KITCHENER TO BAN BIRDS

October 1999

The City of Kitchener has just become a less friendly place for bird owners and breeders. On September 27, 1999 the Finance and Administration Committee recommended a new Animal Control By-Law to City Council which will trample on the rights of pet bird owners and breeders and set back captive breeding for conservation purposes. There seems little doubt that they will pass the by-law since most members of Council sit on the Committee and voted for the recommendation.

It is remarkable that a number of the councillors made comments like "well it isn’t perfect but it will have to do" and "we can always change it later if we have to." Their attitude could only be described as arrogant since it flew in the face of the vast majority of deputants who spoke against the by-law. Only the Chairman, Councillor Ziegler, tried to convince the others to listen to the public and consider some changes to meet some of the more serious concerns. Out of 19 deputants, 15 were against the by-law and, as one participant stated, "this sure isn’t the way democracy is supposed to work."

Unlike the Toronto By-law which provides a list of prohibited animals, Kitchener is taking a different approach. They decided to ban all "wild caught" animals, including of course all birds. All of us oppose taking birds out of the wild for the pet trade or private collection, but this definition causes serious problems. It does not distinguish between birds that were taken out of the wild years ago when it was legal to do so and those that might be taken illegally in the future.

Therefore, all existing pet birds and aviary stock within the limits of the City of Kitchener that originally came out of the wild, regardless of how long you have owned them, will be illegal. The by-law goes one step further and makes illegal any bird whose parents were wild caught.

Unfortunately, the by-law does not specifically provide an exemption for birds owned as of the date it is passed, a "grandfathering" provision which is usually seen in these cases.

The councillors on the Committee did not seem to understand the distinction and one of them, Councillor Vrbanovic, attacked many of the speakers and repeatedly said he did not understand the objection to "taking birds out of the wild."

The councillors also did not seem to understand that it is impossible to prove that a particular bird is wild caught. (One of the speakers for the animal extremists actually claimed that he could tell "by observing the bird"!)

Although the majority of speakers made rational, knowledgeable and concerned arguments against the offending portions of the by-law, the animal extremists just trotted out their usual propaganda which seemed to appeal to the majority of the
councillors. It was even admitted that it is difficult to see this issue in other than a moral or emotional light.

Speaker after speaker endorsed the Toronto By-Law and urged Kitchener to accept it as a fair and reasonable alternative. Even the animal activists could only say that it was "watered down" but did not reject it outright. However, Kitchener Council is probably too proud to adopt another city’s by-law, no matter how reasonable it is.

Some of the recommendations that were made and rejected are:

• Remove the term "wild caught" entirely because it is impossible to determine and, is therefore, impossible to enforce. It only allows opportunity for abuse by overzealous enforcement officers. (By the way, in Kitchener, even the plumbing inspector can enforce these provisions! It says so right in the by-law.)
  
  
• If Council insists on keeping the wild caught definition, at least provide an exemption for those birds allowed under federal or provincial legislation. Otherwise Kitchener will be making it illegal to keep birds that are legal everywhere else in Canada!
  
  
• Provide a very clear "grandfather" provision that states that wild caught birds currently owned are exempt from the by-law. This is only fair to ensure that a subsequent council or the new "Animal Designation Appeal Committee" does not decide later to ban them entirely.
  
  
• Remove the generational requirement which makes absolutely no sense and is completely incapable of proof. The Committee can ban birds if they have not been bred in captivity for at least six generations.
  
• Remove these draconian registration requirements which essentially force innocent people to declare their pets and aviary birds to be prohibited animals and turn themselves into the municipal authorities.
  
  
• Get rid of these categories; permitted, restricted and prohibited animals. No one can understand them and they will lead to confusion and abuse.
  
  
• Do not adopt provisions that will result in the end of captive breeding for species preservation when the real threat that should be addressed is habitat destruction.
  
• Clarify what the City’s intentions are with respect to birds that suddenly are prohibited and illegal. Provide clear assurances that there will not be any confiscation.
  
  
• Do not download the administrative headaches and huge enforcement costs from the feds and the province to the City.
  

The Committee also rejected any amendment that would allow breeders to legally acquire wild caught birds to rejuvenate gene pools, in spite of superb arguments by several deputants, including Peter Mostert, a world famous aviculturist.

Basically the Kitchener by-law will prevent anybody from acquiring or keeping wild caught parrots and other birds. They completely ignored the fact that federal legislation, WAPPRIITA allows the acquisition of certain wild caught species under strictly regulated conditions and by permit only. The City of Kitchener is going to make illegal what is otherwise legal everywhere else in Canada.

The by-law will also require you to register your prohibited birds (wild caught or the offspring of wild caught parents) with the Poundkeeper. It is not clear whether or not you will be able to keep your birds if you register them. When the Assistant City Solicitor first introduced the bylaw, she said that the City would not be required to prove that an animal is wild caught, meaning that they could confiscate and you would have to prove otherwise. When she was later asked specifically what would happen if a person did not register a prohibited animal that was subsequently found out, she beat around the bush and avoided answering the question directly. At the end of the meeting, she was given another opportunity to address the issue and would merely say that the "City has to prove its case under the Provincial Offences Act." At no time would she state unequivocally that the City will not seize existing birds.

In other words, you had better watch out in the City of Kitchener if you cannot prove that your bird is captive bred for at least six generations. Even the City Solicitor’s department does not seem to know what the effect of the bylaw will be.

There are other provisions of the bylaw that cause great concern. An "Animal Designation Appeal Committee" is going to be set up which will be able to decide what birds should be added to the prohibited list from time to time. (There is no corresponding provision to remove any from that list.) I cannot see any right thinking person voluntarily registering their birds with the Kitchener Poundkeeper in the face of the risk that they will become prohibited birds in the future and will have to be disposed of.

Furthermore, this Designation Committee will also be able to decide that birds are prohibited if they have not been captive bred for less than six generations. Although the Councillors seem to understand that it is impossible to establish what generation a bird is, they did not consider this a serious enough problem to correct it. The Assistant City Solicitor who was asked to explain this generation requirement and who drafted it, seemed at a complete loss to give any explanation that anyone could understand. She actually said that, because parrots have been kept for thousands of years, they should easily satisfy the six generation requirement!

Birds, of course, are not the only animals to be adversely affected by this by-law. A long standing Kitchener small businessman who operates a tropical fish shop told Council that his business would be completely destroyed if the wild caught provision went through because virtually all tropical fish are wild caught or bred from wild caught stock. Council’s response was basically to ignore him. We left feeling that we had lost the battle. He left feeling that he had lost his livelihood.

This is not yet a closed book although it may be a forgone conclusion. City Council still has to approve and pass this by-law and they will be doing that on October 4, just a few days away.

Although they did not get the message from the people who spoke last night, perhaps they will get the message if all of us write, fax and e-mail them our views. The very strong response that was sent to Toronto City Council was very effective and we have to do the same again here.

As in the past, make your views known very strongly but be respectful and courteous. Tell them that you want them to do the following:

• Send the by-law back to the City Solicitor for redrafting with a recommendation that the wild caught provision be removed entirely.
  
  
• If Council feels so strongly that the wild caught restriction has to be maintained, at least do the following:
  
  
• Exempt those species allowed under federal and provincial legislation.
  
  
• Grandfather all existing birds owned as of the date of passage of the by-law.
  
  
• Exempt all bona fide breeders from it.
  
  
• Get rid of the registration provision entirely and eliminate the three confusing classes; permitted, restricted and prohibited.
  
  
• Adopt a by-law modeled on the Toronto Animal Control By-Law which everyone agrees is fair and acceptable.
  

!!WE HAVE TO GET THEM TO CHANGE THEIR MINDS BY
OCTOBER 4.!!

    THE AVICULTURAL ADVANCEMENT COUNCIL OF CANADA
    PARROT SYMPOSIUM OF CANADA
    BUDGERIGAR AND FOREIGN BIRD SOCIETY OF CANADA
    PARROT ASSOCIATION OF CANADA

    Christopher Holoboff
    Barrister & Solicitor
    Suite 500 – 27 Queen Street East
    Toronto, Ontario
    M5C 2M6
    (416) 868-0878  (416) 362-5013 (Fax)  
    Choloboff@aol.com