May Expand Criminal Liability
Parliament, not the judiciary, may expand the scope of criminal liability. As CartwrightJ (as he then was) said in Frey v Fedoruk, [1950] SCR 517:
… if any course of conduct is now to be declared criminal, which has not up to the
present time been so regarded, such declaration should be made by Parliament and not was reflected in the English 1879 Draft Code. Its s 5 provided that there would be no prosecutions for crimes at common law. The Commissioners noted that the purpose and effect of this provision would be to put an end to the power of judges to create new common law crimes. They added that even if the Draft Code and other statutes
by the Courts. [p 530]
12 No 54/2020
overlooked some common law offences, they thought 'better to incur the risk of giving a temporary immunity to the offender than to leave any one liable to a prosecution for an act or omission which is not declared to be an offence by the Draft Code itself or some other Act of Parliament': p 10. The same thinking was explicitly adopted in the 1955 revisions of 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 to the power of judges to
punish for contempt of court. The Report of Royal Commission on the Revision of Criminal Code (1954) had proposed a similar provision, observing that all of the offences which should be adopted from the common law were incorporated into the 1878 Draft Code: p 6.
In accordance with this principle, the courts have refrained from developing the common law meanings of legal terms 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 the words used to do so are certain and definitive: Marcotte, at p 115; R v McLaughlin, [1980] 2 SCR 331, at p 335; and R v McIntosh, [1995] 1 SCR 686, at paras 38-39. 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: see, eg, R v Mabior, 2012 SCC 47, [2012] 2 SCR 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 old crime. When courts
approach the definition of elements of old crimes, they must be cautious not to broaden them in a way that in effect creates a new crime. Only Parliament can
create new crimes and turn lawful conduct into criminal conduct. It is permissible for courts to interpret old provisions in ways that reflect social changes, in order to ensure that Parliament's intent is carried out in the modern era. It is not permissible for courts to overrule the common law and create new crimes that Parliament never intended. [Emphasis added.]'
R v Cuerrier
(, [1998] 2 SCR 371, at para 34) the case was what constitutes an 'unlawful purpose' as an element of the offence of conspiracy to effect an unlawful purpose. The majority of 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 unlawful purposes. The Court relied on the principle that it is not open to the courts to create new offences or to widen existing offences as to make punishable conduct of a type not previously subject to punishment: p 508. Chouinard J for the majority put it this way:
R v McDonnell, [1997] 1 SCR 948, is an example of this principle at work. The question
was whether an appellate court had erred on a sentence appeal by overturning the
sentence imposed at first instance in part on the basis of a judicially created category
of offences to which were attached starting point sentences. The majority of this Court
found that the appellate court had erred. In reaching that conclusion, the Court relied
on the principle that it is not for judges to create criminal offences: by creating a
category of offence within a statutory offence for the purposes of sentencing, the
appellate court had 'effectively created an offence' contrary to the spirit if not the letter
of that principle (para 33).
The same underlying principle is at work in Perka v The Queen, [1984] 2 SCR 232.
The Court had to determine whether the definition of the scientific term 'Cannabis
sativa L' should refer to its meaning at the time the statute was passed or at the time the
infraction was committed. The Court adopted the former approach. The Court noted
that not all terms in all statutes must always be confined to their original meanings.
Broad statutory categories are often held to include things unknown when the statute
was enacted and words in constitutional documents must be capable of growth and
development to meet changing 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 a new meaning to that term': p 265.13 No 54/2020
It is difficult for me to see how the mere enactment of conspiracy as a statutory offence would have the effect of extending its scope beyond what it had been held to extend to at common law by the Canadian courts prior to its becoming a statutory offence while at the same time Parliament enacted s 8 [now s 9] to exclude common law offences from the ambit of the criminal law of Canada. [p 509]
These kinds of cases must be distinguished from ones in which Parliament had enacted statutory definitions and the question was how much, if at all, the common law should supplement them. No such question arises here. For example, in Jobidon and Cuerrier, Parliament had legislated quite extensively in relation to the meaning of 'consent' and the issue was whether the statutory provisions were exhaustive or should be supplemented by the common law. However, in the present case, there is not, and has
never been in Canada, any statutory definition ― exhaustive or otherwise ― of the
elements of bestiality. broadening the offence of bestiality as 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 into a co-perpetrator. Recall that, if we accept the trial judge's reasoning (an issue that I need not finally decide here), the complainant is the principal offender and the respondent is liable as having aided and abetted her commission of the offence. In other words, a victim became a co-perpetrator. This, in itself, should make us hesitate. Justice Abella is of the view that the Crown would never charge anyone in the position of this complainant and I hope that she is right. But this faith in prosecutorial discretion misses the point. It does not provide any comfort to those who, like me, are concerned that the trial judge's approach, if adopted, would mean that in law this complainant would be an uncharged principal offender. That legal conclusion should give us pause.
For the sake of completeness, I should note that the courts have taken a less restrictive
approach with respect to developing common law defences, excuses and justifications.
In this context, the Court has been willing to allow the common law to evolve and
develop rather than treating it as having been frozen in time by statutory adoption. The
Court has confirmed the availability of, 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 SCR 3, at paras 32-34; Paquette v The Queen, [1977] 2 SCR 189; R v
Hibbert, [1995] 2 SCR 973; R v Ruzic, 2001 SCC 24, [2001] 1 SCR 687, at paras 56-
67. This approach is consistent with what Laskin CJ said in Kirzner v The Queen,
[1978] 2 SCR 487, that the Code should not be seen 'as having frozen the power of the
Courts to enlarge the content of the common law by way of recognizing new defences':
p 496.
However, common law defences, excuses and justifications stand on an entirely
different footing under the Code than does the definition of offences. While prosecution
for common law crimes is explicitly prohibited (s 9), the Code expressly preserves
common law defences, excuses and justifications: s 8(3). The approach to the common
law in those areas is thus not relevant to the question of how the courts should approach
the definition of elements of offences.
The Crown's position in this case directly implicates the principle that it is for
Parliament and not the courts to expand the scope of criminal liability. The Crown
invites the Court to develop the common law definition of bestiality so as to expand the
scope of criminal liability for that offence. If we accept the Crown's position, the
offence will fundamentally change from one relating to sexual intercourse between a
human and an animal to one proscribing and punishing any touching of a sexual nature
between a 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 exceed the proper role of the courts
in defining criminal liability.
The trial judge's analysis was flawed because it gave no weight to this principle and did
not take into consideration that the French version of the offence in the Code has
remained substantively unchanged from 1892 to 1988. He reasoned that the courts
should interpret the elements of the offence of bestiality so that they would 'reflect
current views on what constitutes prohibited sexual acts': para 315. This, respectfully,
was a fundamental legal error. 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.14 No 54/2020
There are also significant policy debates about what the focus of this sort of offence ought to be. Commentators have suggested that the focus should move away from understanding bestiality as an offence against public morals and towards seeing it as a type of animal abuse. Consistent with this view, the Law Reform Commission of Canada recommended in 1978 that the offence be repealed, being of the view that the offence would still be covered by the various laws for the protection of animals enacted by the provinces or contained in the Code: Working Paper 10, Report on Sexual Offences (1978), at p 30. And as the intervener, Animal Justice, submitted in this Court, the fundamental values at stake in this debate include the protection of vulnerable animals from the risks posed by improper human conduct and the wrongfulness of sexual conduct involving the exploitation of non-consenting participants.
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 and social policy. And they 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 ancient offence.
With these principles in mind, I turn to examine in more detail the text, legislative evolution and history and contemporary commentary on the 1955 and 1988 revisions."
30 Recognising that DLW was concerned with a simple substitution of the word "bestiality" for the
former words "buggery … with any other living creature" and that there was no evidence that any
substantive change was intended, I nonetheless respectfully agree with the foregoing analysis by the
majority in that case. Only Parliament, not the Court, may expand the scope of criminal liability.31 I note that in Re Bolton; Ex Parte Douglas Beane (1987) 162 CLR 514, at 517-18 Mason CJ and Wilson and Dawson JJ said:
"The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law."
32 Mr Dolbey's concluding submission is that Parliament has not expressed a clear intention that
"bestiality" should be construed to mean anything other than as it was understood at common law –
"penetration by or of an animal". I accept that submission.
33 For the reasons he advances as analysed above I am of the view that the word "bestiality" has a well understood legal meaning, that Parliament must be taken to have used the word in that sense and that the second reading speech cannot be substituted for the text of the law.
34 Section 122 of the Code requires an act of bestiality as expounded in R v Bourne (above), namely penile penetration by, or of, an animal (which term has historically been taken to include any animal or bird). Any change effected to s 122 by the 2017 amendment was inconsequential.
35 So understood the indictment is bad as the particulars do not disclose, and could not if proven, constitute the crime of bestiality contrary to s 122.
36 The demurrer pleaded by the accused is allowed and the judgment of the Court is that the accused is discharged from the premises set forth in the indictment, and is discharged accordingly. I release him from his bail.
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