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If the government could get unanimous consent like they do when they pass pay increases for MPs, the law could be changed in 15 minutes.

Bestiality decision the fault of Parliament, not judges



On Thursday, the Supreme Court of Canada handed down a ruling that held any sexual activity between a person and an animal that does not involve penetration does not fall under the definition of bestiality and is therefore not a crime. There was a lot of criticism of the decision, mainly by those on the right who decried the decision of “liberal judges” who were taking on the role of legislators in further weakening the moral fabric of our society. The appeal was heard with seven judges and the ruling was 6-1. Contrary to the notion the decision was the fault of the court, the six judges in the majority were just doing what judges are supposed to do. It was the dissenting justice who would have broadened the definition of bestiality to include sexual activity that does not involve penetration. The dissent was a classic case of judicial activism. In 2013, a man in British Columbia was convicted of several counts of sexual assault involving his two stepdaughters. His name is subject to a publication ban to protect his stepdaughters and he can only be referred to as D.L.W. The sexual assaults took place over a 10-year-period. In addition to the numerous sexual assaults, he was also convicted of one count of bestiality. He had smeared peanut butter on the vagina of one of the girls and had the family dog lick it off while he filmed it.
D.L.W. appealed the conviction for bestiality for which he was sentenced to two years consecutive to the sentences he received for the sexual assaults. By a 2-1 decision, the B.C. Court of Appeal allowed the appeal and quashed the conviction. Since there was a dissent in the appellate court, he had an appeal as of right to the Supreme Court of Canada. The final appeal was argued on Nov. 9, 2015, and in a decision that came down on June 9, 2016, the majority of the court ruled he had not committed the offence of bestiality. The offence of bestiality has existed in its current form in Canada since 1955. Since that time no government; Liberal, Progressive Conservative or Conservative, had ever though it necessary to define exactly what constitutes bestiality. Since the issue was raised by D.L.W. the court was required to define it. The majority of the justices did what they were supposed to do. As there was no statutory definition of bestiality, they went to the British common law definition. English common law is still the law in Canada unless it is specifically changed by Canadian law. Parliament could have provided a definition of bestiality but did not do so. The common law definition of bestiality is “sexual intercourse” between a person and an animal. Sexual intercourse is defined as necessitating penetration to some degree and therefore the act involving the girl with the dog and peanut butter did not constitute the crime of bestiality.

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The lone dissent on the court was Justice Rosalie Abella. While critics of the court often refer to the justices as “liberal,” Abella is the only current justice who was appointed by a Liberal government (Chrétien). Beverley McLachlin, the Chief Justice, was appointed by Mulroney and all the remaining justices were appointed by Stephen Harper. Abella would have found the facts of the case to constitute bestiality. She purported to decide not what Parliament intended but what they would have intended if they had thought about it. She inferred how Parliament meant to define bestiality by referring to 1988 amendments to the Criminal Code that created new offences such as invitation to sexual touching in order to better protect children from sex crimes. In other words, Abella took over the role of the legislators in concluding the crime bestiality does not have to consist of penetration because, in her view, that’s what Parliament would have wanted. Her decision is a clear case of judicial activism the right so abhors. If the stepdaughter had been a consenting adult, the incident involving the dog and the peanut butter would not have been a crime under the majority’s decision. But she wasn’t; she was a minor and as the majority pointed out, as a minor the act would have constituted other offences already enacted to protect minors from being sexually exploited. Canada’s criminal courts are overcrowded and have been for years. Unlike sexual assault and impaired driving, there are not hundreds of people appearing in these courts on bestiality charges. Prosecutions for bestiality are rare and it is likely no government paid any attention to how the crime is defined.

The majority judges acted properly in defining something that Parliament never bothered to define

The majority judges acted properly in defining something that Parliament never bothered to define. In doing that, they were doing what judges are supposed to do; interpret the law not write it. It was the dissenting judge who wanted to usurp the function of Parliament and decide what they should have done. The issue was left to Parliament by the majority as it should have been. If the government feels bestiality should include acts short of penetration all they have to do is amend the Criminal Code to include a definition of bestiality that differs from the common law definition. If the government could get unanimous consent like they do when they pass pay increases for MPs, the law could be changed in 15 minutes.


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Arthur Weinreb -- Bio and Archives

Arthur Weinreb is an author, columnist and Associate Editor of Canada Free Press. Arthur’s latest book, Ford Nation: Why hundreds of thousands of Torontonians supported their conservative crack-smoking mayor is available at Amazon. Racism and the Death of Trayvon Martin is also available at Smashwords. His work has appeared on Newsmax.com,  Drudge Report, Foxnews.com.

Older articles (2007) by Arthur Weinreb


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