By the turn of the 20th century, indiscriminate hunting and the traffic in North American wildlife had decimated many populations, and in some cases, caused their extinction. In an effort to curb the loss of common resources, responsible legislators enacted protective game laws. The newly created province of Alberta banned virtually all commerce in wildlife other than that which supported an established industry such as the fur trade. To ensure that the province maintained control over the resources, it did not allow for any property rights to be transferred to the public. Even animals taken for food under licence remained the property of the Crown.

The legislation worked as intended and most wildlife species that were at risk later recovered and stabilised. This approach remained more or less established until the mid 1980s when new legislation was put into place that allowed for the actual transfer of property rights from the Crown to individual citizens. This was done by way of licence or permit and new industries such as game ranching were established. Based on past experience, many species were not included in the new legislation and traffic in that wildlife, which by definition includes parts of the animal, remained illegal. In some cases, court interpretations resulted in changes to the way commerce in wildlife was conducted, and where it was found acceptable to wildlife management, incorporated into law. One such example is the legal sale or purchase of animal parts that have been naturally shed without causing the death of the animal itself (exuviae). For example, antlers or feathers naturally moulted are exuviae.

The Case

In the spring of 1998, a complaint was received at the Natural Resources Services (NRS) office in Wetaskiwin reporting that a local business, Bear Paw Pawn Ltd., was dealing in native ceremonial items, in particular, articles made from raptor feathers. Officer Jason Hanson responded to the complaint on April 14 and met with the owner, Brian Zielke. Hanson noted a number of native ceremonial items on the premises, including dancing bustles, headdresses, dream catchers, hair drops and fans. Most of the items were made from the feathers of birds of prey and a number of them were displayed with a price tag.

During the investigation Hanson determined that the items were taken in pawn and, at times, sold during business transactions. In an effort to legitimise those transactions to Hanson, Zielke produced a letter from NRS explaining that exuviae could be legally bought and sold in Alberta.

In order to determine the species of wildlife in question and whether or not they were exuviae, Hanson took photographs of the items and presented them to Gordon Court, a wildlife biologist and expert in the field. Court identified the feathers as coming from Bald and Golden Eagles, Northern Goshawks, Red-Tailed Hawks, Swainson's Hawks, and Sharp-shinned Hawks. The items were made from the primary and secondary feathers, in groups and numbers not normally found naturally shed.

On April 17, 1998 officers returned to Bear Paw Pawn with a search warrant and seized the items Court had identified as suspect. Brian Zielke and his company, Bear Paw Pawn Ltd. were charged with nineteen counts under the Wildlife Act, including six counts of trafficking in wildlife, six counts of possession wildlife for the purpose of trafficking and seven counts of illegal possession of wildlife.

Subsequent forensic examinations validated Court's initial assessment that the feathers were from birds of prey (wildlife) and, in many cases, were not exuviae.

Wildlife biologist Gordon Court (L), Zielke (C) and Officer Jason Hanson (R) examine an article made from the feathers of a bird of prey species.

Other native ceremonial items hang on the wall behind. Photo by Daniel Boyco. Zielke plead not guilty on all counts and a date was set to hear the case. The five-day trial was heard by the Honourable Judge D. J. Plosz, at which time the prosecution entered the expert testimony of Gordon Court to establish the fact that illegal transactions involving wildlife had occurred and that many of the items could not have been naturally shed. Commerce was permitted for those items that were established as exuviae, and in the cases where there was a possibility that feathers were exuviae, the benefit of the doubt went to the accused. The onus, however, was placed on the accused to put forward a defence in relation to the items where, in the opinion of the expert witness, it was impossible for the types, numbers, or symmetry of feathers to have been naturally shed from a single bird. Some items contained body parts of the bird, leaving little doubt they were not naturally shed.

Counsel for the defence used case law to have the judge find in favour of his client. The first was a suggestion that the Zielke did not knowingly violate the law by trafficking in the feathers. Ziekle testified that he believed they were exuviae and that a closer examination, by taking the article apart to make the determination, would have been "rude." Judge Plosz did not agree.

The defence argued mens rea, the need for the Crown to prove criminal intent, suggesting there was no intention to break the law. He referred to the Sault St. Marie decision, which categorised offences as one of three types: mens rea, strict liability or absolute liability offences. The first kind, a mens rea offence, is an offence where the Crown must prove criminal intent by evidence of either actual intent to achieve the unlawful consequence, or of reckless conduct which brings about the unlawful consequence. The second is represented by a violation of a type that proof of criminal intent is not required to convict, but the accused may avoid liability by proving that he took all reasonable care to adhere to the law. This proof, of taking all reasonable care, is referred to as showing due diligence. An absolute liability offence is when the accused is not provided the defence of showing due diligence and the mere fact that a violation occurred is sufficient to convict.

Judge Plosz determined that the charges before him were strict liability offences, and upon hearing the evidence, found that the accused did not show sufficient due diligence in attempting to determine whether or not the feathers were naturally shed. He also found that the conditions to prove illegal trafficking in wildlife were met when an item was pawned. Specifically, when an item was pawned by a native person who was paid $750 and who later reclaimed it for $975, constituted trafficking in wildlife. The items that displayed price tags and those that were sold also met the criteria.

On March 7, 2000 Judge Plosz found Brian Zielke guilty on eight counts, not guilty on six counts, dismissed three counts and stayed two others. He sentenced Zielke to pay $8,100 in fines, taking into consideration the fact that between $4,000 and $5,000 had been invested and lost as a result of the seizures that were made.

S.W.H. Webb is a member of the Alberta Fish and Wildlife Officers Association in Calgary.