Bestiality (Offence)
| This page was last substantively updated or reviewed January 2020. (Rev. # 94608) |
| 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 (*) |
| Summary Dispositions | |
| Avail. Disp. |
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| Minimum | 6 months incarceration (* varies) |
| Maximum | 2 years less a day or 2 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) |
Preliminary Inquiry |
|---|---|---|---|---|
| s. 160(1) [bestiality] s. 160(2) [compelling bestiality] s. 160(3) [bestiality in presence of child] |
Hybrid Offence(s) |  |
(* only if Crown proceeds by Indictment) |
 (under 14 years max)
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Offences under s. 160(1) [bestiality], (2) [compelling bestiality] and (3) [bestiality in presence of child] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.
- Release
| Offence(s) | Appearance Notice by Peace Officer s. 497 |
Summons by Judge or Justice s. 508(1), 512(1), or 788 |
Release by Peace Officer on Undertaking s. 498, 499, and 501 |
Release By a Judge or Justice on a Release Order s. 515 to 519 |
Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act |
|---|---|---|---|---|---|
| s. 160(1) [bestiality], (2) [compelling bestiality] and (3) [bestiality in presence of child] | |
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When charged under s. 160(1) [bestiality], (2) [compelling bestiality] and (3) [bestiality in presence of child], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
- Renversement du fardeau de la preuve
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 weapon, being 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)).
And, regardless of Crown election, if the offence alleged was one:
- where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
- where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
- where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
- Fingerprints and Photos
A peace officer who charges a person under s. 160 [bestiality] 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 [bestiality] 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 | Serious Criminality Offence s. 36 IRPA |
|---|---|---|---|---|---|
| s. 160 [bestiality] | |
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(by indictment only)
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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) [bestiality], 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.
[omitted (4) and (5)]
- Application
(6) Sections 740 to 741.2 [provisions relating to restitution] apply, with any modifications that the circumstances require, to orders made under paragraph (4)(b) [order of payment for animal care fees].
- Definition of bestiality
(7) In this section, "bestiality" means any contact, for a sexual purpose, with an animal.
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; 2019, c. 17, s. 1.
[annotation(s) added]
Draft Form of Charges
| Pre-ambles | ||
|---|---|---|
| "THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR | ||
| "THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR | ||
| "AND FURTHER at the same time and place aforesaid, he [or she]..." | ||
| Code Section | Subject of Offence | Draft Wording |
| 160(1) | bestiality | "..., did carry out intercourse with a beast or bird and thereby commit bestiality contrary to section 160(1) of the Criminal Code." |
| 160(2) | compulsion to commit bestiality | "..., did compel [name1] to commit bestiality with [details on animal], to wit: [conduct], contrary to section 160(2) of the Criminal Code." |
| 160(3) | "..., did commit bestiality in the presence of [name1], a person under 16 years, to wit: [conduct], contrary to section 160(3) of the Criminal Code." | |
| 160(3) | "..., did incite [name1], a person under the age of 16 years, to commit bestiality, to wit: [conduct], contrary to section 160(3) of the Criminal Code." |
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) [bestiality], 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.
Proof of the Offence
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Proving bestiality under s. 160(1) should include:
Proving compelling bestiality under s. 160(2) should include:
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Proving bestiality in presence of a child under s. 160(3) should include:
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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]
- ↑
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 CanLII 45200 (QC CQ), [2002] JQ No 8055, per Lortie J
- ↑
R v LMR, 2010 ABCA 286 (CanLII), 490 AR 196, 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), 102 WCB (2d) 621, per Manderscheid J, at paras 181, 182
- ↑ R v DLW, 2016 SCC 22 (CanLII), [2016] 1 SCR 402, per Cromwell J
- ↑
DLW, ibid. (BCSC), at para 305 appealed to DLW (SCC), ibid.
Evidence
- Modification of Rules of Evidence
For offences under this section (s. 160):
- corroboration is not required for conviction and the judge cannot instruct on need for corroboration: see Corroboration under s. 274.
- common law rules relating to "recent complaint" do not apply: see Credibility under s. 275. (s. 160(2) and (3) only)
- 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.
- Holdback of Disclosure
For offences under this section (s. 160), s. 278.2 prevents the Crown from disclosing 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. 278.3 to 278.91: see Production of Records for Sexual Offences. Should the privacy-holder agree to waive their privacy rights, the protected materials may be disclosed.
Participation of Third Parties
- Complainant Privacy Rights in Sexual Offences
A complainant has a right to be notified of any party seeking to admit any evidence of sexual activity other than the activity making up the alleged offence.
- 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
| Offence(s) | Victim Notice of Agreement s. 606(4.1) [SPIO] |
Victim Queried for Interest in Agreement s. 606(4.2) [5+ years] |
Victim Notice for Restitution s. 737.1 |
Victim Notice of Impact Statement s. 722(2) |
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| s. 160 [bestiality] |
For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 160 [bestiality] ), 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
- 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 | 2 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 incarceration |
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 2 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 incarceration 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 incarceration | Same |
| s. 160(3) [bestiality in presence of child] | indictable election | 1 year incarceration | Same |
Offences under s. 160(1) or (2) have no mandatory minimum penalties.
Offences under s. 160(3) [bestiality in presence of child] have a mandatory minimum penalty of 1 year incarceration when prosecuted by indictment and 6 months incarceration 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 |
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| s. 160(1) [bestiality] and (2) [compelling bestiality] | any | |
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| s. 160(3) [bestiality in presence of child] | any | |
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For offences under s. 160(1) [bestiality] and (2) [compelling bestiality] , 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) [bestiality in presence of child] 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
- Offence-specific Orders
160
[omitted (1), (2) and (3)]
- Order of prohibition or restitution
(4) The court may, in addition to any other sentence that it may impose under any of subsections (1) to (3) [bestiality – various forms],
- (a) make an order prohibiting the accused from owning, having the custody or control of or residing in the same premises as an animal during any period that the court considers appropriate but, in the case of a second or subsequent offence, for a minimum of five years; and
- (b) on application of the Attorney General or on its own motion, order that the accused pay to a person or an organization that has taken care of an animal as a result of the commission of the offence the reasonable costs that the person or organization incurred in respect of the animal, if the costs are readily ascertainable.
- Breach of order
(5) Every person who contravenes an order made under paragraph (4)(a) [animal prohibition order] is guilty of an offence punishable on summary conviction.
[omitted (6) and (7)]
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; 2019, c. 17, s. 1.
[annotation(s) added]
| Order | Conviction | Description |
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| DNA Orders | s. 160(2) or (3) |
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| SOIRA Orders | s. 160(2) or (3) |
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) |
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| Delayed Parole Order | s. 160 |
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- 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 His Majesty the King on application of the Crown. NB: does not apply to summary offences. |
| 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. NB: does not apply to summary offences. |
Record Suspensions and Pardons
Convictions under s. 160(1) [bestiality] or 160(2) [compelling bestiality] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".
Convictions under s. 160(3) [bestiality in presence of child] are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act. An exception can be 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 between victim and offender is less than 5 years.
History
See Also
- References