Decision Date:  June 14, 2013

Panel:  Gabriella Lang, James S. Mattison, Reid White

Keywords: Wildlife Act – ss. 6.5, 6.5, 19; Controlled Alien Species Regulation – ss. 3, 5.1; Wildlife Act Permit Regulation – ss. 4(f)(i), 4(h); permit; public display; controlled alien species; prohibited species; Burmese Python; policy

Jozef and Bibiana Demcak appealed a decision of the Director of Wildlife (the “Director”), Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”), denying their application for an amendment to their controlled alien species (“CAS”) possession permit (the “Permit”).

For many years, the Appellants owned and publicly displayed various reptiles, including Burmese pythons and a Black-throated monitor lizard. They displayed live and dead reptiles in public venues such as schools, community centers and church halls. They also used live reptiles in travelling magic shows they conducted in BC, Alberta and Saskatchewan. The Appellants earned an income from their magic shows.

In 2009, certain species were designated as “controlled alien species” under the Controlled Alien Species Regulation (the “CAS Regulation”), a new regulation created pursuant to sections 6.4 and 6.5 of the Wildlife Act (the “Act”). The designated CAS included Burmese pythons and all species of monitor lizards that can grow to more than 2 metres in length. The CAS Regulation also designated live Burmese pythons and monitor lizards that can grow to more than 2 metres in length as “prohibited species individuals”. Section 3 of the CAS Regulation prohibits a person from possessing a prohibited species individual unless the person holds a permit to do so. In addition, section 5.1 of the CAS Regulation prohibits transporting a prohibited species in BC unless the person holds a permit to do so.

Under section 19 of the Act and section 4(f)(i) of the Wildlife Act Permit Regulation (the “Permit Regulation”), the Director may issue a permit authorizing a person to possess a CAS individual, if the CAS individual was in BC on March 16, 2009. Similarly, under section 4(h) of the Permit Regulation, the Director may issue a permit authorizing a person to ship or transport a CAS individual in BC. Section 4 states that the Director may issue such permits “on the terms and for the period he or she specifies.”

In May 2010, the Director issued a CAS Permit (the “Permit”) to Mr. Demcak. The Permit authorized the Appellants to possess the CAS listed in the Permit; namely, six Burmese pythons and one Black-throated monitor lizard. The Permit authorized the Appellants to transport their CAS only for the purpose of receiving veterinary care. The Permit prohibited the Appellants from displaying the CAS for public viewing. The Appellants objected to the restrictions in the Permit, and they initiated proceedings in the BC Supreme Court, but those proceedings were later dismissed, because the Appellants should have been notified that the Permit could have been appealed to the Board.

Meanwhile, in April 2011, the Ministry approved a policy with respect to CAS (the “CAS Policy”), as well as a procedure with respect to CAS (the “CAS Procedure”). The CAS Policy and the CAS Procedure indicate that the Ministry’s policy with respect to permits for CAS is generally to prohibit the public display of prohibited species individuals, except by organizations that meet certain criteria.

In December 2011, after the BC Supreme Court proceedings were dismissed, the Appellants applied for a Permit amendment. They requested removal of the prohibition on publicly displaying their CAS, and removal of the restriction on transporting their CAS. They also requested that the Black-throated monitor lizard be removed from the list of prohibited species in the CAS Regulation.

In March 2012, the Director issued his decision not to amend the Permit. However, the Director’s decision indicated that he was willing to remove the restriction on transporting the CAS so the Appellants could display their CAS outside of BC, if the Appellants provided photographs to allow the identification of their CAS individuals.

The Appellants appealed the Director’s decision on several grounds, and they requested several remedies. Some of those remedies were beyond the Board’s jurisdiction, and others were granted by the Director after the appeal was heard, but before the Board released its decision on the appeal. Specifically, the Director removed the Black-throated monitor lizard from the list of CAS in the Permit, consistent with an amendment of the CAS Regulation. The Director also authorized the Appellants to transport their CAS for the purpose of leaving and returning to BC, so the Appellants to conduct public displays and magic shows involving their CAS outside of BC. As for the remaining remedies that were within the Board’s jurisdiction, the Appellants requested that the Board remove the Permit condition prohibiting the Appellants from publicly displaying their CAS in BC, and order the Director to pay the appellants’ costs associated with the appeal. The Appellants also requested certain remedies in relation to the Director’s alleged breach of the Appellants’ rights under the Charter of Rights and Freedoms.

The Board found that section 19 of the Act and section 4 of the Permit Regulation indicate that, in issuing a permit, the Director has broad discretion to impose conditions that are consistent with the objectives of the legislation, and that the Director determines to be appropriate in the circumstances. Neither the Act nor the applicable regulations expressly prohibit the public display of CAS. However, section 6.4 of the Act states that a species may be designated as a CAS if the minister considers that a non-native species “poses a risk to the health or safety of any person or poses a risk to property, wildlife or wildlife habitat”. The Board held, therefore, that the designation of a species as a CAS depends on a consideration of the risk the species poses to human health and safety, as well as to property and wildlife or wildlife habitat. Consequently, the Board found that protecting human health and safety is one of the objectives of section 6.4 of the Act, and that the need to protect human health and safety is a relevant consideration when reviewing CAS permit applications and determining appropriate conditions for CAS permits.

Turning to the Director’s decision, the Board found that the Director failed to provide adequate reasons for denying the Appellants’ request for an amendment. In his decision, the Director referred to the CAS Policy but did not explain how he applied it to the Appellants’ circumstances, and did not explain what aspects of the Appellants’ public display of their CAS raised concerns about human safety or health. Also, neither the Permit nor the Director’s decision explained what was meant by no “public display.” However, at the appeal hearing, the Director explained in detail his reasons for denying the amendment. Based on the evidence presented at the hearing, the Board found that the Director did consider the Appellants’ specific circumstances, and that his reasons for denying the amendment were based primarily on concerns about public safety. Also, the Director’s testimony established that he did not fetter his discretion in applying the CAS Policy and CAS Procedure to assist in his evaluation of the Appellants’ application.

Further, the Board found that any errors in the Director’s decision-making process were remedied by the appeal hearing before the Board, which was conducted as a new hearing of the matter. Based on the evidence, the Board held that there were valid reasons to deny the Appellants’ request for authorization to publicly display their CAS. The evidence presented by the Appellants at the appeal hearing failed to address some critical public safety considerations regarding publicly displaying their CAS. For example, the Appellants had no specific plans that addressed the public safety risks, or foreseeable potential emergency situations such as a CAS escape, that could arise in the public venues they would be using. Further, the Appellants did not demonstrate adequate control of their python when displaying it to the public in the past, and there was ample evidence that Burmese pythons that are as large as the ones owned by the Appellants are potentially dangerous and have the capacity to injure and kill humans, even if such incidents are rare.

Next, the Board considered whether the Director’s decision infringed the Appellants’ rights under the Charter of Rights and Freedoms. The Board found that the restriction on publicly displaying the CAS in BC did not amount to a complete prohibition on the Appellants’ ability to conduct their public shows and earn their livelihood, because they could still conduct those activities in BC using their dead and non-CAS reptiles, and they could still publicly display their live CAS reptiles outside of BC. Further, there was no evidence that the Director discriminated against the Appellants.

Finally, the Board found that there were no special circumstances that warranted ordering the Director to pay the Appellants’ appeal costs.

Accordingly, the appeal was dismissed, and the application for costs was denied.