R. v. D.L.W.

R. v. D.L.W.
Collection
Supreme Court Judgments
Date
2016-06-09
Neutral citation
2016 SCC 22
Report
[2016] 1 SCR 402
Case number
36450
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell
On appeal from
British Columbia
Subjects
Criminal law
Notes
SCC Case Information: 36450
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402
Appeal heard: November 9, 2015
Judgment rendered: June 9, 2016
Docket: 36450
Between:
Her Majesty The Queen
Appellant
and
D.L.W.
Respondent
- and -
Animal Justice
Intervener
Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Côté and Brown JJ.
Reasons for Judgment:
(paras. 1 to 124)
Dissenting Reasons:
(paras. 125 to 153)
Cromwell J. (McLachlin C.J. and Moldaver, Karakatsanis, Côté and Brown JJ. concurring)
Abella J.
R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402
Her Majesty The Queen Appellant
v.
D.L.W. Respondent
and
Animal Justice Intervener
Indexed as: R. v. D.L.W.
2016 SCC 22
File No.: 36450.
2015: November 9; 2016: June 9.
Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Côté and Brown JJ.
on appeal from the court of appeal for british columbia
Criminal law — Bestiality — Elements of offence — Interpretation — Accused convicted of bestiality — Accused put peanut butter on complainant’s vagina and had dog lick it off while he videotaped — Whether term “bestiality” has well‑understood legal meaning in common law and if so, whether Parliament intended to depart from that meaning when that term was first introduced in English version of Criminal Code — Whether penetration an essential element of offence of bestiality — Criminal Code, R.S.C. 1985, c. C‑46, s. 160 .
After a 38‑day trial, D.L.W. was convicted of numerous sexual offences against his two stepdaughters committed over the course of 10 years, including a single count of bestiality. D.L.W. first brought the family dog into the bedroom with the older complainant when she was 15 or 16 years old. He attempted to make the dog have intercourse with her and, when that failed, he spread peanut butter on her vagina and took photographs while the dog licked it off. He later asked her to do this again so he could make a video. At trial, D.L.W. was found to have done all of this for a sexual purpose. The trial judge was of the view that bestiality in the Code means touching between a person and an animal for a person’s sexual purpose and he concluded that penetration was not required. The trial judge preferred to interpret the elements of bestiality so that they would reflect the current views on what constitutes prohibited sexual acts. A majority of the Court of Appeal allowed D.L.W.’s appeal against the bestiality conviction and acquitted him of the bestiality count. The majority concluded that the term “bestiality” had a common law meaning that included penetration as one of its essential elements. The dissenting judge found that penetration was not an element of bestiality and he would have dismissed the appeal.
Held (Abella J. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and Cromwell, Moldaver, Karakatsanis, Côté and Brown JJ.: Since 1955, criminal offences in Canada (apart from criminal contempt) have been entirely statutory. However, the common law continues to play an important role in defining criminal conduct as defining the elements of statutory offences often requires reference to common law concepts. Applying the principles that guide statutory interpretation leads to the conclusion in this case that the term “bestiality” has a well‑established legal meaning and refers to sexual intercourse between a human and an animal. Penetration has always been understood to be an essential element of bestiality. Parliament adopted that term without adding a definition of it and the legislative history and evolution of the relevant provisions show no intent to depart from the well‑understood legal meaning of the term. Moreover, the courts should not, by development of the common law, broaden the scope of liability for the offence of bestiality. Any expansion of criminal liability for this offence is within Parliament’s exclusive domain.
When Parliament uses a term with a legal meaning, it generally intends the term to be given that meaning. Words that have a well‑understood legal meaning when used in a statute should be given that meaning unless Parliament clearly indicates otherwise. A further consideration is the related principle of stability in the law which means that absent clear legislative intention to the contrary, a statute should not be interpreted as substantially changing the law, including the common law. Parliament is deemed to know the existing law and is unlikely to have intended any significant changes to it unless that intention is made clear. While these interpretive principles are easy to state, how they apply in particular cases may be controversial. Sometimes, the controversy concerns the state of the common law when Parliament acted: in other words, the debate is about whether the term used had a clearly understood legal meaning when it was incorporated into the statute. In this case, the term “bestiality” did have a clear legal meaning when Parliament used that term without further definition in the English version of the 1955 Criminal Code . Bestiality meant buggery with an animal and required penetration. It was clear that to secure a conviction, the prosecution had to prove that penetration of an animal, or, in the case of women, penetration by an animal, had occurred. This was the state of the law when the Offences Against the Person Act, 1861 was enacted in England. The offence in substantially the same form was carried over into the first English version of the Canadian Criminal Code in 1892 and continued to be in force until the offence called bestiality was introduced into the English version of the Code in the 1955 revisions.
In Canada, as in England, the early history of the offence shows that what was commonly called “bestiality” was subsumed under the offences named sodomy or buggery and that penetration was one of its essential elements. The English language version of the Canadian statute simply provided that buggery with an animal was an offence, but did not further define it. However, the French version of “buggery . . . with any other living creature” being “bestialité” shows that “buggery with an animal” and “bestiality” were the same thing. There can be no serious dispute that the Canadian offence of buggery with an animal/la bestialité in the 1892 Code, which continued to be in force until the 1955 revisions, had a widely and generally understood meaning: the offence required sexual penetration between a human and an animal. Parliament, by using that term without further definition, intended to adopt that well‑understood legal meaning.
Parliament did not explicitly or by necessary implication change the well‑understood legal meaning of the term “bestiality” when it amended the Criminal Code in 1955 and in 1988. There is no express statutory provision expanding the scope of the bestiality offence and further, there is nothing in the legislative evolution and history that supports any parliamentary intent to bring about such a change by implication. The required clarity and certainty are entirely lacking. Courts will only conclude that a new crime has been created if the words used to do so are certain and definitive. This approach not only reflects the appropriate respective roles of Parliament and the courts, but the fundamental requirement of the criminal law that people must know what constitutes punishable conduct and what does not, especially when their liberty is at stake. The important questions of penal and social policy involved in broadening the offence of bestiality are matters for Parliament to consider, if it so chooses. Parliament may wish to consider whether the present provisions adequately protect children and animals. But it is for Parliament, not the courts, to expand the scope of criminal liability for this offence. Absent clear parliamentary intent to depart from the clear legal definition of the elements of the offence, it is manifestly not the role of the courts to expand that definition.
The English version of the Criminal Code did not use the term “bestiality” until 1955, but the French version did. In the 1955 revision, the word “bestiality” was first introduced into the English version of the Code and the reference to “buggery . . . with any other living creature” was deleted, but with no definition of either the term “buggery” or “bestiality”. The text of the 1955 revision does not suggest that any significant change in the law was intended. This appears to be simply the substitution of a more precise legal term in the English version for the previous more general expression. The absence of a statutory definition of either term is consistent only with the intent to adopt the accepted legal meanings of both terms. Here, there is no evidence that any substantive change was intended. The fact that no substantive change occurred in the French version of the offence leads almost inevitably to the conclusion that the change in terminology in the English version was simply intended to give the offence a clearer, more modern wording which would be more consistent with its French equivalent. There is nothing in this tweak to the English version of the Code to support the view that any substantive change to the elements of the offence was intended. The text, read in both of its official versions, the legislative history and evolution, all of the commentators and the applicable principles of statutory interpretation support the view that the 1955 revisions to the Code did not expand the elements of bestiality and that penetration between a human and an animal was the essence of the offence.
A complete overhaul of sexual offences against the person in 1983 was followed by the 1988 revisions which were focused on enhancing the protection of children against sexual abuse. In 1988, among other things, the new legislation repealed the former buggery offence and replaced it with the new offence of anal intercourse and bestiality was given its own section. Through all of the many changes, changes which included fundamental revisions of the definition of several sexual offences and the repeal of others, the Code continued to make bestiality an offence without further defining it. The fact that Parliament made no change to the definition of bestiality in the midst of a comprehensive revision of the sexual offences supports only the conclusion that it intended to retain its well‑understood legal meaning. It defies logic to think that Parliament would rename, redefine and create new sexual offences in a virtually complete overhaul of the sexual offence provisions in 1983 and 1988 and yet would continue to use an ancient legal term with a well‑understood meaning — bestiality — without further definition in order to bring about a substantive difference in the law. The new bestiality offences added in the 1988 revision, while not changing the definition of the underlying offence, added protections for children in relation to that offence.
Finally, contrary to the dissent’s view, it does not follow that all sexually exploitative acts with animals that do not involve penetration are perfectly legal. There are other provisions in the Code which may serve to protect children and others from sexual activity with an animal that does not necessarily involve penetration.
Per Abella J. (dissenting): The common law origins of the offence of “buggery with mankind or with any animal” were ecclesiastical and emerged from the Church’s hegemonic jurisdiction over sexual offences and its abhorrence for non‑procreative sexual acts, which were condemned as being “unnatural”. The Church’s jurisdiction over sexual offences ended in 1533, but censorious attitudes did not, and death remained the penalty for “the detestable offence of buggery”. The question whether these acts were criminal only when there was penetration is, however, far from clear.
At no time was “buggery” ever defined by Parliament. Applying the principles of interpretation requires reviewing related Criminal Code provisions and the context in which the bestiality provision was first introduced. In 1955, for the first time, the offence of “bestiality” was expressly named as such in the English version of the Code. It too was never defined. The addition of the offence of “bestiality” must have been intended to mean something different from “buggery” because if the elements of bestiality and buggery were the same, the addition of “bestiality” to the 1955 Code was redundant and there was no need to change the provision from one prohibiting buggery, to one prohibiting buggery and bestiality.
Amendments in 1955 were also made to the Code’s animal cruelty offence to reflect an increased recognition of the importance of protecting animal welfare by expanding the category of birds and animals from only some, to all of them. It is in this transformed legal environment consisting of more protection for more animals, that the offence of “bestiality” first appeared. Whatever the common law meaning of “buggery” with animals had been, the creation of a distinct offence of bestiality in the same year that the animal cruelty provisions were expanded to protect more animals from exploitative conduct, reflected Parliament’s intention to approach the offence differently. Parliament’s purposes would have been inconsistent if the animal cruelty protection in the Criminal Code would now cover all birds and animals, but the bestiality provision would be limited to those animals whose anatomy permitted penetration. Requiring penetration for the offence of bestiality, technically leaves as legal all sexually exploitative acts with animals that do not involve penetration. This, in turn, completely undermines the concurrent legislative protections for animals from cruelty and abuse.
If there was any doubt about what Parliament intended in 1955, its intention is even clearer in light of the 1988 Amendments to the Code, when buggery and bestiality were divided into two separate provisions. The offence of “bestiality” was extended to include those who compelled its commission or who committed it in the presence of a child. It is difficult to accept that Parliament’s intention was to protect children from seeing or being made to engage in sexual activity with animals only if it involved penetration. Parliament must have intended protection for children from witnessing or being forced to participate in any sexual activity with animals. This wider protection for children can also be inferred from the other changes to the Code in the 1988 Amendments, introducing the offences of sexual interference, sexual exploitation, and invitation to sexual touching, all of which protected minors and none of which required penetration. As a result, by 1988, the language, history, and evolving social landscape of the bestiality provision lead to the conclusion that Parliament intended, or at the very least assumed, that penetration was not a necessary element of the offence.
The absence of a requirement of penetration does not broaden the scope of bestiality. It is more a reflection of Parliament’s common sense assumption that since penetration is physically impossible with most animals and for half the population, requiring it as an element of the offence eliminates from censure most sexually exploitative conduct with animals. Acts with animals that have a sexual purpose are inherently exploitative whether or not penetration occurs, and the prevention of sexual exploitation is what the 1988 Amendments were all about.
Cases Cited
By Cromwell J.
Not followed: R. v. M.G., 2002 CanLII 45200; referred to: United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; R. v. Jobidon, [1991] 2 S.C.R. 714; R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269; Will‑Kare Paving & Contracting Ltd. v. Canada, 2000 SCC 36, [2000] 1 S.C.R. 915; Townsend v. Kroppmanns, 2004 SCC 10, [2004] 1 S.C.R. 315; A.Y.S.A. Amateur Youth Soccer Association v. Canada (Revenue Agency), 2007 SCC 42, [2007] 3 S.C.R. 217; R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575; Walker v. The King, [1939] S.C.R. 214; Nadeau v. Gareau, [1967] S.C.R. 209; R. v. T. (V.), [1992] 1 S.C.R. 749; R. v. Cozins (1834), 6 Car. & P. 351, 172 E.R. 1272; R. v. Bourne (1952), 36 Cr. App. R. 125; Henry v. Henry, [1953] O.J. No. 347 (QL); R. v. Wishart (1954), 110 C.C.C. 129; Marcotte v. Deputy Attorney General for Canada, [1976] 1 S.C.R. 108; Frey v. Fedoruk, [1950] S.C.R. 517; R. v. McLaughlin, [1980] 2 S.C.R. 331; R. v. McIntosh, [1995] 1 S.C.R. 686; R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584; R. v. Cuerrier, [1998] 2 S.C.R. 371; R. v. McDonnell, [1997] 1 S.C.R. 948; Perka v. The Queen, [1984] 2 S.C.R. 232; Gralewicz v. The Queen, [1980] 2 S.C.R. 493; R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3; Paquette v. The Queen, [1977] 2 S.C.R. 189; R. v. Hibbert, [1995] 2 S.C.R. 973; R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687; Kirzner v. The Queen, [1978] 2 S.C.R. 487; R. v. Jacobs (1817), Russ. & Ry. 331, 168 E.R. 830; R. v. L.B., 2011 ONCA 153, 274 O.A.C. 365; R. v. E. (A.W.), [1993] 3 S.C.R. 155; R. v. Ruvinsky, [1998] O.J. No. 3621 (QL); R. v. Poirier, C.Q. Chicoutimi, Nos. 150‑01‑001993‑923 and 150‑01‑002026‑921, February 2, 1993.
By Abella J. (dissenting)
R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575; Henry v. Henry, [1953] O.J. No. 347 (QL); R. v. Wishart (1954), 110 C.C.C. 129; Marcotte v. Deputy Attorney General for Canada, [1976] 1 S.C.R. 108; R. v. Paré, [1987] 2 S.C.R. 618; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433; R. v. Chartrand, [1994] 2 S.C.R. 864; Reece v. Edmonton (City), 2011 ABCA 238, 513 A.R. 199; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. Kelly, [1992] 2 S.C.R. 170; Attorney General of Quebec v. Carrières Ste‑Thérèse Ltée, [1985] 1 S.C.R. 831; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. K.D.H., 2012 ABQB 471, 546 A.R. 248; R. v. J.J.B.B., 2007 BCPC 426; R. v. Black, 2007 SKPC 46, 296 Sask. R. 289.
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APPEAL from a judgment of the British Columbia Court of Appeal (Bauman C.J. and Lowry and Goepel JJ.A.), 2015 BCCA 169, 371 B.C.A.C. 51, 636 W.A.C. 51, 325 C.C.C. (3d) 73, 20 C.R. (7th) 413, [2015] B.C.J. No. 773 (QL), 2015 CarswellBC 1025 (WL Can.), setting aside the conviction for bestiality entered by Romilly J., 2013 BCSC 1327, [2013] B.C.J. No. 1620 (QL), 2013 CarswellBC 2238 (WL Can.). Appeal dismissed, Abella J. dissenting.
Mark K. Levitz, Q.C., and Laura Drake, for the appellant.
Eric Purtzki and Garth Barriere, for the respondent.
Peter Sankoff and Camille Labchuk, for the intervener.
The judgment of McLachlin C.J. and Cromwell, Moldaver, Karakatsanis, Côté and Brown JJ. was delivered by
Cromwell J. —
I. Introduction
[1] Sixty years ago, Parliament added an offence called bestiality to the English version of the Criminal Code, S.C. 1953-54, c. 51, s. 147 (the “1955 revisions”), but did not define its elements. Through successive ― and substantial ― amendments to the sexual offence provisions of the Code, Parliament has retained the offence of bestiality to the present day, but has never defined it. The crime is in fact a very old one which, at various times in its history, has also been referred to as a type of sodomy or buggery. But by whatever name it has been known in its long history, sexual penetration has always been one of its essential elements. Whether that is still the case under our present Code is the question that divided the British Columbia courts and now comes to us on appeal.
[2] The appellant Crown argues that bestiality no longer requires penetration, and is committed by engaging in any sexual activity with an animal. This submission asks us, in effect, to create a new crime. But that is not our role.
[3] In Canada, there can be no liability for common law crimes apart from criminal contempt of court: Criminal Code, R.S.C. 1985, c. C-46, s. 9 . As a result, changes to the scope of criminal liability must be made by Parliament; judges are not to change the elements of crimes in ways that seem to them to better suit the circumstances of a particular case: D. H. Brown, The Genesis of the Canadian Criminal Code of 1892 (1989), at pp. 124 and 148. To accept the Crown’s invitation to expand the scope of the crime of bestiality would be to turn back the clock and re-enter the period before codification of our criminal law, a period when the courts rather than Parliament could change the elements of criminal offences. My colleague Justice Abella is of the view that accepting the Crown’s position on this appeal would not widen the scope of bestiality. But of course it would. That is the point of the Crown’s position. If the Crown’s proposed changes to the elements of bestiality are to be made, they must be made by Parliament.
[4] Like the majority of the Court of Appeal, I conclude that penetration remains, as it has always been, an essential element of the offence of bestiality. I would dismiss the appeal.
II. Outline of the Facts and Judicial History
[5] This appeal relates solely to the respondent D.L.W.’s conviction for a single count of bestiality. That conviction was entered after a 38-day trial, at which the respondent was also convicted of numerous other sexual offences against his two stepdaughters committed over the course of 10 years: 2013 BCSC 1327. Both victims testified that the respondent began sexually fondling them by the age of 12 and, by the time they turned 14, he was forcing them to engage in oral sex and sexual intercourse and encouraging them to perform sex acts with each other. He was sentenced to a total of 16 years’ imprisonment. For the bestiality conviction in relation to the older complainant, he received a sentence of two years to run consecutively to sentences totalling 14 years imposed in relation to the other offences: 2014 BCSC 43.
[6] The trial judge, Romilly J., found that the respondent first brought the family dog into the bedroom with the complainant when she was 15 or 16 years old. He attempted to make the dog have intercourse with her and, when that failed, he spread peanut butter on her vagina and took photographs while the dog licked it off. He later asked her to do this again so he could make a video. The judge found that the respondent did all of this for a sexual purpose: 2013 BCSC 1327, at paras. 317-18 (CanLII).
[7] Bestiality is not defined in the Criminal Code, R.S.C. 1985, c. C-46 , which provides simply:
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.
The issue at trial and both levels of appeal concerns whether penetration is an essential element of the offence. If it is, the respondent must be acquitted as the alleged acts did not involve sexual penetration.
[8] The trial judge accepted the Crown’s position that penetration is not required. In his view, bestiality in the Code means touching between a person and an animal for a person’s sexual purpose. Relying on R. v. M.G., 2002 CanLII 45200 (C.Q.), the judge rejected the notion that the elements of bestiality were “frozen in time”, preferring instead to interpret the elements of bestiality so that they would “reflect current views on what constitutes prohibited sexual acts”: paras. 314-15. He held that the respondent was a party to this offence because he facilitated the complainant’s participation in bestiality by encouraging her to do so and by using the peanut butter: para. 320. The judge also concluded that the Crown had failed to prove that the respondent had compelled the complainant to commit the offence: para. 326. In other words, the trial judge in effect held that the complainant was the principal (but uncharged) offender and the respondent was a party to the offence which the complainant had committed. The Crown refers to this conclusion as “questionable” but it is relevant to the legal issue we face in this appeal to consider that the Crown’s position, if accepted, could have the effect of turning the victim into an offender.
[9] A majority of the Court of Appeal (Goepel J.A. writing for himself and Lowry J.A.) allowed the respondent’s appeal against the bestiality conviction and acquitted the respondent of the bestiality count: 2015 BCCA 169, 371 B.C.A.C. 51. The majority concluded that the term “bestiality” had a common law meaning that included penetration as one of its essential elements. The legislative history of the offence in Canada, the majority decided, did not show any parliamentary intent to depart from that meaning. Bauman C.J.B.C., dissenting, would have dismissed the appeal. He found that penetration was not an element of bestiality under the Canadian offence brought into force in 1955. The Crown appeals to this Court as of right by virtue of that dissent.
[10] The only issue is whether the majority of the Court of Appeal was wrong to conclude that penetration is an essential element of the offence of bestiality in s. 160(1) of the Code.
III. Analysis
A. The Parties’ Positions
[11] The Crown’s position is, first, that the term “bestiality” does not have a well-established and well-understood meaning in common law. In the early days of Canada’s Criminal Code , sexual activity with an animal was criminalized, in the English version, as buggery, an offence which, in the Crown’s submission, related only to anal intercourse, whether between humans or between a human and an animal. Next, the Crown submits that when the term “bestiality” was first used in the English version of the Code in the 1955 revisions, Parliament intended to separate it from the common law conception of buggery and give it its own meaning. Further, the argument goes that additional amendments to the Code effective in 1988 show that Parliament must have assumed that the term “bestiality” encompassed sexual activity of any kind between a human and an animal.
[12] The respondent, on the other hand, submits that when the term “bestiality” was introduced into the English version of the Code in 1955, that term had a specific, well-established and well-known legal meaning: vaginal or anal penetration between a human and an animal. Parliament, when it employed the term without further definition, must have intended its normal legal sense. None of the amendments on which the Crown relies affected the definition of the elements of the offence; Parliament simply continued to use the term without statutory definition.
B. The Analytical Approach
[13] The debate in this Court concerns whether the term “bestiality” has a well-understood legal meaning in the common law and, if so, whether Parliament intended to depart from that meaning when it used the word without further definition in the English version of the Code. At the root of the issue, therefore, is the question of how the common law and the statutory offences in the Code interact. This is an important question of principle that has implications far beyond this particular offence.
[14] The common law “forms an important and complex part of the context in which legislation is enacted and operates and in which it must be interpreted”: R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at §17.1. Nowhere in our law is this observation more apt than in relation to our Code.
[15] As I mentioned at the outset, criminal offences in Canada since 1955 have been entirely statutory (with the exception of criminal contempt). However, the common law continues to play an important role in defining criminal conduct. Defining the elements of statutory offences often requires reference to common law concepts: United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, at p. 930. Those concepts continue not only to illuminate the definition of statutory offences but also to give “content to the various principles of criminal responsibility those definitions draw from”: R. v. Jobidon, [1991] 2 S.C.R. 714, at p. 736. Many of the “basic premises” of the criminal law ― the necessary conditions for criminal liability ― are left to the common law: Law Reform Commission of Canada, Report 31, Report on Recodifying Criminal Law (1987), at p. 17.
[16] To take one obvious example, the mental element of many crimes is not specified in the Code. Yet, absent a contrary indication, Parliament is presumed to intend that true crimes have a subjective fault component. This is presumed because Parliament is taken to know that under the common law the act is not guilty unless the mind is guilty (actus non facit reum nisi mens sit rea): see, e.g., R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269, at paras. 20-23. Of course, Parliament can provide otherwise, but where it does not, the common law principle is applied.
[17] The question of how the common law interacts with statutory criminal law is not a new one. It is addressed, for example, by several pages of Sir James Fitzjames Stephen’s A History of the Criminal Law of England (1883), vol. II, at pp. 187-92. He concluded that there are four main ways in which criminal statutes may relate to the common law. The statute law may simply assume the continuing existence of some general principles and definitions of certain crimes. The statutes, in some instances, provide that some of those offences, aggravated or modified in particular ways, are subject to special punishments. In other instances, the statutes create offences unknown to the common law and, in a few cases, alter the principles and clarify the definitions of the common law. Determining which of these sorts of interactions applies in a particular offence is a matter of statutory interpretation.
[18] A number of principles guide statutory interpretation in this sort of case. The three most important are these. First, when Parliament uses a legal term with a well-understood legal meaning, it is presumed that Parliament intended to incorporate that legal meaning into the statute. Second, any departure from that legal meaning must be clear, either by express language or necessary implication from the statute. Finally, apart from criminal contempt, there can be no liability for common law crimes. Creating and defining crimes is for Parliament; the courts must not expand the scope of criminal liability beyond that established by Parliament.
[19] As I will explain, applying these principles leads me to the following conclusions. The term “bestiality” has a well-established legal meaning and refers to sexual intercourse between a human and an animal. Penetration has always been understood to be an essential element of bestiality. Parliament adopted that term without adding a definition of it and the legislative history and evolution of the relevant provisions show no intent to depart from the well-understood legal meaning of the term. Moreover, the courts should not, by development of the common law, broaden the scope of liability for this offence, as the trial judge did. Any expansion of criminal liability for this offence is within Parliament’s exclusive domain. In short, this case falls within Stephen’s first category: our Code assumes the continuing existence of the common law definition of this crime.
C. The Accepted Legal Meaning of “Bestiality”
(1) Parliament Intends the Legal Meaning