Last month, the Supreme Court of Canada heard oral arguments in the case R. v. D.L.W.The issue for appeal is not exactly garden variety. The Supreme Court has been asked to determine whether the offence of “bestial*ty” in the Criminal Code requires penetration.
Background
Thefacts are not in dispute and are disturbing to say the least. The accused respondent committed various sexual assaults on his two minor step-daughters over a ten-year period. This included, but was not limited to, applyingpeanut butter to the vagin* ofhis step-daughter and then filming the family dog lick it off.
The respondentwas charged with 14 separate Criminal Code offences, includingtwo counts of sexual assault, two counts of sexual interference, two counts of invitation to sexual touching, four counts of sexual exploitation, making child p*rnography, possession of child p*rnography, bestial*ty and compelling a person to commit bestial*ty. At trial before Justice Romilly of the British Columbia Supreme Court, he was found guilty of every offence except compelling bestial*ty. The respondentwas sentenced to 16 years in prison, which included 2 years for the crime of bestial*ty. He appealed the bestial*ty conviction to the B.C. Court of Appeal seeking to have his total sentence reduced from 16 to 14 years.
At the B.C. Court of Appeal
The three-member panel of the Court split 2-1 on whether the crime of bestial*ty requires penetration. But both the majority and the dissent basedtheir reasons on theoriginal meaningof “bestial*ty” as it appearsin the Criminal Code.
The majority began its analysis by citing the “well-established interpretive principle that the words of a statute are to be construed as they would have been the day after the statute passed.”Working from this premise, the majority noted thatpenetration had always been an element of bestial*ty at common law. The offencewas incorporated into the first Criminal Code in 1892, which prohibited “buggery, either with a human being or any other living creature.” There was no dispute that “buggery” required penetration. In 1954, theCriminal Codewas amended by introducing the term “bestial*ty” and removing the phrase “either with a human being or any other living creature.” In 1985, two separate offences were created, one for “anal intercourse” and the second for “bestial*ty.”
Based on this statutory history and contemporaneous literature, the majority concluded that bestial*ty never ceased to require penetration. There was no evidence that the 1954 amendment had sought to create a new offence, only to reword an old one. “bestial*ty” was essentially “buggery with an animal” and there was no dispute that buggery required penetration. Had Parliament intended to expand the scope of the offence “one would have expected it to do so directly, using clear and specific language”especially in the context of criminal law,which requires“clear and definitive language”for conduct to be outlawed. The majority thus concluded that the meaning of bestial*ty in theCriminal Codehad always (and thus continued) to require penetration as an element of the offence. As such, the accused’s conviction on that count was overturned.
Chief Justice Bauman dissented. Bauman C.J.B.C. agreed that the words of a statute must be construed “as they would have been the day after the statute passed,” but took a different view of the original meaning. In Bauman C.J.B.C.’s opinion, the 1954 amendment removed the penetration requirement implicitly. It did so by creatingtwo separate offences: buggery and bestial*ty. If bestial*ty simply meant “buggery with an animal” – in other words if bestial*ty was merely a subset of buggery – then the inclusion of the term bestial*ty would have been superfluous since it would already have beencaptured by “buggery.” Applying another well-established principle of statutory interpretation – that “no legislative provisionshould be interpreted so as to render it mere surplusage” –Bauman C.J.B.C. reasonedthat bestial*ty must be distinct from buggery in that it does not require penetration.
Bauman C.J.B.C. also accepted the Crown’s argument that requiring penetration would lead toan “absurdity,” since theCriminal Codeoutlaws sexual touching of a minor, but would not, on the majority’s reading, prevent an adult from having a dog lick his genitals in the presence of a minor, or from inciting a minor to have oral sex with an animal. Since Parliament would clearly not have intended theseresults, Bauman C.J.B.C. reasoned, it follows that bestial*ty must not require penetration.
Analysis
The Supreme Court is faced with two distinct issues: 1) what isthemeaning of bestial*ty as it appears in the 1954 and 1985 versions of the Criminal Code?And 2) should theoriginal meaning govern, or should the Court adopt a “progressive” interpretation?
The Original Meaning of “bestial*ty”
In determining the meaning of bestial*ty at the time of the relevant amendments, the Supreme Court will have to decide who got it right at the B.C. Court of Appeal: the majority or the dissent.
The Court of Appeal’s decision demonstrates that a proper textual analysis requires far more than ‘looking up words in a dictionary’; it requires judges who are trained and well-versed in the principles of statutory interpretation to apply and, in some cases, balance those principles. Both the majority and the dissent should be lauded for delivering well-reasoned and persuasive opinions that dispassionately rely on the statutory context and history, along with relevantextraneous sources.
The issue effectivelyboils down to whether the 1954 amendment to the Criminal Code created a new offence or simply reworded an old one. To this end, the majority at the Court of Appeal relied onthe canonthat new offences must be created in “clear and definitive language”, while the dissentrelied on two canons: a) that Parliament is presumed not to employ superfluouslanguage, and b) that the text should be interpreted so as to avoid absurdities. Each canon must be examined to determine whether it is actually applicable in the present case, and if so, how it ought to be balanced against a competing applicable canon.
With respect to the first canon, there can be no doubt of its applicability to the present case. We are dealing here with a criminal offence andthus with an individual’s liberty. It is a basic principle of any free society that everything is permittedexcept that which is proscribed by law. There can be no doubt that, prior to 1954, bestial*ty required penetration. To abandon this requirement in 1954 would be tantamount to creating a new offence that had never before existed at law or under theCriminal Code.The majority is absolutely correct that absent “clear and definitivelanguage” to the contrary, the nature of the offence does not change. And insofar as there is any ambiguity, the related ‘rule of lenity’ states that the ambiguity should be resolved in favour of the accused, whose liberty is at stake, as opposed to the state.
The canons cited by the dissent are, by contrast, of very questionable utility to the present case. With respect to the presumption against surplusage, it is far from clear that reading bestial*ty to require penetration would render it “mere surplusage.” In light of the statutory history, the contemporaneous external sources, and the principlethatParliament does not create new offences except through clear and definitive language, the much more plausible readingof the 1954 amendment is that it was the meaning of buggery, not bestial*ty, that underwent a change. Buggery initially meant any form of “unnatural” penetration, which would have included anal sex with a human or anal or vagin*l sex with an an animal. By the time of the 1954 amendment, however, it would appear that buggery had been confined to unnatural (anal) sex with a human; hence why a distinction was drawn between buggery and bestial*ty. This interpretationis consistent with the 1985 amendment, which removedthe word buggery altogether and inserted the words “anal intercourse” in its place – the clear implication being that the term “buggery” in the 1954 version was also confined to“anal intercourse” with another human.
Moreover, even if the dissent is correct that requiring penetrationcreates superfluous language, the majority’s construction should still be preferred. The presumption against surplusage is just that: a presumption. Thecourts must “endeavour, where possible, to attribute meaning to each word employed by the Legislature in the statute” (Morguard Properties Ltd. v. Winnipeg (City), [1983] S.C.J. No. 84 (Emphasis Added)). However,if in doing so, the court runs afoul of the “clear and definitive language”rule and the rule of lenity, then that presumption should be rebutted.In other words,it is more plausible to conclude that Parliament mistakenly inserted superfluous language than it is to suppose that Parliament mistakenly createda new and ambiguous offence.
The dissent’s reliance on the rule against absurdity is alsomisplaced. This rule must be interpreted relatively narrowly, lest “absurdity” come to mean any “undesirable” result (as defined by the court). There will almost always be cases on the margins that escape the law’s grasp, just as there will often be cases that are brought within the law’s ambit despite being disconnected from the law’s purpose. The “absurdity” litmus test must be that no“reasonable legislator” wouldhave enacted the provision. The court should examine absurdities that are apparent on the face of the text itself, rather than “absurdities” resultingfrom the text’s application to a specific factual scenario.
Thedissent’s argumentthat certain conduct would remain legal under the majority’sconstruction does not create an absurdity in law. It is certainly a strong argument in favour of enacting newcriminal laws; but it does not rise to the level of a textual absurdity. The ‘reasonable legislator’ may very well have wanted to limit bestial*ty to penetrative acts for any number of reasons. Indeed, prior to 1954, there is no dispute that the offencewaslimited to penetration and had been since time immemorial.
The dissent is also incorrect in suggesting that an adult who has a dog lick his genitals in the presence of a minor would currently escape prosecution. That adult would be rightly charged and convicted with exposing himself to a minor.
In sum, the canons of construction relied upon by the dissent are either misplaced or misapplied. The most relevantinterpretive principle in this context is that new offences must be created through clear and definitive language. Conduct that is outlawed must be unambiguouslyproscribed by law, and the accused must be afforded the benefit of the doubt wherever possible. There can therefore be no doubt that a proper application of the rulesof statutory interpretation supports the majority’s conclusion. The offenceof bestial*ty requires penetration.
Should the Original Meaning Govern?
Both the majority and dissent were in agreement that the court’s proper role was to expound the meaning of bestial*ty at the time of the 1954 and 1985 amendments. They differed as to that meaning, but were in complete agreement as to the applicability of the original meaning canon. Before the Supreme Court, however, the intervener, Animal Justice, argued that the meaning of bestial*ty must be based upon “contemporary Canadian values” which take into account 1) the need to protect vulnerable animals, and 2) the wrongfulness of sexual conduct involving the exploitation of non-consenting participants. In effect, Animal Rights is calling for a “progressive” interpretation of bestial*ty, not unlike the constitutional “living tree” doctrine.
The application of theliving tree doctrine to theCriminal Codewould be extremely unwise. The Supreme Court has drawn a bright line distinction between ordinary statutes on the one hand and the Constitution on the other. Only the latter is subject to a progressive interpretation; the former is guidedby the rules of statutory interpretation, including the original meaning canon. The reason for the different treatment is that, unlike a statute, the Constitution “cannot easily be amended when it becomes out of date…” (see Peter Hogg,Constitutional Law of Canada (3rd ed. 1992), pp. 413-14). And where the lawin question is a criminal statute, the courts have repeatedly affirmed that it should be given a narrowrather than liberal interpretation. Inthe case ofEdwards v. Attorney General, the very casethatcoined the term “living tree”, the Privy Council explicitly distinguished between theB.N.A. Act, which garnered a “large and liberal” interpretation,and the “strict construction” afforded to “a penal or taxing statute.”
True, the Supreme Court in R v. Butler took into consideration modern “community standards,” but that decision is easilydistinguishable. The Court inButlerwas interpreting the provisions in theCriminal Codedealing with obscenity, and specifically the phrase “undue exploitation.” This phrase, unlike bestial*ty, has no “long understood meaning in Canadian Criminal law” (D.R.W. B.C.C.A., para. 38). It is a concept that has meant different things at different times, appealing far more to conceptions of morality than to law, and is therefore inherently subjective. While the Court did not adopt this reasoning explicitly, it is plausible that Parliament intended for the term to reflect evolving standards, since the term “undue” invariably requires a fact specific inquiry that, like the term “reasonable,” cannot be divorced from modern standards and conceptions. Finally, the reliance on more modern community standards inButler benefited the accused, not the state. In the face of an ambiguous meaning, the Court rightly adopted the less intrusive option.
As should be evident, this issue is about far more than the meaning of bestial*ty.It is fundamentally about how we as Canadians are to be governed.If the courts are permitted to “read in” new offences into theCriminal Code (or read down existing offences) they will have usurped the legitimate role of Parliament. And unlike the Constitution, which contains a complex amendment process, Parliament can easily amend the Criminal Code tomorrow. There is therefore no justification in law or policy to grant the courts this wide discretion.
A “progressive” interpretation of theCriminal Code would also severely undermine certainty and predictability in the law. Every defendant must know the case that he or she has to meet and lawyers must be able to properly advise their clients regarding what is permissible and what is prohibited. Ignorance of the law is no defence, but that maxim can only hold true when the law is knowable. If the meaning of bestial*ty, or any other provision of theCriminal Code,is not fixed and is instead subject to “contemporary Canadian values” (as determined by the court), then the liberty of all Canadians will be subject to little more than judicial whim.
Conclusion
Hard cases do indeed have a tendency to make bad law. Therespondent, D.L.W., should have no one’s sympathy. He committed heinous acts that warrant serious punishment. But in the face of such depravity, it is all the more important that we do not lose sight of the rule of law. The respondent was charged and convicted with twelve offences aside from bestial*ty and he will be justly punished for thosecrimes. There is enough law on the books already to deal with his disturbing conduct; little is gained and much is lost by expanding the criminal law through judicial legislation.
The bestial*ty conviction would have added two years to his sentence, but these two years (and more) could have easily been added to his other twelve convictions (indeed, the trial judge reduced his sentence from 18 years to 16 years based on the principle of totality). There is certainly a good policy argument that individuals such as D.L.W. should spend more than 14 years in prison, but this could have been accomplished without the bestial*ty conviction.
To be sure, society’s conception of sex has changed a great deal since 1954, and even since 1985. So too has the concept of animal rights. Should Parliament feel that those changes warrant an amendment to the Criminal Code, it is at liberty to change the law.It may seem trite to say, but that is how a democracy works.
Until such time as theCriminal Codeis amended, the courts must continue to apply the Code’s existing provisions in a relatively narrow fashion, resolving ambiguities in favour of accused individuals. These are not simply principles of proper statutory interpretation; they are principles that govern a free and democratic society. We can only hope that the Supreme Court of Canada sees fit to agree.
