The Literal Rule of Statutory Interpretation... (1 Viewer)

[Frigid]

REGINA V. OJIBWAY
(1965) 8 Criminal Law Quarterly 137
Supreme Court, 1965

Blue J: This is on appeal by the Crown by way of a stated case from a decision of the magistrate acquitting the accused of a charge under the Small Birds Act RSO., 1960, c 724, s 2. The facts are not in dispute. Fred Ojibway, on Indian, was riding his pony through Queen's Park on January 2, 1965. Being impoverished, and having been forced to pledge his saddle, he substituted a downy pillow, in lieu of the said saddle. On this particular day the accused's misfortune was further heightened by the circumstance of his pony breaking its right foreleg. In accordance with Indian custom, the accused then shot the pony to relieve it of its awkwardness.

The accused was then charged with having breached the Small Birds Act, s2 of which states:
2. Anyone maiming, injuring or killing small birds is guilty of an offence and subject to a fine not in excess of two hundred dollars.

The learned magistrate acquitted the accused holding, in fact, that he had killed his horse and not a small bird. With respect, I cannot agree.

In light of the definition section my course is quite clear. Section 1 defines 'bird' as 'a two-legged animal covered with feathers'. There con be no doubt that this case is covered by this section.

Counsel for the accused made several ingenious arguments to which, in fairness, I must address myself. He submitted that the evidence of the expert clearly concluded that the animal in question was a pony and not a bird, but this is not the issue. We are not interested in whether the animal in question is a bird or not in fact, but whether it is one in law. Statutory interpretation has forced many a horse to eat birdseed for the rest of its life.

Counsel also contended that the neighing noise emitted by the animal could not possibly be produced by a bird. With respect, the sounds emitted by an animal are irrelevant to its nature, for a bird is no less a bird because it is silent.

Counsel for the accused also argued that since there was evidence to show accused had ridden the animal, this printed to the fact that it could not be a bird, but was actually a pony. Obviously this avoids the issue. The issue is not whether the animal was ridden or not, but whether it was shot or not, for to ride a pony or a bird is of no offence at all. I believe counsel now sees his mistake.

Counsel contends that the iron shoes found on the animal decisively disqualify it from being a bird, I must inform counsel, however, that how on animal dresses is of no concern to this court.

Counsel relied on the decision in Re Chicadee, where he contends that in similar circumstances the accused was acquitted. However, this is a horse of a different colour. A close reading of that case indicates that the animal in question there was not a small bird, but, in fat, a midget of a much larger species. Therefore that case is inapplicable to our facts.

Counsel finally submits that the word 'small' in the title Small Birds Act refers not to 'Birds' but to 'Act', making it The Small Act relating to Birds. With respect, counsel did not do his homework very well, for the Large Birds Act, RSO 1960, c 725, is just as small. If pressed, I need only refer to the Small Loans Act RSO 1960, c 727 which is twice as large as the Large Birds Act.

It remains then to state my reason for judgment which, simply, is as follows: Different things may take on the some meaning for different purposes. For the purpose of the Small Birds Act, all two legged, feather-covered animals are birds. This, of course, does not imply that only two-legged animals qualify, for the legislative intent is to make two legs merely the minimum requirement. The statute therefore contemplated mufti-legged animals with feathers as well Counsel submits that having regard to the purpose of the statute only small animals 'naturally-covered' with feathers could have been contemplated. However, had this been the intention of the legislature, I am certain that the phrase 'naturally covered' would hove been expressly inserted just as 'Long' was inserted in the Longshoreman's Act.

Therefore, a horse with feathers on its back must be deemed for the purposes of this Act to be a bird, and, a fortiori, a pony with feathers on its back is a small bird.

Counsel posed the following rhetorical question: If the pillow had been removed prior to the shooting, would the animal still be a bird? To this let me answer rhetorically: Is a bird any less of a bird without its feathers?

[Appeal allowed.]

ahhh, the humour of law

 

[Lexicographer]

I wonder if such an appeal would be allowed today. I suppose it's important in that it helps challenge poor definition and unexpected arguments.

 

[Frigid]

I wonder if such an appeal would be allowed today. I suppose it's important in that it helps challenge poor definition and unexpected arguments.

errr... Lexi, it was a fictitious report to show the lighter side of the literal rule used to its most literal extent.

Blue J = bluejay, get it?

 

[Lexicographer]

errr... Lexi, it was a fictitious report to show the lighter side of the literal rule used to its most literal extent.

Blue J = bluejay, get it?

Hmm I didn't know that. I suspected it the whole way through, but who am I to decide what's real and what isn't?

 

[honky tonk]

It probably wouldn't surprise me if it wasn't fiction. Crazy law.

 

[santaslayer]

I haven't seen such literal interpretations in real life law cases. Not to that extent anyways. I'm a noOb but, so I'm in no position to raise any challenges.

On another (but similar) note, the martial arts federation (or whatever you call it) is appealing to the government (or related authorised body) on the decision to ban knives/blades from the wider community through the implementation of new legislation. This will have a detrimental affect on the martial art practicioners of Australia as they will need to practice their skills for the anticapated 2008 Bei-jing Olympic Games.
Their argument, (aside from the obvious detrimental impact), is that the weapons used in most martial arts are not blades/knives, but foils. It would be interesting to see the outcome.

 

[hornetfig]

This, of course, does not imply that only two-legged animals qualify, for the legislative intent is to make two legs merely the minimum requirement. . . . However, had this been the intention of the legislature, I am certain that the phrase 'naturally covered' would hove been expressly inserted . . .

Looks like a parody on statutory interpretation in general (the legal system/the bench in general?) rather than the limitations of literal interpretation.