What is “bestiality” in Canada?
Bestiality in Canada is defined under s. 160(7) of the Criminal Code as “any contact, for a sexual purpose, with an animal”. The offence can be committed where one commits the offence first-hand (see: s. 160(1) of the Criminal Code) or compels another person to commit the offence (see: s. 160(2) of the Criminal Code).
In 2019, Bill C-84 received Royal Assent and the definition of bestiality was changed to the current one above. Before this Bill was passed, bestiality covered very few sexual acts with an animal. In 2016, the Supreme Court of Canada in a case called R v DLW, 2016 SCC 22 (CanLII),  1 SCR 402, determined that penetration was an essential element of the offence. This left out an array of obscene acts related to abusing animals. However, with the 2019 change, acts beyond penetration may now be captured by this offence. This serves as important because if you are charged with bestiality for an act you committed before the date of Royal Assent of Bill C-84 (June 21, 2019), the past definition will apply to your charge and not the current one. This can have a drastic effect on the way these charges are prosecuted.
Some examples of bestiality may include:
- Penetration of an animal by oneself or with the use of an object
- Performing fellatio or cunnilingus on an animal or having the animal perform fellatio or cunnilingus on oneself or another person
- Masturbation or handling of animal genitalia for a sexual purpose
- An act committed against an animal which brings the offender sexual gratification
Every case is different. Defences that may be available in one case may not be available in another. The strength of any defence rests on the evidence against you and the precise details of the allegations.
Generally, defences to bestiality include showing a lack of mens rea or actus reus (meaning the mental and physical elements of the offence are not made out) and Charter arguments which point to a specific part of the investigation where your constitutional rights (such as your right to be free from unlawful search and seizure) may have been violated.
The punishment for committing bestiality will depend on the manner in which the offence is committed and the Crown’s election of the charge.
*Note that indictable charges are the more serious category of criminal offences and summary charges are the less serious category of criminal offences.
- As per 160(1) and s. 160(2) of the Criminal Code, where bestiality is committed first-hand or one compels another to commit bestiality, this is a hybrid offence (i.e., the Crown will elect to proceed either via indictment or summarily depending on the nature of the offence and the circumstances surrounding the offender).
- If charged via indictment, the offender is subject to a maximum penalty of 10 years imprisonment.
- If charged summarily, the offender is subject to a maximum penalty of 2 years less a day imprisonment and/or a $5000 fine.
- As per 160(3) of the Criminal Code, if the offence is committed in front of a person under the age of 16 years, or a person who is under the age of 16 is compelled to commit bestiality by the offender, this is also a hybrid offence.
- If charged via indictment, the offender is subject to a minimum sentence of one-year imprisonment, but can serve no more than 14 years imprisonment (see: 160(3)(a)).
- If charged summarily, the offender is subject to a minimum sentence of six months imprisonment, but can serve no more than two years less a day imprisonment (see: 160(3)(b)).
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Overview of the Offence
Section 160 of the Criminal Code reads as follows:
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.
Marginal note: 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.
Marginal note: 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.
Definition of bestiality
(7) In this section, bestiality means any contact, for a sexual purpose, with an animal.
To secure a conviction, the Crown must prove both the requisite mens rea (mental element of the offence) and actus reus (the physical act or omission which constitutes the offence). The Crown is tasked with proving these elements beyond a reasonable doubt. If BOTH are proven, a conviction may be entered. One element alone does not suffice for a conviction.
The Guilty Act (Actus Reus)
Since the amendments made in 2019 to the Criminal Code which included the insertion of a definition of bestiality (noted directly above this section or in s. 160(7) of the Criminal Code), the actus reus umbrellas an array of acts which might be committed against an animal. Because the Code defines bestiality as any act with a sexual purpose, virtually any act committed against an animal could meet the requisite actus reus element of the offence. The key, in these kinds of offences, is for the Crown to prove that the act was committed with a sexual purpose; this speaks to the mens rea element of the offence which we discuss directly below. If, however, you’ve been charged with bestiality for an act committed before June 21, 2023, then a penetrative act will have had to occur with the animal for the actus reus to be made out.
The Guilty Mind (Mens Rea)
While in real-time, the year 2019 feels like ages ago, in criminal justice time, 2019 is practically yesterday. In other words, the courts have yet to define “for a sexual purpose” as newly instituted (as of June 2019) in the Criminal Code definition of bestiality. Therefore, its meaning in the bestiality context has been left open to the courts for interpretation. Understanding what Parliament meant when they implemented s. 160(7) of the Criminal Code (bestiality definition) might take years yet. The wheels of the criminal justice system can turn notoriously slow, and it can take time for courts to provide a test or definition.
Nevertheless, this provides opportunities for lawyers to construct arguments on how bestiality should be defined and creates flexibility in applying the law. Arguably, the phrase “for a sexual purpose” is vague and overbroad and therefore, may make an array of definitions plausible. The Crown in these cases will be more likely to take a stance which suggests the “for a sexual purpose” aspect of the offence encompasses a broad range of acts. A strong defence lawyer will hold the Crown accountable to these proposals and ensure they are properly rationalized given Parliament’s intent.
Factual innocence is available as a defence when the facts or evidence of the case demonstrate that you could not have committed the offence. An example of this might be mistaken identity. Perhaps law enforcement incorrectly identified you as the perpetrator. A strong defence lawyer will always carefully consider the evidence brought against you and will recommend the strongest possible defence as allowed by the evidence.
Lack of Mens Rea or Actus Reus
As mentioned earlier, to convict a person of bestiality, the Crown must prove both the actus reus and mens rea elements of the offence. Proving only one or neither will be sufficient for an acquittal on the charge(s). If, for example, the Crown cannot prove that you committed the act for a sexual purpose, the offence cannot be made out.
Violation of Constitutional Rights
A strong defence lawyer will always consider the best course of action in defending your criminal charge. Sometimes this course of action may rely on demonstrating that your constitutional rights were infringed. This infringement could be, for example, a general violation of constitutional rights against society through ambiguous law-making or to do with your own personal legal/investigatory rights as set out in the Charter of Rights and Freedoms.
Laws are not allowed to be overly broad, vague or arbitrary. Therefore, one course of action may be to demonstrate to a court that the new definition of bestiality is such, and therefore, should be null/void. This would almost undoubtedly require trial and may be a more strenuous and demanding angle of attack, but it does exist as a possibility.
Furthermore, the Canadian Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights, either deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s.24(2) of the Charter.
As outlined above, the punishment for bestiality can vary drastically and will depend on the type of charge (s. 160(1), (2), or (3) charge) and the Crown’s election of either summary or indictable charge. Below is a table which outlines the prospective sentence one may face depending on the nature and category of the charge(s).
Mandatory minimum sentences for bestiality involving a child (i.e., s. 160(3) offences) demonstrate Parliament’s and societies’ degree of admonition for such acts and convey to the courts that these offences must be taken very seriously at sentencing. With only minor exceptions, mandatory minimums have been said to be unconstitutional. Where exceptions are made, the seriousness of such an offence is implied.
Sentencing dispositions available to a judge for a section 160(1) or (2) conviction may include a conditional or absolute discharge (s. 730 of the Criminal Code) [highly unlikely in these types of cases]; probation (s. 731(1)(a) of the Criminal Code); stand-alone fine (s. 731(1)(b) of the Criminal Code); custodial sentence; custodial sentence conjoined with probation (s. 731(1)(b) of the Criminal Code); custody conjoined with a fine (s. 734 of the Criminal Code); or a conditional sentence (s. 742.1 of the Criminal Code). If convicted of a s. 160(3) offence (bestiality involving a minor), you will serve a custodial sentence.
The court is also free to implement what is called “offence-specific orders” as per ss. 160(4) and (5) of the Criminal Code. If convicted of one of the above offences, the court is allowed to order, in addition to the sentence handed down:
(a) 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.
See: s. 160(4) of the Criminal Code
As per s. 160(5) of the Criminal Code, if you are in breach of one of these orders, you are guilty of an offence punishable on summary conviction.
Frequently Asked Questions
Can you go to jail for Bestiality?
In short, yes, you can go to jail for committing bestiality. In fact, it is likely that if you are convicted of bestiality, you will serve some sort of custodial sentence. If you are charged with a s. 160(1) or (2) offence (bestiality or compelling bestiality) and convicted, there is no mandatory minimum sentence, however, sentencing precedence for these types of offences is typical of a term of imprisonment. If you are charged with a s. 160(3) offence and convicted, you will serve a custodial sentence as this is statutorily mandated. For more on punishments related to bestiality click here.
Is Bestiality a serious offence?
Generally, offences of this nature or within Part V of the Criminal Code (Sexual Offences, Public Morals and Disorderly Conduct) are serious offences. Bestiality is a serious offence given the potential for a long custodial sentence and a trend towards sentencing these offences with principles of deterrence and denunciation at the forefront of sentencing goals. Additionally, if committed in the presence of a child (as per s. 160(3) of the Criminal Code) the sentence will carry with it a minimum mandatory custodial sentence of at least 6 months imprisonment. Because mandatory minimum sentences have generally been deemed unconstitutional with minor exceptions (usually reserved for homicide and sexual offences against children), anytime Parliament implements a mandatory minimum sentence and it goes unfettered by the courts, it is presumably, meant to be treated quite seriously.
Is Bestiality a summary or indictable Offence?
Bestiality is a hybrid offence meaning that the Crown can elect to proceed either summarily or via indictment. The Crown’s election depends on many factors, however, they may consider the accused’s criminal history, the circumstances of the offender, the seriousness of the offence, etc.
R v CH, 2021 ABPC 119 (CanLII)
The accused allowed dogs to penetrate him and made videos of his interactions with dogs. At the time of the offence, the accused was 28 years of age, had no criminal record and had been on bail for approximately 18 months without incident. The defence, in its submissions to the court, brought to light the accused’s difficult, unloving childhood. It was learned that CH was sexually abused when he was 14 years old and thereafter become involved in a sexual lifestyle that led him to animal, child and other forms of pornography, role-playing, desensitization and, ultimately, these offences. It was also learned at trial that CH had been diagnosed with pedophilic disorder, zoophilia and sexual role-playing disorder, and was considered moderate to high risk to re-offend. The accused acknowledged the wrongness of his behaviour and his need for help. At sentencing, he had attended some sexual addicts anonymous meetings. CH pleaded guilty to bestiality and five other sexual offences. For all six offences, he was sentenced to a global sentence of 7.5 years of incarceration. The judge set the term for the bestiality charge at six months incarceration, consecutive to other sentences. At sentencing, the judge considered the accused’s personal circumstances, his early guilty plea, and the principles of proportionality, denunciation, and deterrence.
You can read the full case here.
R v LD, 2022 ONCJ 480 (CanLII)
In an authorized police search and seizure of the accused’s electronic devices related to a child pornography investigation, a 59-second-long video was discovered on the accused’s phone where an act of bestiality between the accused and her dog was stored. The video showed the dog performing cunnilingus on LD. LD was 41 years old. She did not have a criminal record. The court was supplied with a presentence report and a psychological assessment of LD. In addition, the defence filed four letters of support and a calendar of substance abuse counselling the defendant had undertaken. LD pleaded guilty to one count of child pornography and one count of bestiality. The Crown submitted that an appropriate sentence would be four months imprisonment concurrent on both counts and a three years probation order to follow. The defence argued that a conditional sentence would be appropriate. Ultimately, the court ordered 3 months imprisonment (2 months for the child pornography charge and 1 month for the bestiality charge) to be served consecutively and a two-year long probation order to follow. The sentencing judge considered principles of sentencing such as proportionality, denunciation and deterrence and also recognized Parliament’s 2012 amendment to the Criminal Code which doesn’t permit conditional sentences for offences carrying a maximum 10-year custodial sentence.
You can read the full case here.
R v Dejaeger, 2018 NUCA 7 (CanLII)
The accused was a priest of a Roman Catholic Church. Between 1978 and 1982, the accused methodically and systematically victimized vulnerable children and youth of his parish. The accused was convicted of 32 sex-related offences including bestiality. Most of the victims were between 9 and 13 years of age when the offences occurred. The offences involved fondling of children’s genitals, forced or attempted masturbation, forcible confinement, anal intercourse with a dog, forced anal intercourse and fellatio, full vaginal intercourse, and pain inflicted on victims. The accused was sentenced to a global term of imprisonment of 19 years. The sentencing judge found that all of the offences involved elements that included breaches of trust and an abuse of position of authority. The accused appealed his sentence, however, the appeal was dismissed.
You can read the full case here.
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