dragon@eleazar.dartmouth.edu (Sam Conway) (03/15/90)
REGINA v. OJIBWAY
8 Criminal Law Quarterly 137 (1965)
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 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
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:
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
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 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 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 is 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 that 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 to refer to the Small Loans Act, R.S.O. 1960, c.727
which is twice as large as the Large Bird Act.
It remains then to state my reason for judgement 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 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 intent of the legislature, I am certain that the phrase
"naturally covered" would have been inserted just as "Long" was inserted
in the Longshoreman's Act.
Therefore, a horse with feathers on its back must be deemed for
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.
Reported by: H. Pomerantz
S. Breslin
Reprinted from the Canada Law Book, Ltd., 240 Edward Street, Aurora,
Ontario L4G 3S9, Canada.
8-)
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