Reply from Fish & Wildlife branch!

[mark]

Well after swapping a few emails with the Chief CO of BC regarding my thread about the "smallest legal moose", he forwarded it to the fish & wildlife dept.
Here is the reply I got. Looks like we'll see some clearer regs for next year!
(They even got my name wrong, so how could the regs be perfect :? )

Hello Mike,
Thank you for your email dated October 29, 2008, regarding the distinction between calf and spike-fork moose. Your inquiry has been forwarded to me for response.
It is apparent by reading the online forum that clarification of this component of the annual hunting and trapping synopsis is required. Ministry of Environment staff are aware of the issue, and will be taking steps to develop a more coherent definition for the 2009-2010 hunting and trapping synopsis.
The following provides some background on the development of a spike-fork moose season. This may give you an idea as to the direction the Fish and Wildlife Branch will go in clarification of "what is legal to harvest during a spike-fork bull moose season?".

Bull moose are a highly desired big game species. With some exceptions, any bull GOS seasons are not sustainable in BC due to high hunter demand.
When conservation becomes a concern (i.e. when demand exceeds supply), various regulations may be implemented to control the bull harvest within sustainable limits.
LEH is one mechanism to control the bull harvest, but because it limits hunter participation, it is generally least favoured by hunters.
Other mechanisms for controlling the bull harvest are antler point regulations during the GOS. Currently BC provides 3 types of antler regulations: spike-fork bull, tripalm bull and 10 point bull.
Of the 3 regulations, the spike-fork bull is most commonly used. This is because it focuses the harvest on immature (yearling) bulls.
A spike-fork moose means a bull moose having no more than two tines on one antler (see page 4 of the 2008-09 Hunting and Trapping Synopsis). A tine if defined as a branch of an antler that is at least 2.5 cm (1 inch) in length
Studies have shown that generally no more than 50% of yearling bulls have the spike-fork antler configuration. Thus, it is considered a safe regulation because it ensures that enough yearling bulls will survive the hunting season to become mature bulls.
Occasionally, a male calf moose may be observed during the fall with small "button" antlers caused by rubbing the skin and hair off the forehead. The spike-fork definition was not intended to include these calves. Thank you for bringing this issue to the attention of the Ministry.
Sincerely,
Stephen MacIver
Senior Wildlife Regulations Officer
Fish and Wildlife Branch
Ministry of Environment

[6616]

Thanks Mike, good job.

[1899]

Hey Mike. I mean Mark. :)

Caveman posted this on the other thread. His letter said the same thing. I guess I will be getting the same response.

[bsa30-06]

Hmm ....clear as mud.!!

[Caveman]

Hey Mike. I mean Mark. :)

Caveman posted this on the other thread. His letter said the same thing. I guess I will be getting the same response.


Same Guy, Same Response. He did however get my name right :razz:

[gameslayer]

Interesting, thanks for helping to clarify the regs, It could affect any one of us.

[mark]

Same Guy, Same Response. He did however get my name right :razz:


Ya too funny, I saw that right after posting this, Oh well its nice to see they followed up, and responded to concerned people!

[Caveman]

Ya too funny, I saw that right after posting this, Oh well its nice to see they followed up, and responded to concerned people!

And Hey, sounds like we may have even sparked a change to clarfy things. ;-)

[Steeleco]

Good job Mark. It's good I agree, that they acknowledged your inquiry, but aren't these the same guys that were going to streamline all the reg's and introduce some new reg's for newbies of all ages.

We're still waiting for the latter??

[Johnnybear]

Good on ya Mark for the letter and the response. I like the "reading the online forum" remarks in the reply. I hope it makes some think twice about posting some *rap that might get them in trouble on here. Again good on ya for pushing the issue.

[hunter1947]

Thats good that you sent in a email the the branch Mark thank you for doing this http://www.huntingbc.ca/forum/images/icons/icon7.gif http://www.huntingbc.ca/forum/images/icons/icon14.gif.

I hope they the management make the calf spike fork clearer in the 2009 regs.

[Fisher-Dude]

Looks like all of our chirping and counter-posts were productive! Although we all had different ideas of what the regulations meant, one thing we did agree on was the need for clarification.

Good job Mike...Mark...whatever the hell yer name is! :razz:

[Jager]

And what about the mature bull with the broken antler with 2 points remaining???? Can the quote be altered?

"The spike-fork definition was not intended to include these (calves) BULLS"

[Nooker77]

Thanx Mark!!

[GoatGuy]

Sorry to throw a wrench into things but the 'law' doesn't care about intent.

It cares about interpretation of law.

If this type of thing were to end up in court the judge would have to look at the legal definition of antlers,tines and spike-fork bull and make judgment from there.

Natural law or rulings based on morality and ethics generally don't really have a place in court. Of course there's always an outlier and there are certainly lawyers that will tell you that for $$$.

Generally decisions on morality and ethics are left for hunters to bicker about on hunting boards - of which the law don't care. :razz:

[Caveman]

This is true, but a lot of the "Intent" from this discussion may lead to a change to clarify the definitions. Besides the spike/fork season is over, so it means nothing until next year now.

[GoatGuy]

This is true, but a lot of the "Intent" from this discussion may lead to a change to clarify the definitions. Besides the spike/fork season is over, so it means nothing until next year now.

Yep, you're very correct. Then you'd need to dip it in acid and look at the reasonable person test.

[Caveman]

Yep, you're very correct. Then you'd need to dip it in acid and look at the reasonable person test.


Lets hope it works!!!

[mark]

Sorry to throw a wrench into things but the 'law' doesn't care about intent.

It cares about interpretation of law.

If this type of thing were to end up in court the judge would have to look at the legal definition of antlers,tines and spike-fork bull and make judgment from there.

Natural law or rulings based on morality and ethics generally don't really have a place in court. Of course there's always an outlier and there are certainly lawyers that will tell you that for $$$.

Generally decisions on morality and ethics are left for hunters to bicker about on hunting boards - of which the law don't care. :razz:

GG I agree with ya 100%, You didnt come out to play in the "smallest moose thread" Im curious, what was your take on the issue, according to the letter of the regs???

[1899]

Sorry to throw a wrench into things but the 'law' doesn't care about intent.

It cares about interpretation of law.

If this type of thing were to end up in court the judge would have to look at the legal definition of antlers,tines and spike-fork bull and make judgment from there.

Natural law or rulings based on morality and ethics generally don't really have a place in court. Of course there's always an outlier and there are certainly lawyers that will tell you that for $$$.

Generally decisions on morality and ethics are left for hunters to bicker about on hunting boards - of which the law don't care. :razz:

I think you have made a mistake about the use of the word "intent". It is not th intent of the accused that we are talking about - indeed that has no place in a strict liability offence.

We are talking about legislative intent, and in the event that the text does not have a plain meaning, then legislative intent is important. As Drieger stated many years ago (a statement that has been looked on favourably by the Supreme Court of Canada):

‘Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.’

From the case Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 (Supreme Court of Canada):


At the heart of this conflict is an issue of statutory interpretation. Although the plain language of ss. 40 and 40a of the ESA suggests that termination pay and severance pay are payable only when the employer terminates the employment, statutory interpretation cannot be founded on the wording of the legislation alone. The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

Would it get to a discussion about legislative intent in court? I don't know. I think you could get over the hurdle by looking at the definition in the regs, and explaining a point of view that shows all reasonable care was taken to avoid the offence. I pointed out in the other thread that someone charged with shooting a calf out of season, if it met the definition of spike-bull would have a decent chance at beating the charge.


Your comment about "certain" lawyers is uncalled for. Consider how you feel when the media or some uniformed person portrays poachers as hunters.

[Elkhound]

sure would be nice if they accepted our offer of getting a resident CO section for questions like this

[GoatGuy]

I think you have made a mistake about the use of the word "intent". It is not th intent of the accused that we are talking about - indeed that has no place in a strict liability offence.

We are talking about legislative intent, and in the event that the text does not have a plain meaning, then legislative intent is important. As Drieger stated many years ago (a statement that has been looked on favourably by the Supreme Court of Canada):

‘Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.’

From the case Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 (Supreme Court of Canada):



Would it get to a discussion about legislative intent in court? I don't know. I think you could get over the hurdle by looking at the definition in the regs, and explaining a point of view that shows all reasonable care was taken to avoid the offence. I pointed out in the other thread that someone charged with shooting a calf out of season, if it met the definition of spike-bull would have a decent chance at beating the charge.


Your comment about "certain" lawyers is uncalled for. Consider how you feel when the media or some uniformed person portrays poachers as hunters.

Just had a computer meltdown. Figured there was a lawyer on board.

I was talking about legislative intent. There is nothing in the regulation and nothing in the act that states (implied or expressed) the exact age of the animal or the intent of the regulation.

You could back up a step and look at the antlered animal, which is to be at least 1 year old but that only defines the lower threshold, not the upper threshold. It would also be extremely difficult to stick the reasonable person test to a hunter particularly considering the standard application to 'professionals' when it comes to hunting.

In the past it was actually called the immature bull moose season however that's also incorrect as a 1 1/2 yr old bull is actually sexually mature even if he doesn't get much use out of it other than punishing the odd sapling! In that case there would be no legal immature bull moose.

If it isn't implied or written I don't think the court will care that a couple of people who designed the regulation know what the intent is. The intent isn't expressed or implied in the act or the regs.

You could apply the lower limit of the antlered animal being 1 1/2 yrs old by hunting season but there's nothing anywhere to prevent someone from shooting a 1x100 pt bull.


Sorry about the lawyer comment - I said 'certain' lawyers instead of saying all lawyers. (that's a joke) ;) I'll be more careful in the future.