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Wild Animal Law of Canada
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Fish and Wildlife Conservation Act (Ontario)(current to 15 September 2016)Note Re Application of the Fish and Wildlife Conservation Act ('FWCA')
Ontario's Fish and Wildlife Conservation Act ('FWCA') applies to 'wildlife', which are defined as "an animal that belongs to a species that is wild by nature, and includes game wildlife and specially protected wildlife" [FWCA 1(1)]. These latter terms, and numerous others that are used in the FWCA, are defined in s.1(b) ['Key Terms'] below. For this purpose, 'animal' means "Mammalia (mammals), Aves (birds), Reptilia (reptiles) or Amphibia (amphibians)".
The FWCA has minimal application to fish (primarily licensing of recreational and commercial fishing), and for that purpose are referred to separately as 'fish'.
The FWCA does not apply to 'farmed animals', which are defined as "“white-tailed deer, American elk, fisher, fox, lynx, marten, mink, raccoon ... that is being kept in captivity in Ontario for the purpose of commercial propagation or the commercial production of meat, hides, pelts, antler products or other products" [FWCA 1(1),3].
The FWCA does not apply to "animals that are being kept in captivity in a research facility that is registered under the Animals for Research Act" (see that module) [FWCA 4].
Where the FWCA and the Endangered Species Act ('ESA') (see that module) conflict with respect to an animal, invertebrate or fish, the provision that gives the animal, invertebrate or fish the most protection prevails [FWCA 2].
This law bears on the wildlife issues of:- PROTECTION
- OWNERSHIP AND POSSESSION
- SALE
- FACILITIES
- ADMINISTRATIVE
- IMPORT/EXPORT
- TRANSPORTATION
- HABITAT
- HUNTING, TRAPPING AND FISHING
- CIVIL LIABILITY
- MUNICIPAL
Note re the Invasive Species Act:
Ontario's Invasive Species Act ('ISA') is due to come in force 03 November 2016, only seven weeks after the cut-off date for this treatment of Ontario law (15 September 2016). A quick review of it shows that it will bear significantly on the law of wild animals in Ontario, and should be reviewed by anyone considering the issue in depth, particularly on the issues of import & export and extermination: Invasive Species Act (and Regulations when issued).
Note re the Heritage Hunting and Fishing Act:
The Heritage Hunting and Fishing Act ('HHFA') is similar almost identical to several other provincial statutes in that it affirms that "(a) person has a right to hunt and fish in accordance with the law" [HHFA 1]. This is legally meaningless, and the Act is really a sop to hunting interests who fear the progress of animal rights activists against practices that amount primarily to the recreational killing of wild animals, a phenomenon of dubious historical heritage to start with. The full current text of the Fish and Wildlife Conservation Act and it's Regulations may be viewed at the Ontario statute website.
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Table of Contents
1. Overview
(a) General
(b) Key Terms
2. Possession
(a) Licensing and Exemptions
(b) Prohibition on Possession Where Illegally-Taken outside of Ontario
(c) Reptile and Amphibian Licenses
(d) Falconry Licenses
(e) Zoos
3. Wildlife Rehabilitation
4. Wildlife Protections and Prohibitions (Non-Hunting)
5. Hunting, Trapping and Fishing
(a) General
(b) Where Hunting and Trapping Licenses Required and Not Required
(c) Hunting and Trapping Prohibitions and Provisions
(d) Trapping
(e) Fishing
(f) Captive Hunting and Fishing
6. Sale and Breeding of Wildlife
(a) General
(b) Sale
(c) Breeding
7. Import, Export and Relocation
(a) Import
(b) Export
(c) Release and Escape
8. Transportation
9. Civil Liability
10. Enforcement ______________________________________
1. Overview
(a) General
While labelled a conservation statute, the Fish and Wildlife Conservation Act ('FWCA') is really Ontario's hunting, trapping and fishing-regulation statute, akin to similar statutes in other provinces. As with all of them, the primary regulatory method used is that of licensing, where the activity to be regulated is first declared illegal, subject only to an exception where an appropriate license (or permit, authorization, etc) is held [FWCA 60].
(b) Key Terms
Essential to understanding and using the FWCA are the following terms and categories [FWCA 1(1)]:- 'animal' means "a member of the class Mammalia (mammals), Aves (birds), Reptilia (reptiles) or Amphibia (amphibians), but does not include a human being";
- 'big game' means "black bear, woodland caribou, white-tailed deer, American elk or moose";
- 'domestic animal' means "an animal that belongs to a species that is not wild by nature";
- 'farmed animal' means a white-tailed deer, American elk, fisher, fox, lynx, marten, mink, or raccoon that is being kept in captivity in Ontario for the purpose of commercial propagation or the commercial production of meat, hides, pelts, antler products or other products";
- 'furbearing mammal' means a member of a species set out in Schedule 1 and also wolverine and polar bear [Wildlife Schedules Reg ('WS Regs')];
- 'game amphibian' means a member of a species set out in Schedule 5;
- 'game bird' means a member of a species set out in Schedule 3;
- 'game mammal' means a member of a species set out in Schedule 2;
- “game reptile” means a member of a species set out in Schedule 4;
- 'game wildlife' means a furbearing mammal, game amphibian, game bird, game mammal or game reptile;
- 'specially protected amphibian' means a member of a species set out in Schedule 10;
- 'specially protected bird' means a specially protected raptor or a member of a species set out in Schedule 8;
- 'specially protected invertebrate' means a member of a species set out in Schedule 11;
- 'specially protected mammal” means a member of a species set out in Schedule 6;
- 'specially protected raptor” means a member of a species set out in Schedule 7;
- 'specially protected reptile' means a member of a species set out in Schedule 9;
- 'specially protected wildlife' means a specially protected amphibian, specially protected bird, specially protected invertebrate, specially protected mammal or specially protected reptile.
Offspring that result from "the natural or artificial breeding of an animal or invertebrate, including a farmed animal, shall be deemed to belong to the species or subspecies of the parent that receives the most protection under this Act" [FWCA 1(5)], and "an animal or invertebrate that is not easily distinguishable from an animal or invertebrate to which this Act applies shall be deemed, in the absence of evidence to the contrary, to belong to the same species as the animal or invertebrate to which this Act applies" [FWCA 6(a)].
2. Possession
(a) Licensing and Exemptions
Possessing "live game wildlife or live specially protected wildlife in captivity" requires a license [FWCA 40(1)], although no licenses are required for [FWCA 40(2)]:- keeping "game amphibians or game reptiles in captivity for the purpose of personal consumption";
- keeping, "for the purposes of personal education a single game reptile, game amphibian, specially protected mammal, specially protected reptile, specially protected amphibian or specially protected invertebrate, unless it is a species at risk under the Endangered Species Act (see that module) or the federal Species at Risk Act (see that module);
- keeping, by a wildlife custodian, of "injured, sick or immature game wildlife or specially protected wildlife in captivity for the purpose of rehabilitating or caring for them";
- the keeping of "injured, sick or immature wildlife in captivity" for (1) 24 hours for the purpose of transferring it to a veterinarian or wildlife custodian for rehabilitation or care, or (2) treatment by a veterinarian [WIC Reg 44].
(b) Prohibition on Possession Where Illegally-Taken outside of Ontario
Possession in Ontario of wildlife, invertebrates or fish "killed, captured, taken, possessed, transported, bought or sold" in violation of the laws of another jurisdiction is prohibited [FWCA 58].
(c) Reptile and Amphibian Licenses
A "live game reptile, a live specially protected reptile, a live game amphibian or a live specially protected amphibian" may be kept in captivity or bred without a license unless it is a species at risk listed under Ontario's Endangered Species Act ('ESA') (see that module) [WIC Reg 8(1)]. Keepers of such animals are required to maintain a log book "that contains information respecting the buying, selling, acquisition, disposition, birth and death of the specimens kept" [WIC Regs 8(2)].
(d) Falconry Licenses
Falconry birds may be kept in captivity [WIC Regs 11], bought and sold [WIC Regs 24] and bred [WIC Regs 26] - all under appropriate license. However specially-protected raptors taken from the wild may not be bought, sold or transferred [WIC Regs 25].
For FWCA purposes 'falconry birds' mean "Peregrine Falcon, Northern Goshawk, Gyrfalcon, Cooper’s Hawk, Red-tailed Hawk, Sharp-shinned Hawk, Merlin, American Kestrel, Bald Eagle, Great Horned Owl, Northern Hawk Owl, Golden Eagle, Broad-winged Hawk, Red-shouldered Hawk, Snowy Owl and Northern Harrier".
'Non-indigenous falconry birds' means "Prairie Falcon, Saker Falcon, Lanner Falcon, Laggar Falcon, Harris’ Hawk, Ferruginous Hawk, Swainson’s Hawk, Bonelli’s Eagle, European Kestrel, European Sparrow-hawk, Tawny Eagle and Steppe Eagle" [WIC Regs 10].
(e) Zoos
For purposes of the FWCA, a 'zoo' means "a place where game wildlife or specially protected wildlife is kept in captivity for display to the public and for conservation, educational or scientific purposes" [Wildlife in Captivity Regulation ('WIC Regs') 1(1)]. Zoos must be licensed, and if they are then they may keep, buy or sell "game wildlife and specially protected wildlife" [WIC Regs 3(1)]. Buying and selling may only be done with a seller or buyer lawfully entitled to do so [WIC Regs 3(2)].
Owners and operators of zoos are required to maintain a log book "that contains information respecting the buying, selling, acquisition, disposition, birth and death of the specimens of game wildlife or specially protected wildlife kept in the zoo" [WIC Regs 5].
3. Wildlife Rehabilitation
With Ministerial authorization, wildlife custodians may "keep injured, sick or immature game wildlife or specially protected wildlife in captivity for the purpose of rehabilitating or caring for them" [FWCA 44(2)]. Wildlife custodians may authanize "injured, sick or immature game wildlife or specially protected wildlife" that in their opinion, will not be capable of being released into the wild after appropriate care" [FWCA 44(4)].
4. Wildlife Protections and Prohibitions (Non-Hunting)
The following provisions apply to wildlife outside of the context of hunting, trapping and fishing:- it is prohibited, without Ministerial authorization, to "destroy, take or possess the nest or eggs of a bird that belongs to" a wild animal or bird, except with respect to American crow, brown-headed cowbird, common grackle, house sparrow, red-winged blackbird or starling [FWCA 7] [note that separate protections apply to migratory birds, see the federal MBCA module];
- it is prohibited, without Ministerial authorization, to "interfere with a black bear in its den or intentionally damage or destroy a black bear’s den" [FWCA 8(1,5)];
- it is prohibited to, without a furbearing mammal trapping license or Ministerial authorization, to "intentionally damage or destroy the den or habitual dwelling of a furbearing mammal" [FWCA 8(2,5)];
- it is prohibited to, without a furbearing mammal trapping license or Ministerial authorization, to "damage or destroy a beaver dam", except by a person "to protect the person’s property" [FWCA 8(3-5)].
5. Hunting, Trapping and Fishing
(a) General
For purposes of the FWCA, 'hunting' does not include 'trapping' [see (d) below], but it does include [FWCA 1(1)]:- lying in wait for, searching for, being on the trail of, pursuing, chasing or shooting at wildlife, for the purpose of killing, injuring, capturing or harassing it, and
- "capturing or harassing wildlife".
The 'open seasons' for various animals are set out in the Open Seasons - Wildlife Regulation. Full details regarding hunting and trapping licensing for various species are set out in the Hunting Regulation.
(b) Where Hunting and Trapping Licenses Required and Not Required
These provisions set out when licenses are, and are not, required:- licenses are required to hunt or trap all game mammals, game birds, furbearing mammals, game reptiles, game amphibians, 'other huntable birds', any other wildlife which are not specially-protected wildlife and are not 'wild non-game birds' [FWCA 6(1)];
- holders of licenses to trap fur-bearing mammals may, under that license alone, the following wildlife, during any portion of the open season for that species that falls between 01 September and 30 June of two subsequent years [FWCA 6(2)]:
- hunt or trap black bear and other game mammals, other than white-tailed deer, moose, woodland caribou or American elk;
- hunt game birds, other than wild turkey;
- hunt 'other huntable birds' (see bullet above);
- hunt any other wildlife which are not specially-protected wildlife and are not wild non-game birds.
- farmers and co-resident members of their family may, on the farmer's land, do the following without license [FWCA 6(3)]:
- hunt or trap furbearing mammals;
- hunt or trap game mammals, other than big game;
- hunt game birds, other than wild turkey;
- hunt or trap game reptiles or game amphibians;
- hunt 'other huntable birds';
- hunt any other wildlife which are not specially-protected wildlife and are not wild non-game birds.
(c) Hunting and Trapping Prohibitions and Provisions
The following prohibitions and provisions apply to hunting, trapping and fishing:- it is prohibited to hunt or trap any 'specially protected' wildlife [see the links at s.1(b) above] [FWCA 5(1,2)];
- it is prohibited to hunt any bird that is wild by nature (ie. not domesticated or farmed) other than (1) a game bird [game birds are listed at Schedule 3, which is also linked above] [FWCA 5(1,2)], and (2) the following (call these 'other huntable birds'):
- American crows, brown-headed cowbirds, common grackles, house sparrows, red-winged blackbirds and starlings;
- migratory game birds as declared under the Migratory Birds Convention Act (see the MBCA module);
- any bird that is either imported into Ontario or propagated from such imported stock, and that is then released in Ontario with Ministerial authorization, other than a specially protected bird;
- any bird that is hunted in Ontario with Ministerial authorization.
- it is prohibited to hunt, trap or possess wildlife in a provincial park or a Crown game preserve [FWCA 9(1)];
- it is prohibited to possess "a firearm, trap, other hunting or trapping device, or explosive" in a provincial park or a Crown game preserve [FWCA 9(2)];
- being engaged in licensed hunting or trapping does not give the license-holder any special exemption regarding trespass law with respect to private property [FWCA 10(1)];
- no one shall enter Crown land "used for the purpose of retaining wildlife or fish, propagating wildlife or culturing fish without the express permission of the Crown" [FWVA 10(6)];
- it is prohibited, without Ministerial authorization, to hunt or trap for hire, to hire someone to hunt or trap for hire, or to "pay or accept a bounty" [FWCA 11], except:
- for guiding and providing 'black bear hunting services';
- hunting or trapping fur-bearing mammals or black bear under a trapping license.
- possession of wildlife killed, injured or captured in violation of the FWCA is prohibited [FWCA 12];
- obstruction of lawful hunting, trapping or fishing by any of the following methods is prohibited [FWCA 13(1)]:
- "tampering with traps, nets, bait, firearms or any other thing used for hunting, trapping or fishing";
- placing oneself "in a position, for the purpose of interfering, that hinders or prevents hunting, trapping or fishing"; or
- "engaging in an activity, for the purpose of interfering, that disturbs or is likely to disturb wildlife or fish".
- giving notice (eg. posting) prohibiting hunting or fishing, where the person so doing has no authority to do so, is prohibited [FWCA 13(2)];
- hunting with set guns ("a firearm ... designed to permit the firearm to discharge when it is not being physically held by the person") is prohibited [FWCA 18];
- shotguns used in hunting may not be capable of holding more than three shells at a time, including in the chamber [FWCA 19];
- night-hunting (between half hour after sunset and half hour before sunrise) is prohibited [FWCA 20(1)(a)];
- jack-lighting is prohibited [FWCA 20(1)(c)];
- killing, capturing or injuring big game or game birds by means of a trap, baited line or similar device is prohibited, except for trapping of black bear by holders of a fur-bearing mammal trapping license [FWCA 21];
- use of a body-gripping trap to trap wildlife (or domestic animals) is prohibited (with exceptions for farmers on their own property, in prescribed areas in Ontario or where the trap is prescribed as a humane trap) [FWCA 22];
- it is prohibited to hunt big game while it is swimming [FWCA 23];
- it is prohibited to use vehicles or boats "the purpose of killing, injuring, capturing, harassing, pursuing or chasing wildlife", or to use an aircraft while hunting [FWCA 24];
- use of, or accompaniment by, dogs for hunting big game requires that the dog be specifically licensed for this [FWCA 25(1)];
- it is otherwise (except under license, see above) prohibited for the owner or custodian of a dog to allow it to run at large in an area inhabited by big game [FWCA 25(3)]; if found chasing big game during closed season, or at large in open season, such dogs may be killed by a conservation officer [FWCA(4)];
- hunting with a specially-protected raptor or other bird of prey is prohibited except under license [FWCA 27, WIC Regs 21];
- hunting with a ferret is prohibited [FWCA 28];
- using poison to kill, capture of injure wildlife is prohibited [FWCA 29];
- use of adhesives to kill, capture or injure wildlife is prohibited [FWCA 30];
- wildlife (other than moose, woodland caribou, white-tailed deer, american elk) may be harassed for purposes of deterrence, or captured or killed, on land if the land-owner "believes on reasonable grounds that wildlife is damaging or is about to damage the person’s property", and for this purpose [FWCA 31(1,3-7), H Regs 130-133]:
- wildlife must not be caused unnecessary suffering, and harassment must be limited to achieving deterrence only;
- night-hunting and jacklighting are allowed.
- ownership of the bed of a river, lake or navigable body of water does not give the owner the exclusive right to fish in that water [FWCA 38];
- with Ministerial authorization, "a person to capture, kill or possess wildlife for educational or scientific purposes" [FWCA 39];
- hunting or trapping "wildlife or specially protected wildlife for the purpose of keeping it in captivity" is prohibited, without Ministerial authorization [FWCA 40(3)];
- municipalities may under by-law issue licenses for hunting ring-necked pheasants, cottontails, varying hares and European hares during FWCA open seasons for these animals [FWCA 79(1)].
(d) Trapping
'Trapping' means the use of "a body-gripping trap, box trap, cage trap or net" to capture an animal or invertebrate.
Details of licensing of trapping, and extensive technical requirements re traps used, as set out in the Trapping Regulation ('T Regs').
(e) Fishing
In Canada the primary constitution authority over 'inland fisheries' lies with the federal government and is embodied in the federal Fisheries Act (see that module).
As such, the role of the FWCA respecting fishing is primarily limited to licensing of recreational and commercial fishing, and of aquaculture (which are deemed to be domestics for purposes of this module, as set out in the Fish Licensing Regulation ('FL Regs').
The provisions of relevance to wild fish are as follows:- fish stocking in Ontario waters [FL Regs 25-27];
- collection of wild fish for purposes of aquaculture [FL Regs 28];
- transportation of fish for purposes of aquaculture [FL Regs 29];
- buying and selling of fish, frogs and leeches [FL Regs 31-33];
- collecting fish for scientific purposes [FL Regs 34.0.1-34.1];
- transportation of live fish [FL Regs 34.2].
(f) Captive Hunting and Fishing
The hunting of captive farmed animals, game wildlife, specially protected wildlife or any other wildlife is prohibited, except in a game bird hunting preserve [FWCA 41, Hunting Regulation ('H Regs') 93.1]. Ownership or operation of a game bird hunting preserve requires a license [FWCA 33(1)]. For these purposes a 'game bird hunting preserve' means "an area in which game birds propagated under a licence are released for hunting purposes" [FWCA 1(1)].
Ownership or operation of a fishing preserve requires a license [FWCA 34(1)].
6. Sale and Breeding of Wildlife
(a) General
For the following purposes, to "buy or sell" includes to "lease, barter or trade for consideration, offer to buy, sell, lease, barter or trade for consideration, or possess for the purpose of buying, selling, leasing, bartering or trading for consideration" [FWCA 1(1)].
(b) Sale
The buying and selling of wildlife or specially protected wildlife is prohibited except under license or Ministerial authorization [FWCA 48(1,4)]. As well, the sale of "any animal or invertebrate that the person represents as a species of game wildlife or specially protected wildlife" is prohibited without authorization [FWCA 49].
The buying and selling of fish [including live fish: FWCA 1(2)] "that belong to a species that exists in Ontario waters" is prohibited except under license [FWCA 51(1)].
Sale of wildlife or invertebrates imported to Ontario is prohibited if such sale is illegal in the originating jurisdiction [FWCA 58(2)].
A "live game reptile, a live specially protected reptile, a live game amphibian or a live specially protected amphibian" may be bought and sold under a license to that effect, but only from and to seller or buyer lawfully entitled to do so [WIC Regs 6].
(c) Breeding
Propagation of "game wildlife or specially protected wildlife", or possession of same for that purpose, is prohibited except under license or other authorization [FWCA 45].
A "live game reptile, a live specially protected reptile, a live game amphibian or a live specially protected amphibian" may be bred without a license unless it is a species at risk listed under Ontario's Endangered Species Act ('ESA') (see that module) [WIC Reg 8(1)]. Keepers of such animals are required to maintain a log book "that contains information respecting the buying, selling, acquisition, disposition, birth and death of the specimens kept" [WIC Regs 8(2)].
7. Import, Export and Relocation
(a) Import
Importing live game wildlife or specially protected wildlife into Ontario requires a license or permit [FWCA 53, PBSW Regs 30.1].
(b) Export
Export from Ontario of live game wildlife and specially protected wildlife is prohibited without license or permit [FWCA 55(1,3), PBSW Regs 30(1)].
(c) Release and Escape
Release - or allowing the escape of - a farmed animal, or of game wildlife or specially protected wildlife that is kept in captivity, is prohibited without Ministerial authorization [FWCA 46(1,2)]. Where such an animal escapes the keeper must immediately notify the Minister and "shall return the farmed animal or wildlife to captivity or kill it as soon as practicable" [FWCA 46(3)], except where the animal is game wildlife or specially protected wildlife kept in captivity for either purposes of rehabilitation [see s.3 above] or for personal education [see s.2(a) above] [FWCA 46(4)].
Imported wildlife or invertebrates, or the offspring thereof, shall not be released in Ontario without Ministerial authorization [FWCA 54(1,1.1)]. Nor shall they be allowed to escape [FWCA 54(2)], though if they do escape that fact shall be reported to the Minister immediately, and the keeper shall "capture or kill the wildlife or invertebrate as soon as practicable" [FWCA 54(3)].
8. Transportation
It is prohibited to transport live wildlife or fish that was taken in violation of the FWCA or the federal Fisheries Act [FWCA 56].
9. Civil Liability
Ontario is immune from civil liability for damages respecting "any act or omission of a wildlife custodian" [FWCA 44(6)].
10. Enforcement
'Conservation officers' ('COs') may be appointed for purposes of enforcing the FWCA [FWCA 87(1)]. RCMP and provincial police are conservation officers by virtue of those offices [FWCA 87(2)]. COs have typical regulatory enforcement authorities, including those of entry and inspection [FWCA 90(1)], warrant and warrantless searches [FWCA 91.1] and arrest [FWCA 93].
The FWCA also has a broad offence provision to allow for prosecution of violations [FWCA 97(1)].
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