Our first reaction to the Supreme Court of Canada’s decision striking down part of the Criminal Code’s prohibition on bestiality was incredulousness: the newspapers and broadcasters were playing a joke on readers and viewers. Sadly, they were not. On June 9, all but one of the wise jurists on the Supreme Court decided that a ban on bestiality that did not involve actual penetration was unconstitutional. We shudder to think of the ermine-robed justices sitting in the lounge behind their hallowed chamber discussing the intricacies of penetrative versus non-penetrative bestiality.
It is a truism that bad cases make bad laws. In this case, the Court threw out a British Columbia man’s bestiality conviction after he compelled his 16-year-old stepdaughter to spread peanut butter on her vagina and forced the family dog to lick it off. (He also unsuccessfully tried to force the dog to penetrate the girl, but the canine was uncooperative.) Justice Thomas Cromwell did not think that the unidentified Prince George man was guilty of the crime of bestiality because, “penetration has always been understood to be an essential element of bestiality,” even though the 1954 statute did not define the term explicitly. In a rare deference to the common law tradition, Cromwell wrote for the majority, “the legislative history and evolution of the relevant provisions show no intent to depart from the well-understood legal meaning of the term.”
The issue is not one of judicial activism, but moral madness. Our justices are incapable of making wise decisions. They called upon Parliament to re-write the bestiality law; we are not looking forward to a public debate on sex with animals, if parliamentarians take up the Court’s suggestion.
For both the majority and Rosalie Abella, in her dissent, the central argument was whether bestiality was “exploitive” of the animal; six justices did not think so, while Abella thought it was. Absent from any consideration was whether human-animal sex was harmful to people, that bestiality is unbefitting the dignity of the human person.
There was minimal coverage and almost no commentary on the decision in the mainstream media. Politicians did not issue press releases or make statements in Parliament. The case, known as R. v. D.L.W., was virtually ignored, and in some ways it is understandable. Bestiality is an unpleasant topic – indeed, this paper wades into the topic with an editorial but no news story this month. In a decadent culture, any discussion of sex with animals could be further coarsening.
Justice Cromwell wrote on behalf of the majority that the bestiality law’s “focus should move away from understanding” it “as a type of offence against public morals and towards seeing it as a type of animal abuse.” Indeed, to the extent that there was any public discussion, this was it: does the private member animal cruelty bill of Liberal MP Nathaniel Erskine-Smith (Beaches-East York) do enough to protect animals from harm of bestiality. We think the debate needs to go further: how do we reclaim the sense that laws uphold right and wrong conduct, and can be expressive of public morality. If Parliament reconsiders the Criminal Code’s strictures on bestiality, we hope that the discussion extends beyond animal cruelty and that there is a place for human dignity, which presumes that there good and evil.