Regina v Ojibway (1965) 8 Crim.L.Q. 137-139 (Canada)
- The Case Of The Small Bird (fictional)
Blue, J.: - This is an 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, R.S.O., 1960, c.724, s.2. The facts are not in dispute, Fred
Ojibway, an 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 accord with the 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, s.2
of which states:
"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 can 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 that 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 contented 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
the accused had ridden the animal, this pointed 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
an 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 fact, 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, R.S.O. 1960, c.725, is just as
small. If pressed, I need only refer to the Small Loans Act R.S.O. 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 same 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
multi-legged animals 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
have been expressly inserted just as "Long" was inserted into the Longshoreman's
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