Evidence of meeting #127 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was fighting.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Alice Crook  Adjunct Professor, Health Management, Atlantic Veterinary College, Canadian Veterinary Medical Association
Barbara Cartwright  Chief Executive Officer, Humane Canada
Camille Labchuk  Executive Director, Animal Justice
Michael Cooper  St. Albert—Edmonton, CPC
Nathaniel Erskine-Smith  Beaches—East York, Lib.
Josie Candito  Animal Rights Activist, As an Individual
Peter Sankoff  Professor, Faculty of Law, University of Alberta, As an Individual
Michael Barrett  Leeds—Grenville—Thousand Islands and Rideau Lakes, CPC
Arif Virani  Parkdale—High Park, Lib.

10:25 a.m.

Animal Rights Activist, As an Individual

Josie Candito

First of all, we put them on notice, “Oh, if I do anything, this is something that Canadian law is telling me about.” It also puts other people out there, as you say, in that you've disclosed the information. Obviously, everybody can't look it up online, as there would be a privacy issue there, but the person would have to disclose this information. Say this person wants to take care of children or wants to work at something. The person would have to disclose this information. If they can hurt an animal, they can hurt a child, they can hurt a woman, they can hurt anybody; it's linked. I'm sure in the first hour there was a lot about the linking of this behaviour.

February 5th, 2019 / 10:25 a.m.

NDP

Murray Rankin NDP Victoria, BC

Thank you very much.

Professor Sankoff, first of all, thank you for your leadership in this area and thank you for intervening in the R. v. D.L.W. case. I think it's great.

You started by saying that we have in Canada, sadly, among the worst laws on animal cruelty in the western world. Thanks to the leadership of Mr. Erskine-Smith, we tried to make a dent in that in Bill C-246, but the Liberal majority voted it down. Maybe after the election we can get back to the basics on that.

Your analogy to polygamy was intriguing. You talked about how there's a possibility in an individual instance of no harm to the individuals involved, but society says the risks are high enough and the vulnerability of the children are great enough that really we should proceed notwithstanding the lack of any particular harm in a given case. You use that as an analogy to bestiality, which I thought was a very apt one.

I'd like you to talk a bit more about that from the perspective of harm to the animals, which you focused on, almost like animal rights, Professor Singer's work and all of that. It's as distinct from the difficulty, as you pointed out, of proving psychological harm and all the other things.

Talk a little bit about that and see if that vision can be implanted in the current law as proposed in the narrow compass of Bill C-84.

10:25 a.m.

Prof. Peter Sankoff

I think it does. I think the whole signal of this bill, and certainly the statements that have been made surrounding its enactment, go to the idea that....

It's twofold. I have focused on harm. It's interesting to note that in Switzerland and other jurisdictions that have dealt with bestiality, they've done it on the basis of animal dignity, essentially moving forward to suggest that animals are beings and we need to respect their physical and psychological integrity. As I referred to in my opening statements, we are sending the message that animals are vulnerable and that animals should not be exploited for sexual gratification. That was the message I sent to the Supreme Court when I spoke on D.L.W. Again, I should point out that I'm focusing more on the harm. I'll get back to that in just a second.

I would say that section 160, as the proposed amendment makes it, is also consistent with Parliament's treatment of sexual offences. That is an important statement to make as well. Parliament's treatment of sexual offences has been very clear: Those who cannot consent cannot be touched sexually. That is essentially what is stated in the Criminal Code with respect to, obviously, human beings. This just harmonizes that now. It's essentially saying that animals, which can never consent—they don't have the capacity to do so—are therefore being treated in the same way. I think it reflects our bigger statement about how we view sexuality, that sexuality must be between two people who are capable of consenting together.

I'll go back to the harm issue and what I was getting at with the analogy to polygamy, and there are other offences that do this as well. I've been engaged in debates with various people. There are people out there—I don't know if they're speaking in front of the committee—who are interested in bestiality. They seem to suggest that some animals are not harmed by this, and that so long as it is done in a way that's respectful of the animal and doesn't involve physical harm, we should not be concerned. That is the argument I've heard, that we should let people do what they wish; this is a libertarian society, and therefore, so long as the animal's not being harmed, we shouldn't be concerned.

My point back to that is twofold. First of all, it's very difficult to know whether they're correct. There are a lot of studies showing that the sexual touching and involvement of animals can cause psychological harm to the animal. We have studies that show that in the first place. The second point I wish to make, which was where I started with my opening remarks, is that it doesn't really matter whether it causes harm in an individual case. That's the point I was really getting at. Whether you can do this safely or in a way that isn't going to hurt the animals is completely beside the point.

We are entitled to do this because the risks of harm, when you are talking about animals as a group, as a class, are simply too large, especially when you're dealing with a category of being who cannot speak. You'll never be able to voice the alarm. It's the same thing when you're talking about very young children; still, at some point, those children will be able to voice the alarm and express what happened to them. Animals will never have that ability. As a result, the risks and the difficulties of actually investigating these things are simply too high. As a result, it makes sense to have a complete ban.

That's where I was going on this.

10:30 a.m.

NDP

Murray Rankin NDP Victoria, BC

Professor Sankoff, Ms. Candito talked about the frustration people find when probation is often the only penalty. I'm wondering whether as a criminal lawyer you think an increase in penalties would assist in getting the judge's attention, with therefore more likelihood of having convictions, as opposed to simply going through a prosecution and being frustrated by the fact that the offender only gets probation most of the time.

10:30 a.m.

Prof. Peter Sankoff

I'm less concerned about penalty than any other aspect of the code and the way it's dealt with. I think right now the opportunities for penalties, thanks to recent amendments to the code, are relatively high. It is true that on occasion the penalties are too low, but as a class, my study of this has not shown that penalty is the problem. The problem is getting the conviction in the first place. That would be my answer.

10:30 a.m.

NDP

Murray Rankin NDP Victoria, BC

Thanks very much.

10:30 a.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you.

I'll move to a combination of Mr. Fraser and Mr. McKinnon.

Mr. Fraser, we'll start with you.

10:30 a.m.

Liberal

Colin Fraser Liberal West Nova, NS

Thank you very much, Mr. Chair.

Thank you to the witnesses for being here and to Mr. McKinnon for giving me a little bit of his time, because I wasn't able to ask this question.

I guess in the last panel the issue came up of amending the Criminal Code to allow discretion to judges to impose orders or conditions on the ownership of animals for people convicted of these types of offences.

Generally this falls under provincial jurisdiction where provincial animal protection acts will allow the sentencing judge to impose conditions against ownership of animals for people convicted under provincial legislation. The Criminal Code contemplates banning ownership of weapons in certain appropriate cases for a public safety purpose.

Professor Sankoff, I'm asking this question, not because I'm opposed to the idea of having this type of amendment to the Criminal Code banning animal ownership and allowing discretionary bans up to a lifetime, as we do for weapons. I'm just curious about your thoughts whether there are any constitutional issues, a section 91or section 92 problem, in the division of powers, because it would seem to me that this would fall squarely under provincial jurisdiction property ownership rights. I don't know if it has the same public safety element that weapons offence bans have.

Could you comment on that, please?

10:30 a.m.

Prof. Peter Sankoff

It's an interesting question. I've never thought of it in quite that way. I'll just say this.

First of all, the way it's done under provincial law really is because there are so many orders issued under provincial law simply because most prosecutions involving animal cruelty—it's not technically animal cruelty, animal distress or whatever—are undertaken under the provincial provisions.

I would just start by saying one of the reasons for that is how ineffective the federal cruelty provisions are. Let's just leave that aside. Of course, the power to order a prohibition already exists in section 447.1. What we're talking about here is extending it mostly from that section to apply as well in situations of bestiality.

The interesting question is whether or not section 447.1 as it currently stands is constitutional. I'm not aware of any challenge that's ever been brought to this particular provision. My feeling is that it does reflect the general idea in our animal cruelty provisions right now that ownership of animals involves some degree of obligation. There is a duty to keep animals, even under the federal law, in a way that is safe from harm.

I think section 447.1 reflects that animals are not strictly property. That statement has been expressed numerous times in the jurisprudence by judges who recognize that there's a little bit more to it than that. There is certainly an obligation to animals in a way that doesn't exist for any other property.

Again, it's difficult to speculate on what would happen if a constitutional challenge were brought, but I do think that the obligation aspect of what exists in our federal cruelty provisions would be enough of a linchpin for the courts to say that it's more than just property. The prohibition goes to the idea that there are real vulnerabilities in existence here, which have a public dimension to them, going beyond the property aspect.

I guess the long and short of it would be, if this was only about property, then the federal government couldn't legislate on cruelty at all. I think that the public dimension of that is what allows the courts to do that. I think that public dimension would extend into the sentencing process involving prohibition orders. That would be my guess. Again, it's difficult to speculate, but that would be my guess.

10:35 a.m.

Liberal

Colin Fraser Liberal West Nova, NS

That's helpful.

Thank you.

10:35 a.m.

Liberal

The Chair Liberal Anthony Housefather

Mr. McKinnon.

10:35 a.m.

Liberal

Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC

Thank you, Chair.

My question is for Professor Sankoff.

In your testimony and also in your response to Mr. Rankin, I believe you said that bestiality is not treated as a sexual offence, but that it is a sexual act, and that it should be treated as a sexual offence. Is that correct?

10:35 a.m.

Prof. Peter Sankoff

It is and it isn't. What I said is that it currently is treated only as a sexual offence when children are involved in the sense that, for the prohibition order, you can order it if children have been involved.

10:35 a.m.

Liberal

Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC

Should it be treated as a sexual offence when children are not involved as well?

10:35 a.m.

Prof. Peter Sankoff

My view is, not in the way that we typically look at sexual offending. It's true that right now it's placed in the sexual offences sort of grab bag category of the code. It's in that little section there; it comes after children, but it doesn't exclusively deal with children. It's in what used to be the morals offences, the part of the code that has been the morals offences. They've been stripped down year after year as Parliament continues to remove them.

It's in the same place as buggery used to be, and that's now gone. It's in the same place as other acts prohibiting abortion, etc. All those things have just been removed one after the other to the point where bestiality is sort of standing there alone in its own category. I can't sit here and say before this committee that it's not a sexual offence. It involves sexual conduct, but it's a sexual offence with a non-human being. As a result, it seems to have more in accord in its modern conception with animal protection than it does purely with sexual offending.

That's why I have to say it covers a little bit of both of those things.

10:35 a.m.

Liberal

Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC

Okay. I'm not quite clear on this. It seems to me that either it kind of is a sexual offence or not. I'm wondering whether people who commit bestiality offences and are convicted should appear on sexual offender registries and so forth.

10:35 a.m.

Prof. Peter Sankoff

They don't right now. I'm just telling you what the situation is.

10:35 a.m.

Liberal

Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC

Should they?

10:35 a.m.

Prof. Peter Sankoff

It's an interesting question. I haven't done the study necessary. I certainly wasn't prepared to do the study necessary at this point to show whether there is any evidence to suggest that those who commit bestiality go on to commit other sexual offences.

If you look at what the prohibition order does, you'll see that it's designed to stop sexual offenders from being in situations where they can commit further offences. It keeps them away from children. It keeps them out of positions of responsibility, and so on.

I don't have the evidence to answer whether or not that's true of those who perform bestiality simpliciter. To be clear, where they perform it in the presence of children, that is sexual offending. I have no issue with that and the code already deals with that. Whether or not there's the proof to show that it's necessary, I unfortunately don't know.

10:40 a.m.

Liberal

The Chair Liberal Anthony Housefather

Please make it a short one because your time is up.

10:40 a.m.

Liberal

Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC

You also indicated that cases of bestiality are difficult to prosecute. Could you explain that and what could be done to make them easier to prosecute?

10:40 a.m.

Prof. Peter Sankoff

The reality is that all animal cruelty and animal bestiality are difficult to prove because you don't have the core witness. That's always the issue. Prosecuting child sexual offences is also incredibly difficult when the children are very young. You just take that and extrapolate it to animals; it's the same thing. You don't have any witness, so essentially you're relying on other witness testimony.

To be honest, the only time we really get bestiality offenders is when they record it—it's video taped—because it's so impossible to get any evidence if it's done in private unless they either do it with other people around or they do it on video. The reason I suggested that it's a good idea to extend it to all forms of sexual conduct, which I think does make it slightly easier to prosecute, is that you're more likely to have a witness to sexual touching than you are to sexual penetration. That's why I believe that anything that can expand the definition is good.

10:40 a.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you very much.

I want to thank both of our witnesses. You've been enormously helpful.

Peter, it's great to see another Dollard person back before the committee. We really appreciate your testimony. It was great.

Same to you, Josie. Thank you so much.

Have a wonderful day, everybody.

Committee, this is the approval of the travel budget for the modern slavery project caucus in London. The lower number is $22,479.59 to send Ms. Khalid, Mr. Cooper and Mr. Rankin. Is everybody okay with that?

10:40 a.m.

Some hon. members

Agreed.

10:40 a.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you.

The meeting is adjourned.