Opinion
3 min

Will the bestiality ruling finally lead to a repeal of the sodomy law?

Supreme Court ruling ought to prompt a thorough review of our outdated sexual crimes laws

Supreme Court of Canada, pictured here in 2007. Credit: Jason Rowe/Flickr

If the new Trudeau government had worked faster to pass its proposed trans rights bill, things might have been different — but we’re here now, so we may as well say it. The first big expansion of sexual rights in the Trudeau II era is the Supreme Court’s 6-1 decision finding that most forms of bestiality are completely legal.

Trudeau’s Canada: Where you can dry hump all the sheep you like, but two 17 year olds who have anal sex can be sent to jail for six months.

Golf claps, everyone.

In the bizarre and, frankly, horrifying case, the Supremes reversed a bestiality conviction against a Prince George man who had forced his stepdaughter to allow the family dog to lick peanut butter off her genitals, and photographed it (other related convictions still stand). Their reasoning: Parliament only intended “bestiality” to mean penetrative sex with an animal.

I’m sure the zoophilia lobby, and perhaps the peanut butter lobby, are thrilled. But it’s hard not be confused by the court’s logic here.

“Parliament may wish to consider whether the present provisions adequately protect children and animals,” the judgement reads. “But it is for Parliament, not the courts to expand the scope of criminal liability for this offence.”

Interesting. But when the courts expanded the crime of “sexual assault” to include potentially exposing a sex partner to HIV, that was a-ok? Even though Parliament had explicitly repealed the law that criminalized transmission of venereal diseases in 1985?

Maybe the court would just prefer that people with HIV give their border collies the ol’ Ivy League rub.

It was always going to be tricky for the Trudeau Liberals to get a lot done on the justice file in their first year in office. Much of the needed reforms that queer and trans people are seeking require legislative action, and the short legislative schedule left by the outgoing Conservatives was largely taken up by passing a budget and debate on the assisted dying bill prompted by last year’s Supreme Court action on euthanasia. But it’s not as if the Justice Department can’t do multiple things at once.

The government stalled on introducing its simple trans rights bill until seven months after the election, perhaps planning for a nice photo op on the International Day Against Homophobia and Transphobia. Fine, at least that’s in the pipeline.

But there’s been no public action or even consultation on the promised review of the Criminal Code to ensure that non-Charter compliant sections — like Section 159, which sets differential ages of consent for anal and vaginal sex and criminalizes anal sex involving more than two people – are repealed. Ditto for the promised repeal of C-51, the Conservatives’ hated Anti-Terrorism Act.

And we haven’t heard a word about the government’s plans for dealing with the Conservatives’ much disliked and probably unconstitutional Protection of Communities and Exploited Persons Act, which re-criminalized aspects of sex work, since Justice Minister Jody Wilson-Raybould told me that she “commit[s] to sitting down with those directly impacted, sex workers.”

But the Liberal backbench is at work, at least. In February, Liberal MP Nathaniel Erskine-Smith introduced Bill C-246, the Modernizing Animal Protections Act, which would redefine bestiality to mean any “sexual activity between a person and an animal,” and introduce new sections to criminalize killing or harming of animals

It’s so far gotten a cold reception from the justice minister, who’s afraid it may be overly broad and essentially criminalize hunting, fishing and scientific research. But the Supreme Court ruling has given Erskine-Smith’s bill fresh media interest.

Wilson-Raybould should use this opportunity to launch a thorough review of the Criminal Code sections dealing with both animal welfare and sexual offences — the bestiality section of the code lands right after the anal sex prohibition. At a minimum, the anal sex law should be fully repealed, but Egale has also listed a number of other anti-queer laws that need examination as well

Queer people should withhold support of any bill that seeks to amend any part of the sexual offences section of the code without addressing Section 159.

If the Supreme Court can get Parliament to jump with its euthanasia decision, at least we can hope the bestiality decision will force it to return its attention to our outdated sex crimes law.