Difference between revisions of "Bestiality (Offence)"

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==Interpretation of the Offence==
 
==Interpretation of the Offence==
 
It has not been well established whether the act of bestiality requires that the sexual act be penetrative in nature.
 
It has not been well established whether the act of bestiality requires that the sexual act be penetrative in nature.
The limited cases that have considered it have stated that there must be penetrative sex, either vaginal or anal with an animal. It does not include sexual acts involving genital touching or oral sex.<ref>''R v Ruvinsky'' [1998] OJ No 3621 {{NOCANLII}} ("[i]n my respectful opinion, "bestiality" is anal or vaginal intercourse with an animal, by a man or a woman. ... I do not believe that it is my role to expand the definition of this offence to include genital touching or licking. That responsibility lies with Parliament, who in their wisdom, have to date not defined the offence.")<br>
+
The limited cases that have considered it have stated that there must be penetrative sex, either vaginal or anal with an animal. It does not include sexual acts involving genital touching or oral sex.<ref>
 +
''R v Ruvinsky'' [1998] OJ No 3621 {{NOCANLII}} ("[i]n my respectful opinion, "bestiality" is anal or vaginal intercourse with an animal, by a man or a woman. ... I do not believe that it is my role to expand the definition of this offence to include genital touching or licking. That responsibility lies with Parliament, who in their wisdom, have to date not defined the offence.")<br>
 
See also ''R v MC'' [2002] JQ No 8055, [http://canlii.ca/t/1c0kf 2002 CanLII 45200] (QCCQ){{perQCCQ|Lortie J}}<br>
 
See also ''R v MC'' [2002] JQ No 8055, [http://canlii.ca/t/1c0kf 2002 CanLII 45200] (QCCQ){{perQCCQ|Lortie J}}<br>
</ref> However, courts have accepted guilty pleas for bestiality for acts that amounted to oral stimulation.<ref>
+
</ref>  
 +
However, courts have accepted guilty pleas for bestiality for acts that amounted to oral stimulation.<ref>
 
''R v LMR'', [http://canlii.ca/t/2ct05 2010 ABCA 286] (CanLII){{TheCourtABCA}} - child had her vagina licked by a dog<br>
 
''R v LMR'', [http://canlii.ca/t/2ct05 2010 ABCA 286] (CanLII){{TheCourtABCA}} - child had her vagina licked by a dog<br>
 
''R v Black'', [http://canlii.ca/t/1rrf3 2007 SKPC 46] (CanLII), 296 Sask.R. 289{{perSKPC| Kovatch J}} - accused recorded a woman having her genitals licked by a dog and stimulated the dog<br>
 
''R v Black'', [http://canlii.ca/t/1rrf3 2007 SKPC 46] (CanLII), 296 Sask.R. 289{{perSKPC| Kovatch J}} - accused recorded a woman having her genitals licked by a dog and stimulated the dog<br>
 
''R v JJBB'', [http://canlii.ca/t/1vpqz 2007 BCPC 426] (CanLII){{perBCPC|Frame J}} - offender recorded two dogs licking child's genitals<br>
 
''R v JJBB'', [http://canlii.ca/t/1vpqz 2007 BCPC 426] (CanLII){{perBCPC|Frame J}} - offender recorded two dogs licking child's genitals<br>
''R v KDH'', [http://canlii.ca/t/fs78w 2012 ABQB 471] (CanLII){{perABQB| Manderscheid J}}{{ats|181, 182}}<br>
+
''R v KDH'', [http://canlii.ca/t/fs78w 2012 ABQB 471] (CanLII){{perABQB| Manderscheid J}}{{atsL|181, 182|http://canlii.ca/t/fs78w#par181}}<br>
 
</ref> More recent consideration has concluded that the offence only concerns intercourse which requires penetration.<ref>
 
</ref> More recent consideration has concluded that the offence only concerns intercourse which requires penetration.<ref>
 
''R v DLW'', [http://canlii.ca/t/gs0p6 2016 SCC 22] (CanLII){{perSCC|Cromwell J}}
 
''R v DLW'', [http://canlii.ca/t/gs0p6 2016 SCC 22] (CanLII){{perSCC|Cromwell J}}
Line 108: Line 110:
  
 
There is no requirement that the sexual act occur between an animal and human of the opposite sex.<ref>  
 
There is no requirement that the sexual act occur between an animal and human of the opposite sex.<ref>  
{{ibid1|DLW}} (BCSC){{at|305}} appealed to DLw (SCC){{ibid}}<br>
+
{{ibid1|DLW}} (BCSC){{atL|305|http://canlii.ca/t/gs0p6}} appealed to DLW (SCC){{ibid}}<br>
 
</ref>
 
</ref>
  

Revision as of 01:51, 13 August 2019


Bestiality
s. 160(1), (2) and (3) of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))*
Fine (734)*
Fine + Probation (731(1)(b))*
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum 6 months incarceration (* varies)
Maximum 2 years less a day or two years less a day jail and/or a $5,000 fine (from Sept 19, 2019) incarceration
Indictable Dispositions
Avail. Disp. same as summary
Minimum 1 year incarceration (* varies)
Maximum 10 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to bestiality are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 160(1) [bestiality]
s. 160(2) [compelling bestiality]
s. 160(3) [bestiality in presence of child]
Hybrid Offence(s) Yes Yes, if Crown proceeds by Indictment

Offences under s. 160(1), (2) and (3) are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Release
Offence(s) Attendance Notice
Without Arrest

s. 496
Summons
Without Arrest
s. 497
Release By
Arresting Officer
On Attendance Notice
s. 497
Release By
Officer-in-Charge
On a Promise to Appear
Undertaking or Recognizance
s. 498
Release By
a Judge or Justice
on a PTA, Undertaking or Recog.

s. 515
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 160(1), (2) and (3) OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 160(1), (2) and (3), the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he can be released by the arresting officer under s. 497 on an attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Fingeprints and Photos

A peace officer who charges a person under s. 160 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Section s. 160 offences permit a judge to order a discretionary publication ban for sexual offences under s. 486.4 that protects "information that could identify the victim or a witness". Where the witness is under the age of 18 or if in relation to a victim, the order is mandatory under s. 486.4(2).

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 160 [bestiality] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Bestiality

160. (1) Every person who commits bestiality is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.

Compelling the commission of bestiality

(2) Every person who compels another to commit bestiality is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.

Bestiality in presence of or by child

(3) Despite subsection (1), every person who commits bestiality in the presence of a person under the age of 16 years, or who incites a person under the age of 16 years to commit bestiality,

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

R.S., 1985, c. C-46, s. 160; R.S., 1985, c. 19 (3rd Supp.), s. 3; 2008, c. 6, s. 54; 2012, c. 1, s. 15; 2015, c. 23, s. 5.


CCC

Draft Form of Charges

Proof of the Offence

Proving bestiality under s. 160(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit performs vaginal or anal intercourse with an animal

Proving compelling bestiality under s. 160(2) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "compels another to" perform vaginal or anal intercourse with an animal

Proving bestiality in presence of a child under s. 160(3) should include:

  1. the culprit commits an offence under s. 160(1) and it was in the presence of person under 16 years; or
  2. the culprit commits an offence under s. 160(2) where the other person was under the age of 16 years.

Interpretation of the Offence

It has not been well established whether the act of bestiality requires that the sexual act be penetrative in nature. The limited cases that have considered it have stated that there must be penetrative sex, either vaginal or anal with an animal. It does not include sexual acts involving genital touching or oral sex.[1] However, courts have accepted guilty pleas for bestiality for acts that amounted to oral stimulation.[2] More recent consideration has concluded that the offence only concerns intercourse which requires penetration.[3]

There is no requirement that the sexual act occur between an animal and human of the opposite sex.[4]

  1. R v Ruvinsky [1998] OJ No 3621 (*no CanLII links) ("[i]n my respectful opinion, "bestiality" is anal or vaginal intercourse with an animal, by a man or a woman. ... I do not believe that it is my role to expand the definition of this offence to include genital touching or licking. That responsibility lies with Parliament, who in their wisdom, have to date not defined the offence.")
    See also R v MC [2002] JQ No 8055, 2002 CanLII 45200 (QCCQ), per Lortie J
  2. R v LMR, 2010 ABCA 286 (CanLII), per curiam - child had her vagina licked by a dog
    R v Black, 2007 SKPC 46 (CanLII), 296 Sask.R. 289, per Kovatch J - accused recorded a woman having her genitals licked by a dog and stimulated the dog
    R v JJBB, 2007 BCPC 426 (CanLII), per Frame J - offender recorded two dogs licking child's genitals
    R v KDH, 2012 ABQB 471 (CanLII), per Manderscheid J, at 182#parhttp://canlii.ca/t/fs78w#par181 paras http://canlii.ca/t/fs78w#par181{{{3}}}
  3. R v DLW, 2016 SCC 22 (CanLII), per Cromwell J
  4. DLW, ibid. (BCSC), at para http://canlii.ca/t/gs0p6 appealed to DLW (SCC), ibid.

Evidence

Modification of Rules of Evidence

For offences under this section (s. 160):

Limitations on Admissibility of Evidence

For offences under this section (s. 160(2) and (3)):

  • prior sexual history of the complainant "is not admissible to support an inference that...by reason of the sexual nature of that activity, the complainant...is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or... is less worthy of belief.": see Evidence of complainant’s sexual activity under s. 276.
  • any "evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.": See reputation evidence under s. 277.
Restrictions on Disclosure

For offences under this section (s. 160), the Crown cannot disclose any records attracting a "reasonable expectation of privacy" that relate "to a complainant or a witness" unless applied for through the process described in s. 278.2 to 278.91: see s. 276.

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 160), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For general principles on sentence for sexual offences, see Sexual Offences
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 160(1) [bestiality]
s. 160(2) [compelling bestiality]
Summary Election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 160(3) [bestiality in presence of child] Summary Election 2 years less a day custody
s. 160(1) [bestiality]
s. 160(2) [compelling bestiality]
s. 160(3) [bestiality in presence of child]
Indictable Election 10 years custody

Offences under s. 160(1), (2), and (3) are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019) for s. 160(1) or (2) and 2 years less a day for s. 160(3).

Minimum Penalties
Offence(s) Crown
Election
Minimum Penalty
First Offence
Minimum Penalty
Subsequent Offence
s. 160(3) [bestiality in presence of child] Summary Election 6 months custody Same
s. 160(3) [bestiality in presence of child] Indictable Election 1 year custody Same

Offences under s. 160(1) or (2) have no mandatory minimum penalties.

Offences under s. 160(3) have a mandatory minimum penalty of 1 year incarceration when prosecuted by indictment and 6 months jail when prosecuted by summary conviction.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 160(1) and (2) any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 160(3) any X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

For offences under s. 160(1) and (2), all dispositions are available. The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Offences under s. 160(3) have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

Consecutive Sentences

Under s. 718.3(7), where the judge sentences an accused at the same time for "more than one sexual offence committed against a child", a sentence must be consecutive where:

  • one of the sexual offences against that child is an offence relating to child pornography under s. 163.1. (see s. 718.3(7)(a)); or
  • each of the sexual offences against a child, other than a child pornography offence, related to a different child. (see s. 718.3(7)(a))

[note: this only applies for offences occurring after enactment of Tougher Penalties for Child Predators Act on July 16, 2015]

Principles

Young Victim

Section 718.01 requires sentencing judges to "give primary consideration to the objectives of denunciation and deterrence" when conduct "involved the abuse of a person under the age of eighteen years". Where the evidence shows that the offender, "in committing the offence, abused a person under the age of eighteen years, shall be deemed to be an aggravating circumstances" under s. 718.2(a)(ii.1). Where the offender is in a "position of trust or authority" in relation to the victim, it will also be aggravating under s. 718.2(a)(iii).

Ranges

see also: Bestiality (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 160(2) or (3)
SOIRA Orders s. 160(2) or (3)
  • On conviction under s. 160(2) or (3), as listed under s. 490.011(a), a SOIRA Order is mandatory as "designated offence" under s. 490.011(1)(a) regardless of Crown election
      • If there is a concurrent or prior conviction for a designated offence, the duration is life (s. 490.012(3))
      • Otherwise, the duration is 10 years where the offence has been "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years" (s. 490.013(2)(a))) or 20 years where the offence has a "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b)).
      • There is an option for early termination under s. 490.015 available after 5 years (if 10 year order), 10 years (if 20 year order), or 20 year (if life order).

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

Section 161 Orders s. 160(2) or (3)
  • If convicted under s. 160(2) or (3), the judge may make discretionary 161 Order.
Delayed Parole Order s. 160
  • Periods of imprisonment of 2 years or more for convictions under s. 160 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 160(3) [bestiality in the presence of a person under 16 or inciting a person under 16 to commit bestiality] are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act. Exception is made under s. 4(3) for those offences where there was no relationship of “trust”, “authority” or “dependency”; no violence, threats or coercion; and age difference is less than 5 years.

History

See also: List of Criminal Code Amendments

See Also

References