Charter Statement - Bill C-84: An Act to amend the Criminal Code (bestiality and animal fighting)
Tabled in the House of Commons, December 6, 2018
The Minister of Justice prepares a "Charter Statement" to help inform public and Parliamentary debate on a government bill. One of the Minister of Justice's most important responsibilities is to examine legislation for consistency with the Canadian Charter of Rights and Freedoms ["the Charter"]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for consistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.
A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.
A Charter Statement is intended to provide legal information to the public and Parliament on a bill's potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.
The Minister of Justice has examined Bill C-84, An Act to amend the Criminal Code (bestiality and animal fighting), for consistency with the Charter pursuant to her obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill.
What follows is a non-exhaustive discussion of the ways in which Bill C-84 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.
Definition of bestiality
Clause 1 would add a definition of "bestiality" in section 160 of the Criminal Code to include any contact, for a sexual purpose, between a person and an animal. This would respond to the decision of the Supreme Court of Canada in R. v. D.L.W. (2016) where the Court held that the bestiality offences in section 160 of the Criminal Code are limited to sexual acts with animals that involve penetration. The broadened definition would increase protections for children, as well as other vulnerable individuals who may be compelled to engage in or witness bestiality, and animals by ensuring that the criminal law captures all sexual acts with animals, and not just those that involve penetration. By virtue of the definition's sexual purpose focus, legitimate animal husbandry or veterinary practices would continue to be excluded from the scope of the offence. The existing penalties for the bestiality offences would remain unchanged. These penalties range from a minimum term of six months imprisonment on summary conviction to one year on indictment.
The penalty provisions have the potential to engage section 12 of the Charter, which guarantees the right not to be subjected to any cruel and unusual treatment or punishment. Section 12 prohibits grossly disproportionate punishments. The courts have found that in some circumstances requiring the imposition of a minimum penalty could lead to a grossly disproportionate punishment.
The following considerations support the consistency of the penalties at issue with the Charter. The existing penalties apply to serious sexual offences involving persons under the age of 16. In enacting these penalties, Parliament was focused on the sentencing principles of denunciation, and general and specific deterrence and the need to separate from society those who would seek to harm children through the commission of sexual offences. The offence of bestiality in the presence of, or inciting the commission of bestiality by, a person under the age of 16 years is a serious offence, carrying a high level of moral blameworthiness. Further, the penalties do not attach to a broad array of circumstances but rather apply to a narrow range of serious conduct carrying a high degree of blame. Given the seriousness of the conduct and the importance of deterrence, the penalties are not grossly disproportionate in the circumstances.
Clause 2 would expand the range of prohibited behaviour around animal fighting by expanding the offence of encouraging and aiding at the fighting of animals to add other prohibited activities such as "promotes, arranges, takes part in, receives money for" in regards to animal fighting.
Section 2(b) of the Charter provides broad protection for all forms of expression. The revised offence has the potential to engage freedom of expression to the extent that it prohibits communications by a person. However, expression taking the form of violence, directed towards violence, or being intimately connected to violence is not protected by the Charter. Statements promoting the fighting of animals are expression directed towards violence. Statements that may be caught by the offence do not promote the values underlying freedom of expression and are at best at the periphery of section 2(b)'s protection. A prohibition on such statements may be viewed as a proportional response to the objective of addressing the harm caused by animal fighting, including its connection with other activities such as illegal gambling and organized crime.
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