Compliance and enforcement policy for wildlife legislation: chapter 8

Responses to Violations

Officers will review suspected or alleged violations. If it can be determined that there has been no violation or that there is insufficient evidence to warrant further investigation, the officers will take no additional enforcement action. If they can substantiate that a violation took place, they have a legal obligation to enforce the law and use their discretionary power to choose the most appropriate response from those reviewed here.

The illegal trade in wildlife and wildlife products is big business both in Canada and around the world. In some circumstances, it is having a devastating effect on wildlife populations.

Criteria for Responses to Violations

Before deciding on how to respond to violations, enforcement officers will consider factors such as:

The nature of the violation

This includes how endangered the species is and the degree of harm or potential harm to Canadian ecosystems. Officers will also consider the intent of the alleged violator and whether the violator attempts to conceal information or otherwise thwart the objectives and requirements of the legislation.

How best to achieve the desired results

The officer's objective is to achieve compliance with the legislation within the shortest possible time and with no recurrence of violation. Factors to be considered include the alleged violator's history of convictions, the violator's willingness to cooperate with enforcement officers, proof that the violator has taken corrective action, and evidence of enforcement actions relating to the same illegal activity but brought under other statutes by other federal or provincial authorities.

Consistency in enforcement

Enforcement officers want to be consistent when deciding what action to take. Accordingly, they will consider precedent cases.

Responses to Violation

Violations are dealt with in the following ways:

No Action

Occasionally, officers will obtain evidence of an infraction but will be unable to locate the offender or to determine who committed the offence. In these cases, no action will be taken other than documenting the case and providing for the care and custody of evidence of a violation and its disposition in conformity with the existing acts and regulations.

Warnings

Enforcement officers may give warnings when they have reasonable grounds to believe that a violation of the legislation has occurred or is continuing, and when they believe that the warning will stop the illegal activity.

Enforcement officers can issue warnings verbally or in writing. Verbal warnings may be followed by written warnings.

Directives by officers

In some situations, officers may direct that wildlife be removed from Canada when:

• they have reasonable grounds to believe that the wildlife was imported in contravention of the legislation; and
• there is an immediate risk that the wildlife could escape, be moved or be introduced into Canadian ecosystems.

An officer may direct the company or person who owns, manages, or controls the wildlife (or owned, managed, or controlled it at the time) to remove it from Canada. In a written notice for removal, the officer may stipulate a time limit for the removal and describe other terms and conditions considered necessary to safeguard Canadian ecosystems and the wildlife in question. If violators fail to comply with the directive, officers may seize the wildlife and prosecute the individual or company.

Ticketing

When applicable, tickets may be issued for offences that pose no serious or continuing threat to Canadian ecosystems or to the survival of the species involved. Offences that could be ticketed include:

• failure to comply with terms and conditions of permits;
• failure to maintain records as required by regulation; and
• failure to comply with conditions concerning the use of a site or the carrying out of an activity.

Ticketable offences are described in the Contravention Act.

Seizure

When officers have reasonable grounds to believe that an activity concerning wildlife is in contravention of an Act, they may seize the specimen and any item that may have been used to commit the offence. They will deliver the seized articles (or a report on their seizure) to a justice of the peace, who may decide that the articles must be forfeited to the Crown. If the accused is being prosecuted, the request for forfeiture may be delayed until court proceedings have ended.

An officer may choose to detain or seize items for reasons such as:

• to prevent the import, export, or interprovincial transport of wildlife, wildlife parts or products that were obtained or exported contrary to provincial conservation laws, the conservation laws of another country, or international agreements, or is considered potentially harmful to Canadian ecosystems;
• to prevent possession of wildlife, wildlife parts or products that were taken, traded, transported, sold or distributed in violation of the legislation for which EC is responsible;
• to prevent purchase, sale, or possession of any migratory bird, part or product, when the capturing, killing or taking is prohibited by the legislation for which EC is responsible;
• to prevent hunting, killing, trapping, taking or capturing of a species or type of wildlife beyond the specific terms and conditions of a permit, wildlife certificate or licence; and
• to prevent the loss or destruction of evidence.

To ensure the well-being of a detained or seized live wildlife specimen, officers may move the specimen to a location where it will be secure and well cared for. They may also seize any item that they believe was used in the committing of an offence.

Prosecutions

EC will recommend prosecution when evidence indicates that the nature of a violation is serious enough to warrant such an action. Prosecution may be recommended when:

• there is or has been serious damage to a Canadian ecosystem or species;
• the actions of the accused are or have been detrimental to the survival of the species or the management of the site involved;
• the accused knowingly committed an offence or provided false or misleading information, pretending to comply with an Act; or
• the accused obstructed an officer in carrying out duties or responsibilities under legislation.

Canadians must be assured that poachers will be prosecuted.

However, policy and supervisory guidance does not reduce nor negate the officer's discretion as to whether or not to lay a charge. Such decisions are taken on a case by case basis and include consideration of criteria described earlier under Response to Violations.

Penalties upon conviction

Once an offender has been convicted, enforcement officers will, on behalf of the Minister of the Environment, recommend that Crown prosecutors request penalties proportionate to the nature and gravity of the offence. The legislation provides for fines or imprisonment, or both.

When making their recommendations, officers may apply criteria such as:

• the nature of the violations;
• the effectiveness of the recommended penalty in achieving the desired result (namely, compliance with the legislation and no more violations);
• the deterrent effect of the recommended penalty on others, thus ensuring general compliance with the statute;
• precedent cases; and
• Canadian jurisprudence.