The accused is charged under s.3(3)(b) of the Dog Hunting and Training Regulations (the “Regulations”) under the Wildlife Act: “It shall be an offence for a person (a) to conduct a field trial; (b) to train a dog to hunt wildlife; (c) to train a dog to hunt a raccoon at night; or (d) to hunt a raccoon at night with a dog, without a valid permit issued under subsection (1)”.
The facts are as follows: the accused is charged with training a dog to hunt wildlife without a valid permit. Respondent was found with a live raccoon in a cage suspended from a tree by a rope. He explained to the witness who found him that he was training the dogs to hunt raccoons with the aid of a caged animal. The Provincial Court judge found the Regulations to be ultra vires of the enabling legislation, s.113 of the Wildlife Act. Crown appeals the decision to this court.
Crown submits that the use of caged raccoons to train dogs is common practice and considered permissible to holders of raccoon dog night training permits, when otherwise conducted within the terms of the Regulations. However, a permit may not always be an effective shield against cruelty to animals (s.446 of the Criminal Code). Freeman J.C.C. considers that “the test for the validity of a regulation dependent upon a general enabling section such as s.113(1)(br) is whether the legislature can reasonably be found first to have considered the general subject matter, then to have intended or at least contemplated the likelihood of the resulting regulation, and finally to have refrained from expressly prohibiting such regulation” (para 26). He is satisfied that the legislature intended the Wildlife Act and Regulations under it to constitute a comprehensive code dealing with wildlife and related matters. It deals with raccoons in a number of sections, as a wild animal; dogs are dealt with in relation to wildlife; training areas and field trials are provided for; and regulations relating to dog training are not expressly excluded.
Freeman J.C.C. finds that s.3(3) of the Dog Hunting and Training Regulations is authorized by implication under s.113(1)(br) of the Wildlife Act and that a person wishing to use caged raccoons to train dogs must have a permit. Appeal allowed. Matter returned to Provincial Court.
Source: Case Law
Jurisdiction: Nova Scotia