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Steve Weatherbe

Opinion

Canada’s Supreme Court actually got that bestiality case right

Steve Weatherbe

June 16, 2016 (LifeSiteNews) – Many Canadians of conservative bent would rejoice at the restraint shown by the Supreme Court of Canada in a recent criminal matter, if the decision hadn’t appeared to mean, as the British Independent’s headline put it, that “Most bestiality is legal, declares Canada's Supreme Court.”

Nobody should put any trust in a British news story about Canada. For decades, UK journalism held to one trope about Canada—how boring it was. But now there is a new theme that plays off the old one: Remember how boring Canadians used to be, well now they’ve gone and legalized most forms of bestiality!

The case involved a British Columbia man serving 16 years on 13 convictions for sex crimes committed against his own daughters. However, thanks to the remarkably restrained approach of the Supreme Court, his conviction on the most serious charge, bestiality, was overturned.

It’s remarkable because the Supreme Court has been acting anything but restrained lately. In three cases they overthrew their own rulings. In Bedford it was prostitution; in Carter, euthanasia; and in Saskatchewan Federal of Labour, striking. In the latter case, they used a very liberal understanding of the Charter of Rights and Freedoms while demonstrating not only a lack of respect for the intention of the framers of the Constitution, but, as Lauren Heuser pointed out this week in the National Post, a disregard for the crucial principle of stare decisis, which says lower courts must follow higher court decisions.

In the bestiality case, on the other hand, these puffed up judicial ideologues decided that the law should not be expanded at all. The accused, D.L.W., had both sexually assaulted his daughters and tried to get his dog to do so while he videotaped the act. When his dog balked at penetrating his daughters, the father induced the animal to do something less, but it was still enough to generate a lower court conviction for bestiality. The judge ruled that the offense of bestiality “means touching between a person and an animal for a person's sexual purpose.”

But that’s not so, according to all but one of the Supreme Court justices, arguing on narrow, technical grounds. “Bestiality,” when it first appeared in the Criminal Code in 1955 was merely a new name for the old crime of “buggery with mankind or with any animal,” and buggery means just one thing: unnatural penetration.

The job of the judiciary, said the majority, was not to expand the meaning of the law to fit what people might want. That was Parliament’s job.

There was one dissenter, arch-feminist Madame Justice Rosalie Abella, who managed to conjure up the vision of a nearly infinite number of possible animal-human sexual interactions, all which should be prevented for the sake of the animals, it seems, not the humans.

Interpreting bestiality as the lower court judge did, to mean all animal-human sexual acts, did not constitute a broadening of the crime’s meaning, she stated. “I see it more as a reflection of Parliament’s common sense assumption [in 1955] that since penetration is physically impossible with most animals and for half the population, requiring it [penetration] as an element of the offence eliminates from censure most sexually exploitative conduct with animals.”

But if Abella meant what she wrote, she holds a very different understanding of bestiality from that of the other judges, which is that it as much criminalized penetration of women by animals as animals by men.

Abella rejects at the outset of her opinion, with some evident satisfaction, the original basis for criminalizing bestiality, which was, she claimed, “ecclesiastical, and emerged in full moral force from the Church’s hegemonic jurisdiction over sexual offences and its abhorrence for non-procreative sexual acts, which were condemned as being ‘unnatural.’”

The basis for this approach, which Abella condemns as  “censorious, ” is, of course, natural law. What is right and what is wrong for humans is written into human nature by our Designer.

Not so, explains Abella: the key to right and wrong is consent. If both parties agree, then it shouldn’t be illegal. But since neither animals nor children can consent, what D.L.W. did must be wrong. And because the term “bestiality” was introduced into the Criminal Code at roughly the same time as a new animal protection law which did not distinguish between animals that could or could not be penetrated, Abella is sure the same latitude was meant to apply for bestiality.

“It is hard to attribute to Parliament,” writes Abella, “the inconsistent purpose that animal cruelty protection in the Code would now cover all birds and animals, but the sexual conduct with animals provision, bestiality, would be limited to those animals whose anatomy permitted penetration.”

The other judges, however, followed the bedrock principle that to put a new meaning on English Common Law concepts requires an explicit law.

If only Canada’s judiciary could show the same for some other principles once presumed to be fundamental to the rule of law in this country. The first is that the Constitution means what is says and not what judges think it should say. Second: it’s the job of legislators to change the Constitution and the law. And third, the decisions of the courts on constitutional challenges should stand; in fact, they should become part of the Constitution, sturdy foundations for Canadians to rely on. But in Bedford, Carter and Saskatchewan Federation of Labour, the Supreme Court has given an alarmingly broad meaning to judicial activism.

In all three cases, lower courts ignored Supreme Court decisions and the Supreme Court ultimately ratified their reversals; in two of the three this meant throwing out existing laws. They justify reversing decisions whenever “social, political or economic assumptions underlying the previous decision are no longer valid.”

In effect, it is the same argument the Supreme Court uses when it throws out laws based on an expansionist and novel reading of the Constitution. And it is, indeed, a good argument for changing laws and changing the Constitution, but it is not a job for judges. Who are they to decide what is socially, politically or economically valid?

Of course, it is entirely possible the Supremes are better equipped mentally to make such decisions than are our politicians. So might be an old man living in a hermitage atop a British Columbia mountain. But in our system of government, only our legislators have the rightful power to decide when those assumptions are invalid. Judges are supposed to do what they did in the bestiality case. They are supposed to decide the law.

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