Research publications

Contents

Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.

• 1  Background
  
  • 1.1  Context
    
    • 1.1.1  Bestiality
    • 1.1.2  Animal Fighting
    • 1.1.3  Previous Bills and Amendments
• 2  Description and Analysis
  
  • 2.1  Bestiality (Clause 1)
  • 2.2  Animal Fighting
    
    • 2.2.1  Causing Unnecessary Suffering (Clause 2)
    • 2.2.2  Arenas for Animal Fighting (Clause 3)
    • 2.2.3  Sex Offender Information Registration
• Notes

1  Background

Bill C-84, An Act to amend the Criminal Code (bestiality and animal fighting),1 was introduced in the House of Commons by the then Minister of Justice and Attorney General of Canada, the Honourable Jody Wilson-Raybould, on 18 October 2018. It received second reading and was referred to the Standing Committee on Justice and Human Rights on 29 October 2018. The committee made amendments to the bill that were adopted by the House of Commons on 8 May 2019. The Standing Senate Committee on Social Affairs, Science and Technology studied and reported the bill to the Senate without amendment on 13 June 2019. The Senate passed the bill on 18 June 2019 and it received Royal Assent on 21 June 2019.

Bill C-84 amends the Criminal Code2 (Code) to broaden the scope of three criminal offences in order to prohibit certain activities related to bestiality and animal fighting.

1.1  Context

1.1.1  Bestiality

Bill C-84 amends the Code to define “bestiality” and adds new animal prohibition and restitution court order provisions.

Previously, although section 160 of the Code criminalized bestiality, it did not include any definition of the term. The Supreme Court of Canada considered which acts are prohibited by this offence in its R. v. D.L.W. decision in 2016.3 The Court determined that the term “bestiality” has a “well-established legal meaning and refers to sexual intercourse between a human and an animal” and stated that sexual penetration “has always been understood to be an essential element” of the term. The court noted that it was not its role to expand upon this accepted meaning, but rather that it would be up to Parliament to “broaden the scope of liability” for the offence by introducing an express provision in the Code.4

The D.L.W. case involved a stepfather who was convicted of numerous sexual offences for acts he committed against his two stepdaughters. He was, however, acquitted of bestiality charges that had been laid because although he had forced his stepdaughters to perform acts with the family dog “for a sexual purpose,” these did not involve penetration.5 According to the Department of Justice, the amendment to section 160 contained in Bill C-84 is designed to “address gaps” in the law by criminalizing any contact for a sexual purpose between a person and an animal.6

Statistics Canada provides crime statistics for bestiality, dividing the offence into two categories:

• committing or compelling a person to commit bestiality; and
• committing bestiality in the presence of a child or inciting a child to commit bestiality.

The latter offence was only added to the database of incident-based crime statistics in 2015, so Statistics Canada urges caution when considering this data.7 Among the statistics provided are the “actual incidents” reported by police and the total number of charges against accused persons. These statistics indicate that between 2014 and 2018, incidents of “bestiality, commit or compel person” range from 12 to 17 per year for those years, with the number of persons charged ranging from 0 to 9.8 Over the same period, single incidents of “Bestiality in presence of, or incites, a child” were reported in 2016, 2017 and 2018, with charges being laid against one youth in 2016 and one adult in 2018.9

In December 2018, the Canadian Centre for Child Protection Inc. published “Bestiality” as reflected in Canadian case law: Considerations for protecting children and animals after R v DLW.10 This report examined questions surrounding the definition, scope and prevalence of bestiality. It noted that there is in fact “little information about the issue of bestiality overall,” but underscored that most incidents would not be reported to police. After reviewing the relevant jurisprudence, data from Statistics Canada and its own research, the centre noted that there were more examples of non-penetrative than penetrative sexual activity involving animals, a fact that it says supports the need to expand the criminal definition of bestiality. The study also noted that coerced sexual acts involving animals often occur in conjunction with other very serious behaviour involving human victims.

1.1.2  Animal Fighting

Bill C-84 amends the Code to broaden the scope of prohibited activities pertaining to violence and cruelty toward animals and animal fighting. Animal fighting most often involves two animals that are set against each other in violent conflict for human entertainment. Spectators may wager which animal will defeat the other by killing it or seriously wounding it so that it cannot continue fighting.11

Statistics Canada does not collect data on animal cruelty offences.12 As noted by then minister Wilson-Raybould, “Given its clandestine nature, it is difficult to collect statistics on the prevalence of dog fighting in Canada.”13

There have been various reports of animal fighting across Canada in recent years, particularly involving dogs.14 The Ontario Society for the Prevention of Cruelty to Animals (Ontario SPCA) reports that dog fighting is undeniably taking place, and it has an awareness and advocacy campaign to address it.15 In 2015 and 2016, a partnership between the Ontario SPCA, the Ontario Provincial Police and the Chatham-Kent Police Service led to investigations that resulted in the seizure of 64 pit bull dogs and various items related to training dogs for fighting and holding dog fights.16

The Department of Justice has stated, “Animal fighting has often been linked to organized crime, including illegal gambling and the illicit trafficking of drugs and weapons.”17 Various advocacy groups and individuals have been calling for criminal law reform to address cruelty and violence toward animals, including animal fighting, for many years.18

Sections 444 to 447 of the Code criminalize various forms of cruelty and violence toward animals. These offences cover, among other things, wilfully causing pain and suffering, wilfully killing, harming and neglecting an animal, and animal fighting.19 They fall under Part XI of the Code, “Wilful and Forbidden Acts in Respect of Certain Property.” Some offences pertain to livestock or other animals that are kept for “a lawful purpose” and therefore have a “keeper” who exercises control over the animal.20 The fact that criminal provisions concerning animal cruelty are found in this part of the Code reflects the traditional legal view that domestic animals are to be treated as property.21

Section 445 includes a broad offence that makes it an offence to kill, maim, wound, poison or injure all animals (other than cattle and related livestock,22 which are addressed under section 444). Section 445.1 also includes a broad offence in subsection 445.1(1)(a) for anyone who causes unnecessary pain, suffering or injury to an animal or bird. Subsection 445.1(1)(b) specifically criminalizes aiding or assisting at the fighting or baiting of animals or birds. Section 447 makes it an offence for any person to build, make, maintain, keep or allow a “cockpit” on property the person owns or occupies. While the Code does not define this term, in a case that examined evidence to determine whether a cockpit had been maintained, an expert described one simply as “a place where cocks are fought.”23

Animal welfare laws at the provincial and territorial level can also address cruelty toward animals and animal fighting. Some provisions in these laws provide substantial standards of care for animals and administrative penalties for violating them, though they are not criminal laws.24

1.1.3  Previous Bills and Amendments

The animal cruelty offences in the Code have changed little since the law was first passed in 1892.25 Many bills have been introduced over the years to either amend specific sections or propose broad reforms, such as by creating a new part of the Code that would pertain to crimes against animals. In the late 1990s, the Government of Canada undertook consultations and published a consultation paper entitled Crimes Against Animals.26 The paper considered revisions to the Code to make it easier to prosecute violence and cruelty toward animals and also to update the penalties to reflect the seriousness of the crimes. Following the release of this report, in December 1999, then Justice Minister Anne McLellan introduced Bill C-17, An Act to amend the Criminal Code (cruelty to animals, disarming a peace officer and other amendments) and the Firearms Act (technical amendments), in the House of Commons.27 This bill would have moved crimes involving animals from the property section of the Code into a new Part V, which would have had the title “Sexual Offences, Public Morals, Disorderly Conduct and Cruelty to Animals.” Animals would no longer have been regarded simply as property and their capacity to feel pain would have been recognized. The bill died on the Order Paper on the dissolution of Parliament, as did other subsequent government bills to reform these offences.28

Many other private members’ bills and Senate private bills have also been introduced to make changes to the animal cruelty offences.29 One of these was passed by Parliament: Bill S-203, An Act to amend the Criminal Code (cruelty to animals), was introduced by Senator John Bryden in 2007 and received Royal Assent in April 2008. It increased the penalties associated with the offences in sections 444 to 447 of the Code.30

The most recent attempts in the 42^nd Parliament to legislate reform of animal cruelty offences have included two private members’ bills. Bill C-246, An Act to amend the Criminal Code, the Fisheries Act, the Textile Labelling Act, the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act and the Canada Consumer Product Safety Act (animal protection), was introduced by Member of Parliament Nathaniel Erskine-Smith on 26 February 2016, but it was defeated at second reading.31 It proposed to consolidate and modernize various offences against animals by removing sections 444 to 447.1 and creating a new “Part V.1, Offences against animals.” On 13 December 2017, Member of Parliament Michelle Rempel tabled Bill C-388, An Act to amend the Criminal Code (bestiality), which would make essentially the same amendment to section 160 as Bill C-84.32

2  Description and Analysis

2.1  Bestiality (Clause 1)

Section 160 of the Code criminalizes engaging in bestiality, compelling another person to commit bestiality, and committing bestiality in the presence of a person who is under the age of 16 years. The first two offences are punishable on summary conviction by imprisonment for up to two years less a day or a $5,000 fine or both33 or on indictment by up to 10 years’ imprisonment (sections 160(1) and 160(2)).

The third offence (section 160(3)) is punishable on summary conviction by imprisonment for a minimum of six months and a maximum of two years less a day or, on indictment, to a minimum of one year’s and a maximum of 14 years’ imprisonment.

Clause 1 of Bill C-84 adds a definition of bestiality to the Code by providing in new section 160(7) that it means “any contact, for a sexual purpose, with an animal.” This broader definition than the one retained by the Supreme Court, as described in section 1.1.1 of this Legislative Summary, is intended to capture sexual acts involving animals and people, whether they involve penetration or not.

Clause 1 also adds new section 160(4)(a), which provides that a court can issue an order prohibiting an accused person from owning, having the custody or control of or residing with an animal for an appropriate period of time and for a minimum of five years in the case of a second offence. New section 160(5) adds that the contravention of such an order constitutes an offence punishable on summary conviction, rendering a person liable to a fine of not more than $5,000, a term of imprisonment not exceeding two years less a day or both.

New section 160(4)(b) allows the court to make an order that the accused pay the appropriate party for ascertainable costs incurred in caring for an animal implicated in the commission of the offence. These orders are subject to provisions concerning the enforcement of restitution orders in sections 740 to 741.2 of the Code (new section 160(6)).

2.2  Animal Fighting

2.2.1  Causing Unnecessary Suffering (Clause 2)

Section 445.1 of the Code lists various offences under the heading “Causing unnecessary suffering.” These offences prohibit causing pain or suffering to an animal or bird, poisoning a domestic animal or bird, and other related activities. Section 445.1(1)(b) specifically makes it an offence for anyone to encourage, aid or assist at the fighting or baiting of animals or birds.

Clause 2 of Bill C-84 replaces the current section 445.1(1)(b) to add that the prohibited conduct also includes promoting, arranging, receiving money for, or taking part in the baiting or fighting of animals or birds, as well as in the training, transporting or breeding of animals or birds for the purposes of baiting or fighting.

The rest of the provisions of section 445.1, which pertain to evidentiary matters and the associated punishment, are unchanged. Punishment on summary conviction is a fine of up to $10,000 or imprisonment for up to two years less a day or both. Punishment on indictment is up to five years’ imprisonment.

2.2.2  Arenas for Animal Fighting (Clause 3)

Section 447 of the Code makes it an offence for any persons to build, make, maintain, keep or allow a “cockpit” on property that they own or occupy.

Clause 3 of Bill C-84 replaces the term “cockpit” in section 447(1) of the Code with “an arena for animal fighting.” This provision therefore serves to capture other types of animal fighting, such as dog fighting. As noted by the Department of Justice, the proposed amendments in the bill “will expand the existing provisions in order to protect all animals and capture all activities related to animal fighting.”34

Section 447(2) of the Code is not amended by the bill, though its application is expanded as it provides the punishment for the offence under section 447(1). Persons convicted under section 447(1) may be sentenced on summary conviction to a fine of up to $10,000 or imprisonment for up to two years less a day or both, and on indictment to up to five years’ imprisonment.

Section 447(3) of the Code allows a peace officer to specifically seize “cocks in a cockpit or on premises where a cockpit is located” and to seek an order from a justice of the peace or provincial court judge that the cocks be destroyed. This provision is repealed.

2.2.3  Sex Offender Information Registration

Clause 4 adds section 160(1) (the bestiality offence) to the list of designated offences in section 490.011 of the Code for which offenders may be added to the National Sex Offender Registry.35 Created in accordance with the Sex Offender Information Registration Act,36 this database is accessible to Canadian police agencies and imposes mandatory requirements and reporting obligations on registered sex offenders.

Notes

*  Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force. [ Return to text ]