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Fish and Wildlife Conservation Act (FWCA) - Bounty Hunting. Animal Justice v. Minister of Northern Development
In Animal Justice v. Minister of Northern Development (Div Court, 2023) the Divisional Court heard a judicial review of what animal advocates viewed as improper FWCA authorizations by the Minister of Natural Resources of winter bounty hunt of coyotes in 2021 and 2022. Section 11(1)(b) of the Fish and Wildlife Act provides that "a person shall not ... hire, employ or induce another person to hunt (SS: of wildlife) for gain" "(e)xcept with the authorization of the Minister", which must be in writing [FWCA 65]. No such written authorization existed. Relying on ambiguous verbal communications with Ministry staffers before the hunt, the applicants treated these as 'authorizations', but court disagreed:[1] Coyotes in Ontario may only be hunted with a licence. There is no “closed” season for coyotes in most of Southern Ontario. Nor are there limits on the number that may be killed in these areas. The provincial government has no sustainability concerns about the coyote population in Southern Ontario.
[2] However, there is a statutory mechanism mandating authorisation before anyone is permitted to hunt for wildlife with the expectation of gain.
[3] The implementation of this mechanism in relation to two coyote hunting contests forms the subject matter of this application for judicial review.
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[14] The applicants seek judicial review of what they argue is the respondent’s decision to allow unlawful coyote hunting contests to proceed without written authorisation, in contravention of the FWCA.
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[23] The applicants claim that the respondent’s actions in 2021 and 2022 amounted to an authorisation. Since no written authorisation was provided, the respondent’s decision was unlawful and accordingly subject to review.
[24] The respondent seeks dismissal of the application arguing that the Minister did not grant permission for the contest to take place. The respondent submits that the applicants’ complaint is, in reality, one that constitutes an attack on the decision by the respondent’s Enforcement Branch not to prosecute the Store for proceeding without authorisation. This, says the respondent, is a discretionary decision immune from review absent a showing of bad faith.
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[27] The Store may well have acted in violation of the FWCA. However, the question of whether the Store acted unlawfully is not one for this court to decide: the applicant’s application is for the judicial review of the respondent’s conduct.
[28] For the following reasons, I find that that the respondent did not authorise either contest.
[29] The exchange between CO Baillie and Chesher took place in an advisory context. CO Baillie was telling the Store that the contest it proposed ran afoul of s. 11. That is not to say the contest could not take place: what was necessary was that the Store had to apply for the required written authorisation which the respondent could provide at its discretion.
[30] As noted, the Store informed CO Baillie that it would make the necessary modifications to ensure compliance with s. 11. Contrary to the applicants’ claims, there is no evidence that when the Store expressed its intention to add other weight prizes, CO Baillie advised that this would be permissible or immune from prosecution.
[31] The purpose of requiring a written authorisation (as set out in s. 65) under s.11 is to ensure the avoidance of disputes regarding the validity of a contest if its legitimacy is questioned. Neither section imposes an obligation on the Minister to act in any particular fashion. The obligation to secure written authorisations lies with the Store.
[32] Even if the conversation between CO Baillie and Chesher could be construed as an informal granting of permission to run the contest, it was the Store’s obligation to seek and obtain authorisation before doing so.
[33] There could be no “implied permission”. There could be no prospective authorisation. The required statutory mandate could not be granted by a lack of prosecution or enforcement. Nor could any “non” decision be “rolled over” to approve the 2022 contest.
[34] In other words, there was no conduct on the part of the respondent that constitutes a violation of the FWCA.
[35] What happened here was that the Store proceeded with its contests without written authorisations and accordingly, it became the party in potential violation of the FWCA, not the respondent.
[36] It was then for the Branch to decide whether it would prosecute the Store for violating the FWCA. It chose not to do so.
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[42] In Canadian Horse Defence Coalition v. Canada (Food Inspection Agency), 2019 FC 1559, the applicants applied for judicial review of the practices of the Canadian Food Inspection Agency concerning the live shipment of horses by air to Japan for slaughter. The applicants also sought mandamus to compel the Agency to apply two specific regulations relating to the transportation of horses by air. The court refused the application, finding there was no public duty to act in a set or particular manner. The court concluded that the Agency had discretion to choose how to enforce animal welfare statutes.
[43] The applicants seek to distinguish these cases, relying on Distribution Canada Inc. v. Minister of National Revenue, 1993 CanLII 2923 (FCA), [1993] 2 F.C. 26 (CA), to argue that the respondent turned its back on its duties and gave “the green light for an unlawful hunting contest to proceed”.
[44] I disagree. I have already indicated that there is no evidence that any such permission was granted or that it could be so.
[45] I would also add that this was not a case where the Branch sat back and did nothing. It took steps to investigate, but determined there were difficulties in launching a viable prosecution whilst also doubting its necessity.
[46] The Branch exercised its discretion to take no further action. In this regard, the following comments, at para. 30 of the Distribution Canada case, undermine the applicants’ position:This is not a case where the Minister has turned his back on his duties, or where negligence or bad faith has been demonstrated. It is a case where the Minister has established difficulties in implementation and where he enjoys a discretion with which the law will not interfere. [47] The same applies to the case at hand.
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