Environmental Appeal Board

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1 Environmental Appeal Board Fourth Floor 747 Fort Street Victoria British Columbia Telephone: (250) Facsimile: (250) Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 APPEAL NO. 98-WIL-24 In the matter of an appeal under section of the Wildlife Act, R.S.B.C. 1996, c. 488 BETWEEN: Allan John APPELLANT AND: Deputy Director of Wildlife RESPONDENT BEFORE: A Panel of the Environmental Appeal Board Christie Mayall, Chair DATE OF HEARING: October 19, 1998 Concluding in writing on November 16, 1998 PLACE OF HEARING: Prince George, B.C. APPEARING: For the Appellant: Bruce Kaun, Counsel For the Respondent: Joe McBride, Counsel APPEAL This is an appeal against the May 19, 1998, decision of the Deputy Director of Wildlife denying Allan John a permit to possess three east African Gaboon vipers (Bitis gabonica gabonica) and three west African Gaboon vipers (Bitis gabonica rhinoceros). The Environmental Appeal Board has the authority to hear this appeal under section 11 of the Environment Management Act and section of the Wildlife Act. Mr. John seeks an order allowing him to possess Gaboon vipers. BACKGROUND Gaboon vipers are native to west and central Africa, western east Africa, southern Tanzania, parts of Zambia, northern Zimbabwe and northern Natal. They grow to approximately 2 metres in length, and are considered the largest vipers in the world by weight. Their colour and pattern is vivid and striking with many shades of purples, browns, creams, and other subtle colour combinations in a complex arrangement of geometric shapes, somewhat like an oriental carpet. Their fangs are about 5 centimetres long and their venom is fatal without sufficient quantities of the appropriate antivenin. Mr. John has been interested in snakes since he was about 7 or 8 years old and has possessed snakes since He currently possesses 18 snakes, the largest of which is about 12 feet in length and the most poisonous of which is about as toxic as a bee sting. The snakes are kept in cages in his living room and in a locked

2 APPEAL NO. 98-WIL-24 Page 2 bedroom of the trailer in which he lives in Chetwynd, British Columbia. Mr. John makes educational presentations with live snake specimens to students from elementary schools, high schools and colleges in several towns in northeastern British Columbia. He also shows his snakes to the community at large during the Family Fest in the spring and during Ghoulish Affair in the fall. In the fall of 1996, Mr. John applied to Andy Ackerman, the Regional Manager for Fish and Wildlife in Fort St. John, for a permit to import and possess three east African Gaboon vipers and three west African Gaboon vipers. The reasons that Mr. John gave for wanting to acquire Gaboon vipers were to add to his educational presentation, to breed and sell to universities, and to eventually milk the snakes for venom that he could sell. The permit was refused on October 8, This decision was appealed to the Deputy Director. The Deputy Director stated that Gaboon vipers fall into the family Viperidae - pit vipers and are therefore prescribed as wildlife under the Designation and Exemption Regulation, B.C. Reg. 168/90. The Deputy Director found that the Ministry of Environment, Lands and Parks had made a policy decision to not allow the private possession of venomous snakes except in extenuating or special circumstances. He was convinced that no special circumstances exist that should allow Mr. John to be given a possession permit in these circumstances. RELEVANT LEGISLATION Section 33(1) of the Wildlife Act states: A person commits an offence if the person has live wildlife in his or her personal possession except as authorized under a licence or permit or as provided by regulation. Mr. John applied for a permit to import and possess the snakes under sections 19 (general permits) and 21 (import and export of wildlife) of the Act: 19 (1) A regional manager may, to the extent authorized by and in accordance with regulations made by the Lieutenant Governor in Council, by the issue of a permit, authorize a person (a) to do anything that the person may do only by authority of a permit or that the person is prohibited from doing by this Act or the regulations, or subject to and in accordance with those conditions, limits and period or periods the regional manager may set out in the permit and, despite anything contained in this Act or the regulations, that person has that authority during the term of the permit. 21 (1) Except as authorized by a permit issued under this Act or under the Convention on International Trade in Endangered Species of Wild Fauna and Flora, a person commits an offence if the person (a) imports into British Columbia live wildlife, or the egg of a wildlife species,

3 APPEAL NO. 98-WIL-24 Page 3 The term wildlife is defined under section 1 of the Act as raptors, threatened species, endangered species, game or other species of vertebrates prescribed as wildlife.... There is no evidence that the snake at issue in this appeal is a raptor, threatened or endangered species or game. Therefore, if it is wildlife under the Act, it must fall under other species of vertebrates prescribed as wildlife. The Designation and Exemption Regulation of the Act states: 1. The vertebrates listed in Schedule A are prescribed as wildlife for the purposes of the definition of wildlife in section 1 of the Wildlife Act. Section 1(v) of Schedule A of the Designation and Exemption Regulation specifies that all species of the family Viperidae - pit vipers are prescribed as wildlife within the province of British Columbia. ISSUES The Panel has identified the issues in this appeal as follows: 1. Whether Gaboon vipers fall under section 1(v) of Schedule A of the Designation and Exemption Regulation and are therefore regulated as wildlife under the Wildlife Act. 2. If not, whether any other section of the Wildlife Act or of Ministry of Environment, Lands and Parks policy prohibits the possession of venomous snakes DISCUSSION AND ANALYSIS 1. Whether Gaboon vipers fall under section 1(v) of Schedule A of the Designation and Exemption Regulation and are therefore regulated as wildlife under the Wildlife Act. As noted above, section 1(v) of Schedule A of the Designation and Exemption Regulation states that all species of the family Viperidae - pit vipers are prescribed as wildlife within the province of British Columbia. This is the section used by the Deputy Director to determine that the Gaboon viper is wildlife under the Wildlife Act and therefore requires a permit to be imported and possessed. Originally, the Appellant accepted that the Gaboon viper fits within this designation. However, in the course of the hearing before the Board, a question arose as to whether this viper does, in fact, properly fall under this section. The question initially arose when it was noted that the terms pit viper and Viperidae are not synonymous in that Gaboon vipers are Viperidae, but are not pit vipers. Thus, did the legislature intend for snakes such as Gaboon vipers to be captured by this section? To determine the intent of the legislature, it is necessary to define the terms Viperidae and pit viper and also examine the context within which these terms are used. It was noted that the taxonomic system used in the regulation under the Alberta Wildlife Act subdivides Viperidae into three subfamilies, one of which is the

4 APPEAL NO. 98-WIL-24 Page 4 subfamily Viperinae which includes genus Bitis (Gaboon vipers). This Regulation then distinguishes pit vipers as a separate family, Crotalidae. Alberta Legislation Family: Viperidae (vipers and adders) Subfamily: Viperinae Species: Bitis gabonica gabonica Bitis gabonica rhinoceros Family: Crotalidae (pit vipers) Under this system the terms Viperidae and pit viper (Crotalidae) are mutually exclusive. Because of the use of both pit viper and Viperidae in section 1(v), it could be argued that both families are meant to be captured by the section. However, another taxonomic system, described in The Encyclopaedia of Snakes by Chris Mattison, includes pit vipers as a subfamily within the Viperidae family. In this system, family Viperidae is subdivided into four subfamilies. The pit viper subfamily is Crotalinae. The Gaboon viper is included in the subfamily Viperinae (as above). Encyclopedia of Snakes Family: Viperidae (vipers, adders, and pit vipers) Subfamily: Viperinae Species: Bitis gabonica gabonica Bitis gabonica rhinoceros Subfamily: Crotalinae (pit vipers) If this system is used to interpret section 1(v), it is arguable that by referring to Viperidae pit viper the legislature intended to limit what is captured by the broader family name (Viperidae), to only one of the subfamilies pit vipers or Crotalinae. The Panel requested and received additional written submissions from the parties on this matter. From the submissions it appears that the following can be said: Viperidae is the scientific name for the family of snakes commonly known as vipers and adders. It includes three or four subfamilies, depending on which classification system is used. Gaboon vipers (Bitis sp.) are a member of the Viperinae subfamily. Pit viper is a common name, describing a type of viper that has heat-sensing pits on the side of the face. They are recognized either as a subfamily within the Viperidae family (Crotalinae) or as a separate family altogether (Crotalidae). Regardless of the taxonomic system used, there is no dispute that the Gaboon viper does not have a heat-sensing pit on the side of its face and is, therefore, not a member of this family or this subfamily.

5 APPEAL NO. 98-WIL-24 Page 5 Counsel for the Respondent argues that the Gaboon viper is wildlife. He acknowledges that there is arguably an inconsistency in Schedule A of the Regulation in that, in one taxonomic system, pit vipers are a subset of the family Viperidae and, in the other, they are not even within the family Viperidae. However, he adds that the conflict can be resolved by applying the context principle of statutory interpretation, among other things. In applying the context principle of interpretation, the Respondent submits that the reader should look to similar constructions within the enactment to see if a pattern can be determined. He suggests that the pattern in Schedule A is clear: the common name is a restatement or synonym of the scientific name. He submits that the pattern is not for the common name to narrow or expand the scientific name, or to specify a thing not intended by the scientific name. He also notes that common names are less exact than scientific names and, in the case of an inconsistency between the two, the definitive term, the Latin name, should be used; in this case, the name Viperidae. The Respondent submits that under both taxonomic systems, the Gaboon viper is within the family Viperidae and, therefore, the Gaboon viper is clearly wildlife under the Wildlife Act. In support of this argument, the Respondent tendered an written by Chris Dodd, dated November 5, Mr. Dodd had been a biologist with the Wildlife Branch, and was responsible for the complete revision of the Designation and Exemption Regulation under the Wildlife Act in Prior to this revision, the equivalent of section 1(v) in the current Regulation simply included Crotalus viridis - western rattlesnake. The western rattlesnake is a pit viper. In 1990, this section was changed to its present language - broadening the scientific name to include the entire Viperidae family, but only broadening the common name to pit vipers. In the , Mr. Dodd explained why the drafters of the section chose to amend the section and used the words Viperidae and pit viper, and explained what he believes the legislature intended when enacting this section. Mr. Dodd states: there was no intent to allow the common name pit viper to restrict the meaning of the English name for the Latin. It was not meant to either expand or contract the list of animals referred to within the family Viperidae. It was intended, in fact, to include all the Old World vipers within the designation, despite many of them not being pit vipers. While the evidence of Mr. Dodd is relevant to the matter before the Board, its credibility or reliability is untested. Mr. Dodd was not a witness at the hearing and has not been subject to cross-examination on this evidence. In the Panel s view, this evidence has been tendered for the purpose of explaining not only the context in which the Regulation was drafted, but also as direct evidence of the legislative intent. In R. v. S. (G.) (1988), 67 O.R. (2d) 198 (C.A.); affd [1990] 2 S.C.R. 294, Lacourciere J.A. of the Court of Appeal stated that: Courts are not to be guided in their interpretation of statutes by the opinion of persons such as the witness in this case, although he was described as a knowledgeable senior civil servant in the federal

6 APPEAL NO. 98-WIL-24 Page 6 Department of Justice. The opinion of any policy-maker or law enforcement officer cannot be qualified as expert evidence when the court is considering the interpretation of or the purpose of a statute. (p. 212) In the view of the Court, it was not possible for the opinion of a government servant to be equated with, or even linked to, the intention of the legislature. The Panel finds that little or no weight can be given to Mr. Dodd s explanation of the legislative intent and meaning of the words used. The meaning of the words should be determined by reference to the general use of the words, other sections in the same statutory enactment, and the context of the section itself. Upon reviewing the Regulation, the Panel agrees with the Respondent that the common names in the other sections of the Schedule consistently match the scientific names they are synonomous. There is no indication that the legislature, by using the phrase Viperidae - pit viper, intended to capture two different families of snakes. This would be contrary to the drafting style used in the Schedule, which is for the Latin name to be followed by the common name. Further, if the legislative intent had been to regulate both families, then it seems likely that it would have specified each family separately, for example, by using the Latin family name for pit viper Crotalidae. It also appears on the evidence that the system adopted by Alberta is less common than that used by Mattison, which includes pit viper as a subfamily of the Viperidae family. Thus, the Panel finds that the Designation and Exemption Regulation was based on the taxonomic system which includes the pit viper as a subfamily of the family Viperidae. The next question is whether the legislature intended to narrow the broad scientific name Viperidae, by referencing just one of the subfamilies, that of the pit viper, as opposed to something more synonymous with Viperidae such as vipers and adders. The Panel finds the following evidence to be particularly compelling: Only Crotalus viridis (western rattlesnake), which is indigenous to this province and is a pit viper, was designated as wildlife under an earlier version of the legislation. The Appellant presented uncontested evidence that many snakes equally venomous to the Gaboon viper remain unregulated in British Columbia, including Egyptian cobras, twig snakes, sea snakes, boomslang, and king brown snakes. The species designated as wildlife in the Regulation are either indigenous to British Columbia, or have established populations that survive naturally in the wild in the province. Further, the Supreme Court of Canada has stated, [i]t is a principle of statutory interpretation that every word of a statute must be given meaning (Communities Economic Development Fund v. Canadian Pickles Corp., [1992] 1 W.W.R. 193, at 209). The rationale for this principle is the presumption that the legislature avoids using meaningless or superfluous words in legislation, and that every word in a statute is presumed to have a specific role to play in advancing the legislative purpose (R. Sullivan, Driedger on the Construction of Statutes, 3 rd. ed., 1994, at

7 APPEAL NO. 98-WIL-24 Page 7 159). Therefore, the legislation should not be interpreted in a way that renders any portion of a statute meaningless. In the Panel s view, to accept the Respondent s position that the Gaboon viper is wildlife because it falls within the family Viperidae in spite of the fact that it is not a pit viper would be to disregard the use of the common name in the section, or to interpret it as meaningless. The Panel cannot accept that this is what the legislature intended. In light of the above, the Panel concludes that the term pit viper is meant to narrow the application of the term Viperidae to include the pit viper subfamily only - not snake species belonging to other sub-families of Viperidae, which are not indigenous and which have not established wild populations in British Columbia. Gaboon Vipers are not members of the pit viper subfamily, are not indigenous to British Columbia, and there is no evidence that they have established a wild population in this province. Moreover, given that they occur naturally in much warmer climates, it is unlikely that they could survive in the wild in the province. The Panel finds, therefore, that Gaboon vipers are not prescribed as wildlife under the Wildlife Act. 2. Whether any other section of the Wildlife Act or of Ministry of Environment, Lands and Parks policy prohibits the possession of venomous snakes. While the Panel has concluded that Gaboon vipers are not wildlife within the meaning of the Wildlife Act, the Act regulates certain activities concerning animals, the definition of which includes reptiles. No permit is required for animals just for wildlife possession. The way that the Act deals with animals is to apply consequences to persons who release, abandon, or allow the escape of captive animals (see sections 2(5)(b), 76, and 77). The Respondent argues that the Appellant should not be allowed to import or possess these snakes because of public safety concerns and treatment concerns related to a potential snakebite. The Respondent also suggests that it is Ministry policy to generally prohibit the private possession of poisonous snakes. In his decision, the Deputy Director states that [the Ministry s Procedure Manual] contains standards for the caging and keeping of venomous snakes. It also states that it is to apply in all cases where live wildlife is kept, whether for private or commercial use. Nowhere in this procedure does it contemplate private possession of venomous snakes. Therefore, he concludes: it is clear to me that the ministry has made a policy decision to not allow private possession of venomous snakes except in extenuating or special circumstances. The Panel disagrees with the Deputy Director s conclusion. The policy refers to private possession and deals with standards for caging and keeping of venomous snakes. In the Panel s view, the policy does therefore contemplate private possession of venomous snakes. However, if the Ministry is attempting to make a general policy to prohibit the private possession of poisonous snakes, the law is clear that policy does not have the force of law. Nowhere in the Act or Regulation is there express mention of a

8 APPEAL NO. 98-WIL-24 Page 8 requirement for a permit or licence to possess animals such as poisonous snakes which are not wildlife. Nor is there any express prohibition from possessing poisonous snakes. As was noted by the Appellant, many snakes equally venomous to the Gaboon viper remain unregulated in British Columbia. While there probably should be some regulation, the Panel can find no clear authority in the legislation regarding the conditions under which a person may possess such an animal, as long as it remains in captivity. The Act and Regulation simply provide consequences to an owner should a captive animal move outside of its captive environment. The Panel finds that there is nothing in the Wildlife Act requiring a permit for, or prohibiting the importation and possession of venomous snakes, such as the Gaboon viper, which are not wildlife for the purposes of the Act. DECISION In making this decision, the Panel of the Environmental Appeal Board has carefully considered all relevant documents and all evidence and arguments made during the hearing, whether or not they have been specifically reiterated here. The Panel found that Gaboon vipers are not prescribed as wildlife under the Wildlife Act. It follows, then, that they are not subject to regulation under the Wildlife Act as wildlife. Rather, they are subject to regulation as animals. Therefore, the Panel rescinds the decision of the Deputy Director to deny a permit to possess Gaboon vipers as no permit is required. However, the Panel remains concerned about the care and handling of the snakes and about public safety and is compelled to make the following comments. The Specific Guidelines for Captive Animal Standards contained in the Procedure Manual address the care and handling of poisonous snakes. While not binding, the guidelines provide reasonable direction to owners of such animals. Mr. John gave evidence that indicated that he was not aware of several of the provisions of the guidelines, and that he planned to have considerably more public interaction with the reptiles than is recommended in the guidelines. The Panel is extremely concerned at the prospect of Gaboon vipers being transported regularly and being taken regularly to any educational institutions or community events. The Panel also notes that the guidelines state that snakes should be kept in cages constructed of smooth, waterproof, rigid, chemically inert material, e.g. glass, plastic, arborite, etc. to facilitate quick, thorough cleaning. Mr. John showed the Panel a photograph of the metal that he planned to use to build the enclosures for the snakes. The metal was being stored outside and appeared rusty. It did not appear smooth or chemically inert. The Panel is concerned that Mr. John has not clearly thought through the care and handling of Gaboon vipers or the use that he would be able to make of them once acquired. The Panel is extremely concerned, therefore, that Mr. John is making too great a leap from the relatively innocuous snakes that he currently possesses to snakes with a potential to kill humans.

9 APPEAL NO. 98-WIL-24 Page 9 After being turned down in his application for Gaboon vipers, Mr. John contacted Mr. Ackerman regarding an application for a less poisonous type of viper, but he was told that this application, too, would be unsuccessful. Given the Panel s decision in this appeal and Mr. John s freedom to obtain the viper of his choice, the Panel strongly recommends to Mr. John that he begin by acquiring some of the less poisonous species. Although he would not be beginning with the cadillac of snakes, his educational objectives could be met with other species. In considering this direction, the Panel would like to draw Mr. John s attention to an excerpt from Reptile Life which he presented at the hearing. This article was written with reference to an almost fatal bite from a pet Gaboon viper. What is arguable, then, is whether the keeping of such extremely dangerous creatures in a household setting shows good judgement, regardless of motive or the expertise of the individual involved. Herpetoculturists, in recognition of the very real, ancient prejudices that still exist surrounding herptiles, must know when to make personal sacrifices for the good of their public image, for reasons of self-preservation. To lose respect for the rights of the public, to behave out of selfishness, is to risk retraction of their right to pursue their hobby in any capacity. Herpetoculturists must try to understand what constitutes a reasonable expectation on the part of the public. If the public suggests that noone be allowed to keep a rosy boa or a pine snake - creatures that constitute no danger whatsoever to a human being - they are acting out of ignorance, they are being unreasonable. On the other hand, citizens do have a right to expect that their neighbours will be responsible enough (to) not bring into their midst creatures that are, by anyone s standards, extremely dangerous. Venomous snakes are awesome, fascinating, and often beautiful creatures. Whether or not they belong in the home, or are best enjoyed in the wild, is a question to be taken very seriously. The Panel also recommends that the Ministry consider amending the Wildlife Act to enable the government to better regulate the possession of poisonous snakes that may present a danger to the public. Christie Mayall, Panel Chair Environmental Appeal Board February 16, 1999