Apparently you can be prosecuted if your swan won't migrate

An Erin, Ont., man faces prosecution because the swan on his property won't leave.

Brutus the swan is breaking the law.

As a migratory bird, he should, by law, be migrating. But instead Brutus is camped out at a fish pond in Erin, Ont., about 75 kilometres northwest of Toronto.

There Brutus lives a comfortable, solitary life nibbling on fish food and chasing away intruders, from blue herons and wood ducks to people who wander too close to his home pond.

Brutus the swan and Lou Maieron, the owner of Silver Creek Aquaculture. Maieron is showing Brutus the Crown's charges against him. (Fred Langan/CBC)

He seems content but the federal government is not happy with this situation and has spent thousands of dollars prosecuting Lou Maieron, the owner of Silver Creek Aquaculture, a fish hatchery where Brutus has taken up domicile.

Indeed, the Crown launched an appeal after a judge stayed the first set of proceedings in the case.

"The charge is that I am keeping a migratory bird without a permit," says Maieron, the only human who can come close to the big swan. "But that's wrong. Brutus is free to leave at any time."

Environment Canada, however, disagrees. It says Maieron is keeping a wild bird as a pet and that, at the very least, he needs a licence.

At this point, it may take a fourth set of court appearances to straighten this all out.

On appeal

The government first took Maieron to court in June 2009, charging that he did "unlawfully possess a live migratory bird" thus breaking the Migratory Bird Act.

A justice of the peace dismissed the case (after learning that the Crown was intending to call a second witness, another wildlife officer, who had been in the court while the first wildlife officer had testified).

The feds appealed and a second judge in Guelph, Ont., ruled the prosecution was flawed and probably a waste of time.

But in July, in a courtroom in downtown Toronto, another judge granted the feds a leave to appeal the lower court ruling.

Lou Maieron will tell anyone who will listen that all this is a colossal waste of prosecutors' time and the government's money.

He says the feds only found out about Brutus, who was going about his business, because an inspector from another government department was visiting, spotted the swan and tipped off a wildlife inspector.

By then, Brutus had been hanging out on the Maierons' property for almost five years.

Not your nicest swan

Brutus (the government never uses the name) seems tame, but only to Lou Maieron.

Visitors have to be especially wary in nesting season. An angry swan can do a human serious damage, breaking bones with its armoured wing or strong beak.

Diet: Mute Swans eat aquatic plant material, grasses, and waste grain. They also eat insects, snails, and other small aquatic creatures.

Nesting: Mute Swans usually form pairs at the age of two, but do not start breeding until their third or fourth year. The female performs most of the incubation of the four to six eggs, although the male will step in and allow the female to take breaks for foraging. The young begin to fly at four to five months but usually remain with the parents through the first winter.

Migration Status: Non-migratory in North America, Mute Swans may make short-distance, seasonal movements dictated by the weather.

Source: Audubon Society of Seattle

A male mute swan, which is what Brutus is, has a wingspan of 2.5 metres and weighs as much as 12 kilograms. It dwarfs a Canada goose and is much more aggressive.

"Sometimes their behaviour is so aggressive that they will drive other waterfowl out of areas where the swans are nesting," says the New York state Department of Environmental Conservation.

"Reports of swan attacks on people, especially small children and users of personal watercraft, are common."

Even though Brutus is a recent bachelor, he is big and does not take kindly to invasions of his personal space.

"He attacked a truck once and broke his leg," says Maieron. "I had to bind it up for him."

Perhaps that is another reason why Brutus has grown so attached to the place and to Lou Maieron.

He is the only human who can come so close that he can stroke Brutus's long neck, evoking, even from a mute swan, what sounds like a purr.

An invasive species

Mute swans are not native to North America but to Europe. They are pure white, large and gorgeous so they were introduced a little more than a century ago in New York state to beautify the ponds of the rich.

Now, however, they are considered "an invasive species" in New York and, sometimes, a big nuisance in cities like Toronto where they drive other large waterfowl off their nests and uproot underwater vegetation.

Ottawa's royal swans swim in the Rideau River. The birds are descendants of six pairs of mute swans given to the city in 1967 by the Queen. They are taken inside for the winter, into a facility that activists say is inadequate. (CBC) ((CBC))

"That's another reason I am fighting this," says Maieron. "This is an introduced species, not a native migratory bird.

"If I have to have a permit for this bird then I have to have a permit for every bird that visits here, most of which I don't want because they eat my fish. Some of them sometimes spend all winter here."

Brutus first flew into the fishponds just outside the village of Erin in November 2005 with another swan, his mate.

She flew off and left him, but Brutus stayed, attracted by the 15 fish ponds at the trout hatchery that are kept open by bubbling springs all year round.

"Home of the happy fish and the pond professor," is how Maieron answers the phone.

He has been operating his fish hatchery since 1985, just after he graduated from the University of Guelph with a degree in fisheries biology. Springs at the headwaters of the Credit River feed his ponds with cold water that trout thrive in.

Many of his customers are local people who stock their own ponds with brown, rainbow and speckled trout from the hatchery. The fish are netted then put in a plastic bag that is given a shot of oxygen so the fish can breathe on the short trip to their new homes. 

Brutus watches these transactions from a discreet distance, unaware of the legal turmoil he has caused.

While Maireon waits for the date of his possible trial, Brutus lives his own version of a migratory life, moving from pond to pond, bottom feeding, munching on floating algae and gorging on the occasional morsel of fish food.