I'm very honoured to be here speaking to this bill. I appeared before the Supreme Court in the D.L.W. case that prompted this particular piece of legislation, and I've given a lot of thought to this particular issue as a result.
First of all, I want to congratulate members of Parliament for taking this on. I understood that the Minister of Justice, on introduction of the bill, said it was done in order to protect animals from harm. I think that's a wonderful change from what we heard of the bill's original origin when it was spoken about in the Supreme Court.
I did want to say, echoing the last speaker, that while this bill is an important piece of the puzzle, it's really not enough. I have done extensive study of animal cruelty laws around the world, and I usually say without much reservation that our federal animal cruelty laws are amongst the very worst in the western world. We are one of the few countries in the western world, and especially in the Commonwealth, that have not made substantial reform of our animal cruelty laws within the last decade.
The U.K., Australia, New Zealand and other countries have made radical studies and attempts to clarify problems. I can tell you that as someone on the ground working with these issues, our animal cruelty laws cause real problems for prosecutors, investigators and the courts. That is a direct result of Parliament's failure to reform them, and to make sense of some of the provisions that simply do not work. I would ask this committee to look at doing those things in future.
I want to talk briefly about why I believe this bill fits very nicely with the way in which the criminal law is evolving, and then perhaps comment on one or two of its shortcomings.
It is good that this is a shift, that we are changing bestiality from what used to be called a morality offence. The reason is that there are very few pure morality offences left in the Criminal Code and those that are left are very difficult to adjudicate for the courts. Finding the range of conduct that is said to fall within this particular wrongful morality is very complex and the courts don't like it.
The Supreme Court of Canada has indicated a clear preference [Technical difficulty—Editor] morality. That's what this change to bestiality is doing, in that it's assessing the harm against animals that takes place when you involve them in a sexual offence. They are vulnerable beings that do not have the ability to consent. It does so by recognizing that harm does not have to mean actual harm. That's an important point to look at when we look at what this bill does. Certain defenders of the status quo have recognized, and I think they have recognized correctly, that not every sexual act involving an animal causes actual harm. I think that is undoubtedly true. I mean harm to the animal when you're talking about the harms in question.
I wish to point out to the committee that the fact that certain sexual acts involving animals may or may not cause harm to the animal doesn't matter. I want to emphasize that our modern view of criminal law recognizes that there are times when we are allowed to criminalize the risk of harm. That's what I think this bill actually does. Where the risk is high enough, and the benefit of the act of question is low enough, it is acceptable to criminalize even if actual harm does not occur.
A good example that matches with what this bill is going to do involves polygamy. It's recognized in the court case that looked at whether or not polygamy was constitutional, that in an ideal world, it is possible to have polygamous marriages that in and of themselves don't cause harm. However, the court in the reference recognized that the risks of the act of polygamy across the board are high enough, and the people involved are vulnerable enough, that the criminal law is entitled to step in and say, “This act itself needs to be banned in all instances, even if it doesn't cause harm in every single situation.”
This is the exact same thing with bestiality. Not every sexual act involving an animal is going to cause harm to the animal, but given the special vulnerability of animals, the private nature of this abuse, and most importantly, the fact that animals will never be able to testify or relate the actual harm or conduct that they suffered, the risks are simply too high, given that the activity provides so little benefit to Canadian citizens.
Finally, evidence of psychological harm, which I believe has been shown through studies looking at bestiality, are very difficult to substantiate, given the burden of proof and the difficulty of obtaining sufficient evidence.
The idea that you could leave bestiality as a harm-based offence and only prosecute in instances of harm I believe is a flawed way of looking at this, given the nature of the conduct in question and the difficulties involved with prosecuting offences involving animals. Animals are the most vulnerable beings in our care and in our society. Given the lack of benefit and the message that is sent if we allow continued sexual conduct involving those that can never consent and cannot resist, given the power imbalances between humans and animals, a complete ban not only accords with our developing view of criminal law theory, but it also makes good sense.
I'm happy to take any criminal law related questions involving this bill, but let me just mention one concern that I have. It involves the way bestiality is separated from the other animal protection-based offences of the code. It's very clear that bestiality simpliciter—and I define that specifically as being separated from bestiality involving the presence of children—has never been viewed as a sexual offence even though it's contained in the sexual offences section of the code.
I say that because if you look at section 161 of the Criminal Code, which involves prohibition orders and special orders against sex offenders, you see that you cannot even order a ban involving sex offenders on someone who has committed bestiality simpliciter. The reason for this is that the person is not a sex offender in the ordinary way that we think of sex offenders, so you don't need to keep him away, necessarily, from children and other beings, or at least that is what Parliament has said in the past when it enacted section 161. I think that Parliament today is correct in recognizing that bestiality simpliciter is mostly about animals and about protecting them, and in order for that to make sense, it needs to be linked to the punishment sections that involve repeat offenders involving animals.
I think it is a large mistake not to link this particular offence to the prohibition order section of the code in section 447.1, which allows the court to impose prohibition orders on those who commit bestiality against animals. It seems to me that those who abuse the trust of animals through sexual exploitation simply should not have access to them any further, and whether that is done through a prohibition order, it's really the most effective way to complete that type of sentence upon an offender.
I wish to thank you very much for having me come before the committee today. I'm happy to take any questions that I can assist with.