In Regina v. Ojibway (8 Criminal Law Quarterly 137 (1965-66)), a Canadian case, a member of the First Nations of Canada had relieved a wounded pony of his suffering by gunshot and was accused pursuant section 2 of the Small Birds Act (R.S.O.). The case was initially dismissed and went on appeal. Blue, J., delivers the opinion for the court, granting the appeal, saying:
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 intention of the legislature, I am certain that the phrase “naturally covered” would have 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 purpose of this Act to be a bird, a fortiori, a pony with feathers on its back is a small bird.
You see, the impoverished accused had traded his saddle for a downy pillow... Some 15 years later, the case is cited in a footnote in U.S. v. Byrnes (644 F.2d 107 (2d Cir. 1981)), a case about rare birds smuggling. The note is referenced at the end of this part of the judgment (Mulligan, J., N.Y):
Therefore, the point [registration] was made and her conceded ignorance of the Migratory Bird regulations hardly establishes that she didn't possess the swans which she didn't consider birds in any event. [footnote 9].
The note begins with the following introduction: ' For a liberal construction of the term "birds," by a Canadian court see [Ojibway] ' and goes on to quote the case as I did above. The case doesn't rely on/follow Ojibway; it simply says in a note, that a statute on birds can receive a liberal construction elsewhere.
But still, the issue is that Regina v. Ojibway is not a real case: it is a parody (Pomerantz & Breslin, The Canada Law Book Company, 1965-66), yet a clever(2) and convincing one as history shows. One could say the "case" is an educational tool exploring the canons of statutory construction; and the impact of legal language, expectations about the adjudication process and authority, on perception. Primeaux J. (Mississippi) discussed the joke some years ago (Revenge of the Pony Bird, 2013); someone told him a book from 1997 about wildlife law seriously referenced the case (as being cited in Byrnes) in its introduction, albeit to mention it as a bizarre result from trying to ascertain what is wildlife. In his discussion, however, he does not say whether he thinks Mulligan J., who did not label the case as fiction in 1981, actually went through the "whoosh" himself like he says. Hence this question about sources and damage control, some 50 years after the pony bird:
- Is Regina v. Ojibway (or Ojibway v. R.) referenced without mention of it being fictional in any other case law (in the U.S. or elsewhere i.e. U.K)?
- Are there any other such fictional cases which are notorious for having been seriously referenced (by courts, legal scholars) like Ojibway was in Byrnes?
- What mechanisms (rules of practice, institutional), if any, are in place to prevent reliance on such (fictional) cases? Why has peer review seemingly been unable to outdo the authority of legal reporting/law reviews in this case (as surely there is no trace of the case at the courthouse)? Or is it common knowledge in the field that Ojibway is fiction at this point?