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R. v. D.L.W. 2016 SCC 22
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R. v. D.L.W. 2016 SCC 22
Style of cause:R. v. D.L.W. 2016 SCC 22
Appellant: Her Majesty The Queen
Respondent:D.L.W. and Animal Justice (Intervener)
Date heard before the court: November 9, 2015
Date decision was released:June 9, 2016
Previous court: Supreme Court of Canada
Judges in majority: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Côté and Brown JJ.
Judges in concurrence: McLachlin C.J. and Moldaver, Karakatsanis, Côté and Brown JJ.
Judges in dissent: Abella J.
Issue on appeal:Whether the legal meaning of the term “bestiality” has well understood in common law? If yes, then whether Parliament anticipated leaving from that meaning when “bestiality” was first usedin Criminal Code (English version)?
Background Information
D.L.W, who was the respondent in this case, after thirty-eight-days trial convicted to perform sexual offense with his two stepdaughters. He used his stepdaughters and family dog for a sexual purpose. When his stepdaughter was 15 to 16 years old, he tried his family dog to do intercourse with his daughter in her bedroom. He wanted to make intercourse video between step-daughter and dog, but when he got failed, he put peanut butter on her vagina. The dog licked that peanut butter while the respondent made a video during the process. Later on, the respondent again asked her daughter to repeat the process so he can make videos and can use it for a sexual purpose. Trail found that all his activities were for a sexual purpose, so the term "bestiality" came under discussion during the trial.
The respondent appeals that within the bestiality, penetration is the element that is considered as an offense, and there is no penetration occurred in the case. Therefore, the respondent ought to have been released. The crown made an argument that penetration is not the only element that is considered in bestiality, and the meaning of bestiality is unambiguous in criminal code, which explained that any sexual interaction between humans and animals is bestiality. The concurring opinion was based on the conclusion that penetration is an essential of bestiality while dissenting opinion was made on the conclusion that penetration is not the element of bestiality. Common law plays an important role while defining criminal conduct in Canada. Common law concepts are commonly used to define the elements of statutory offense. In this case, common laws were applied to understand the concept of bestiality because this term was added without any definition, which leads to trial and different opinions by the judges.
Majority Opinion
The majority opinion was 6 of 7 judges against the respondent. The majority opinion was against the respondent, who believes that penetration is an essential element in bestiality; therefore, the appeal by the respondent should not be dismissed. Six out of seven judges gave opinions against the respondent, while only one judge was in favor of the respondent and provided the dissenting opinion.
Concurring Opinion(s)
McLachlin C.J. and Moldaver, Karakatsanis, Côté, and Brown JJ gave the concurring opinion that criminal offense has been totally statutory in Canada. The main issue in the case was whether the penetration is required in the offense of bestiality or not. They considered the previous offense known as "buggery with an animal." This offense indicated that penetration is an element of bestiality. However, the parliament did not provide a definitive and clear language for term bestiality. Any expansion of criminal liability for this offense is within Parliament's exclusive domain. Parliament should have a clear definition and explanation of the term, and if no definition is provided that its explanation cannot be generated unless parliament clearly indicates the reason.
Judges gave reasoned that no clear meaning could be drawn about the bestiality, and the only way is to consider the criminal law to conclude the case. Therefore, "buggery with an animal" is the case that is used to understand the correlation between penetration and bestiality. In this case, when the parliament used the term bestiality, it gave clearly meaning for criminal code that penetration is an essential element of bestiality. Therefore, the prosecution, in this case, should have provided evidence to prove the penetration of dog, or in case of the daughter, penetrating by animal had occurred. Otherwise, the appeal would not be dismissed. This was the state of the law when the Offences Against the Person Act, 1861 was passed in Britain. This meaning of offense was used in the Canadian criminal code (English version) in 1892 and implemented until the term "bestiality" was introduced in the revision of the English version of the code during 1955. Parliament intended to adopt the term "bestiality without further definition, which well-understood legal meaning.
In conclusion, opposing the reasoning of dissent's view, the majority stated that penetration is not perfectly legal in all types of sexually exploitative acts. In the codes, there are various provisions that are introduced to protect the people, especially children, to protect from sexual activities with the animals which do not essentially involve penetration.
Dissenting Opinion(s)
Abella J. provided opposite opinions and used criminal laws to explain his opinion. He gave the example of the 1954 amendment according to which penetration was excluded from the term bestiality, and hence, two separate terms were used that is bestiality and buggery. In addition, the dissenting judge gave the reason that penetration may result in an absurdity, and it does not stop an adult from inciting a minor to have intercourse with the animals. Therefore, penetration cannot be considered as the essential elements of the bestiality that is why the appeal should be dismissed.
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