Simon's Megalomaniacal Legal Resources

Wild Animal Law of Canada

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Introduction and Common Law

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Table of Contents
1. Overview
2. 'Scienter' and the Domestic/Wild Animal Distinction
(a) Overview
(b) Examples of 'Scienter' in the Case Law
(c) Statutory Modification of Scienter
3. Ownership and Possession
4. So What is a 'Wild Animal'?

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1. Overview

'Common law' is distinct from statutory law. Statutory law (ie. Acts of the federal Parliament or provincial legislatures) are the well-organized set-pieces of law passed by elected MPs, MPPs and MLAs when they eventually get around to addressing a particular legal subject. Familiar examples might be the Residential Tenancies Act or the Consumer Protection Act.

The common law, on the other hand, is that disorganized conglomeration of legal principles embedded in past judicial decisions, typically about subjects that the legislatures consciously leave the courts to develop on their own (egs. contract and tort law). The only ones consolidating the common law into some semblance of coherence are legal authors, and - to a lesser extent - subsequent judges commenting on and developing the common law in later judgments.

Canadian law respecting wild animals is overwhelmingly statutory. Across all Canadian jurisdictions (ie. all ten provinces and the federal government), there are well over 250 statutes and regulations (regulations are made under statutes) that bear on wild animals - sometimes a little and sometimes a lot. That's why I used the 'chart' approach to locating and summarizing that law into bite-size, statute-by-statute modules, since typically each statute is self-contained and requires consideration of it's law in the context of the rest of the statute.


2. 'Scienter' and the Domestic/Wild Animal Distinction

(a) Overview

The 'modern' common law respecting wild animals, and in fact most animals, arose in the context of civil liability (negligence) and can be summarized in the single word: 'scienter'. 'Scienter', loosely translated as 'guilty knowledge', means that the owner or custodian (hereafter 'owner') of a domestic animal will not be held liable for injury or damage it causes unless they knew that the particular animal has a pre-existing propensity to being vicious, dangerous, mischievous or otherwise likely to cause harm.

Wild animals, on the other hand, are essentially presumed to be dangerous, etc and no proof of the owner's knowledge of specific-animal risk need be made to find them liable for the damage. The case law is replete with mentions of bears, lions and tigers as examples of dangerous wild animals where the requirement of scienter need not apply. So essentially, the common law's distinction between wild and domestic animals arose from the need to determine if scienter was required before liability was found.

It is important to realize however that just because the distinction arose in the context of negligence law, does not mean that the distinction has no further current relevance. Statutory development of the law of animals has broadly relied on the wild/domestic distinction to impose differential regulation on domestic (typically, farm and pet animals) versus wild (indigenous animals living in a state of nature). This has occured to such a great extent that, other than hybrids and animals which are in the process of switching between these categories - ie. domestics going wild (ferals) or wildlife in captivity - it is hard to imagine any animal that is not taxonomically located within, or at least in relation to, these primary categories (other than humans). Even beyond the common law, the law's heavy use of the terms 'wild animal' and 'domestic animal' are inextricably intertwined, even to the point that can usually be said to mutually define each other.

Note: McLean v Thompson et al (BC Prov Ct, 2009), where a hybrid dog/wolf bit a human, gave rise to interesting consideration of whether scienter applied (it didn't, as the court found the animal to be wild).

(b) Examples of 'Scienter' in the Case Law

The common law has used the latin term "ferae naturae" to refer to wild animals, and the term "mansuetae naturae" (also "domitae naturae") to refer to domestics. Following are some typical judicial statements on scienter and the distinction between wild and domestic animals:

• Cowles v. Balac (Ont Superior Ct, 2005)

  [129] The views of Professor Fridman do not, in this area, in my view differ from those of Professor Fleming. In his text, Fridman, G.H.L. The Law of Torts in Canada 2nd edition Carswell), Fridman notes .... at page 254-255:

  3. The Scienter Doctrine
  
  (a) Common Law
  
  (i) The Doctrine Stated
  
  Where harm is caused by the behaviour of an animal, whether on the property of the defendant or elsewhere, this kind of liability depends upon the type of animal concerned. The law distinguishes between the wild animals, i.e., animals ferae naturae, and tame or domestic animals, i.e., animals mansuetae naturae or domitae naturae. For damage resulting from the act of a wild animal, the defendant is strictly liable, without proof of negligence or other wrongful conduct, and without the necessity of proving that the defendant was aware of the dangerous character of the particular animal that caused the harm, or of the class of animals to which it belonged. If the animal is mansuetae naturae, that is, one which ordinarily did not cause the kind of harm that is involved, the common law requires that the particular animal concerned have the dangerous or mischievous propensity to commit the harm or damage that it inflicted, and that the defendant knew of such propensity or characteristic of the individual animal. To keep such an animal with knowledge of its potential for causing harm is not in itself negligence, or indeed wrongful in any other way (any more than to keep a wild animal is per se unlawful or negligent). Indeed, despite some judicial discussion that appears to introduce elements of negligence into liability for animals, at common law there is no need to prove negligence in the way in which the animal in question was controlled or kept in order to establish liability, as long as the requisite elements of dangerous propensity or character and knowledge are present. Nor will negligence in controlling the animal, so that it is able to escape from the property of the defendant and cause harm, entail liability under the scienter doctrine in the absence of knowledge of the dangerous propensity, or if the animal is not normally dangerous. There might be liability based on negligence if other ingredients of such liability, such as a duty of care, exist, as frequently occurs where dogs or cattle escape onto the highway, or get out of control while on the highway, with consequent damage to other road users or adjoining landowners. Such liability, if it arises, is not strict as is the situation where the scienter doctrine is applicable: it will depend upon the resolution of the issues of duty, remoteness and causation that are an integral part of the law of negligence.
  
  The underlying rationale for the strict liability of the scienter doctrine is that anyone who maintains an animal that is known to be dangerous to humans or other animals or in any other way does so at his peril. He has created a dangerous, or potentially dangerous situation involving risk to others. In the case of the wild animals, such knowledge is irrebutably presumed by the law. Domestic animals are not normally harmful. Therefore, knowledge of the vicious nature of the particular animal must be established. In the days when pleadings in the common law courts were written in Latin, the allegation of the plaintiff was that the defendant knowingly kept (scienter retinuit) a dangerous animal which caused harm to the plaintiff. Hence arose the appellation of this kind of liability.

• Janota-Bzowska v. Lewis (BCCA, 1997)

  Generally, dangerous animals can be classified in two categories: there are those which are inherently dangerous and those that are normally tame but where individual members of the group act ferociously or viciously. Fleming in The Law of Torts, Seventh Ed., (Sydney, Australia: The Law Book Company Limited, 1987) puts it this way at p. 331:

  Dangerous animals are divided into two classes: (i) animals ferae naturae, like bears and lions, which by reason of their species are normally dangerous, although individuals may be more or less tame; and (ii) animals mansuetae naturae, like cows and dogs, which, as a kind are ordinarily harmless, though individuals may harbour a vicious or dangerous disposition. Animals of the first category are never regarded as safe, and liability attaches for the harm they may do without proof that the particular animal is savage.... But as regards the second class, it must be shown that the particular animal was dangerous and that the defendant knew, or had reason to know, it.

• Spanton v. Laviolette (Ont Small Claims Court, 1977)
  

  The English rule in this respect dates at least from May v. Burdett (1846), 9 Q.B. 101, 115 E.R. 1213, and is well-summarized in Gomberg v. Smith, [1962] 1 All E.R. 725 at p. 728, [1963] 1 Q.B. 25 at p. 31, as follows:

  So far as concerns damage caused by the mischief of animals (such, for instance, as biting, scratching, or kicking) the law is clear. The owner of an animal ferae naturae is liable for its mischief, since the nature of the wild animal is mischievous. But the owner of an animal mansuetae naturae (cattle, horses, dogs, cats, and the like) is not liable for its mischief, unless scienter is shown, that is, unless he is shown to have had knowledge of its propensity to that or similar mischief.

(c) Statutory Modification of Scienter

The law of scienter has been modified by statute in some provinces, but mostly with respect to domestic dogs. These modifications typically impose 'absolute liability' on dog owners for damage they cause, and amount to both an abolition of the scienter 'prior knowledge' requirement, and - also - a near-automatic finding that the owner is responsible for any harm caused by their dog (aka strict or absolute liability). Essentially these modifications put all the legal burden on the owner to prevent harm, though usually the behaviour of the injured plaintiff (eg. teasing, trespass) can be applied by a court on the issue of their contributory negligence (which will reduce the quantum of their damages).

A good example of this statutory change with respect to dogs is located in s.2 of Ontario's Dog Owner's Liability Act.

A broader, 'all-animals' absolute liability provision is located in Manitoba's Animal Liability Act.


3. Ownership and Possession

Although much less litigated than the issue of civil liability, the question of who owns wild animals has also arisen in the common law - typically in the context of poaching against the Crown. However the modern poaching cases are all premised on Crown prerogative (think Robin Hood) or statutory assignment of ownership of wild animals 'in a state of nature' to the Crown.

The only modern Canadian statement of the pure common law on this issue that I can locate is from Diversified Holdings v BC (BCSC, 1982). There the court, perhaps facing the same paucity of legal authority on the issue as I, had recourse to the Book of Genesis, a somewhat earlier authority:

[16] In the beginning, Genesis said mankind should "have dominion over the fish of the sea, and over the fowl of the air, and over the cattle, and over every creeping thing that creepeth upon the earth". However, as society became more sophisticated and man brought certain animals into a state of subjection, under English law at least it was considered appropriate to distinguish between those animals which under normal circumstances are usually found at liberty, animals ferae naturae, and those animals which are generally tame, living in association with man, animals mansuetae or domitae naturae.

[17] Domestic animals are the subject of absolute ownership, with all the rights, duties, privileges and obligations that legal relationship entails.

[18] Animals ferae naturae are not the subject of absolute ownership, although a qualified property in such animals might be acquired by taking or taming them or while they are on one's estate. An action for damage resulting from the trespass of animals existed only in the case of those animals in which a right of property could exist at common law.

The themes range from no ownership at all lying in free wild animals, to Crown ownership, to ownership coincident with the ownership of the land upon which the wild life is found, to ownership accruing to the 'taker' (ie. hunter, trapper or fisher) upon the taking.

But examination of who owns a wild animal under the common law doesn't matter anymore. Today both ownership and possession of indigenous wild animals are regulated (typically by license requirements) under each province's hunting and fishing statutes. These statutes typically vest ownership of wild animals 'in a state of nature' with the provincial Crown, but then automatically transfer ownership (and a coincident right to possess) to the one who takes the animal in accordance with the law (eg. in the course of licensed hunting, trapping or fishing conducted in accordance with the law).

One example of this configuration is Saskatchewan's Wildlife Act at s.23(1).


4. So What is a 'Wild Animal'?

There is no simple present answer to the question of: what, legally, is a wild animal? - nor to the similar questions of the status of derivative concepts such as 'exotic', 'feral' and 'invasive'. The common law's heuristic standard for 'wildness': ie. whether the species to which an animal belongs is inherently dangerous, was developed for purposes of assigning liability against animal-keepers. It is not a measure necessarily useful for other policy concerns, such as: conservation, animal welfare, or regulation of zoos and circuses.

If there is any utility to the 'wild/domestic' distinction going forward, it may be that the two groupings of animals naturally lend themselves to different 'management' methods. Domestics animals are, if not outright captive, then at least are under or within some form of immediately-assertable individual control. Wild animals on the other hand, if in a state of nature, are not easily subject to that type of immediate control and manipulation, and so must be managed on a mass scale, over large swaths of geography.

But wild animals are 'managed' for a variety of human purposes, and within the many statutes embodying this regulation one finds multiple, and inconsistent, definitions of the concept, as these multi-purpose examples show:

• NS Wildlife Act
  
  s.3 Definitions
  
  (oa) “domestic organism” means an organism that has been substantially altered from its wild progenitor through a long process of selective breeding;
  
  (q)“exotic wildlife” means all birds, mammals and other vertebrates that are not indigenous to the Province and that in their natural habitat are usually wild by nature, and includes any part of such birds, mammals or other vertebrates;
  
  (ba) “wildlife” means vertebrates that, in their natural habitat, are usually wild by nature and includes
  
  (i) domestic organisms that are physically similar to their wild counterparts,
  
  (ii) exotic wildlife,
  
  (iii) hybrid descendants of wildlife or of wildlife and a domestic organism,
  
  (iv) the eggs, sperm or embryos of wildlife, and
  
  (v) any other organism designated as wildlife by the Governor in Council in accordance with this Act and the regulations.
  
  
• NS Provincial Parks Act
  
  s.3 In this Act,
  
  .....
  
  (g) "domestic animal" means an animal that is kept under human control or by habit or training lives in association with man;
  
  (o) "wildlife" means a species of animal which is wild by nature and hence not normally dependent on man to directly provide its food, shelter or water and, where appropriate, includes wild plants.
  
  
• NS Forests Act
  
  s.3(t)
  
  .....
  
  "wildlife" means any species of vertebrate which is wild by nature and hence not normally dependent on man to directly provide its food, shelter or water;
  
  
• Ontario Provincial Parks and Conservation Reserves Act, Provincial Parks General Provisions
  
  s.1(1) In this Regulation,
  
  “domestic animal” means a horse, a dog or any other animal that is kept under human control either by habit or training and lives in association with human beings;
  
  
• NB Society for the Prevention of Cruelty to Animals Act, General Regulations.2(2) Definitions
  
  In the Act and this Regulation
  
  “animal” means a non-human living being with a developed nervous system;
  
  “domestic animal” means any animal that is kept under human control or by habit or training lives in association with man;
  
  
• National Parks of Canada Domestic Animals Regulations s.1
  
  'domestic animal' means "an animal of a species of vertebrates that has been domesticated by humans so as to live and breed in a tame condition and depend on humankind for survival".
  
  
• Canada Wildlife Act, Wildlife Area Regulations s.2
  
  In these Regulations,
  
  "animal" means any animal belonging to a species that is wild by nature or that is not easily distinguishable from such a species;
  
  
• Pest Control Products Act, "Pest Control Products Regulation"
  
  s.1(1)
  "domestic animal" means an animal that is under the control of humans and dependent on them for its survival.

That said, some common 'indicia' of wildness and domesticity may be drawn from the legal sources, as follows:

Issue	WILD	DOMESTIC
1. 'Tameness'	dangerous/unpredictable	tame/biddable
2. 'Breeding'	bred in nature	bred in captivity
3. 'Captivity/Human Control'	not typically	typically
4. 'Sustenance'	self-sustaining	dependent upon humans

It is in light then of such indicia that this wild animal Legal Guide has categorized animals used in fur farms, aquaculture, farmed exotics (think ostriches, emus and rheas) and sometimes even 'canned' hunting (shooting of captive big game) as domestics, as they typically invoke the indicia in #'s 2,3 and 4 above.

On the other hand, a wild-caught raven illegally sold into the pet market invokes 1 and 2 of the wild indicia, and 3 and 4 of the domestic - so where do we locate it? What then if the raven escapes (reverting #3 towards wildness)?

As one can see the potential configurations are many and show the folly of attempting definitive allocation of any species, and even individuals within them, into either of the two categories.

Ultimately, there is no simple answer to the question of: what, legally, is a wild animal? a domestic animal? There are only factors which lean one way or the other.