R. v. Ojibway: impact of the "pony bird" on case law?

Question

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.

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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?

Answer 1

Here are the opinions I found which do not explicitly state that Regina is fictitious.

University of Utah Hospital and Medical Center v. Bethke, 611 P.2d 1030, 101 Idaho 245 (Idaho, 1980)

...in my judgment, the majority seriously errs in using an esoteric, artificial and strained construction of the phrase "in Idaho" to hold that the legislature intended that phrase to mean "outside Idaho."

When confronted with such linguistic legerdemain, I cannot but recall the unreported case of Regina v. Ojibway, 8 Crim.L.Q. 137 (Toronto 1965), wherein the court converted a pony, fortuitously saddled with a feather stuffed blanket, into a small bird, thus falling within the provisions of the Ontario Small Birds Act.

Midland Management Co. v. Helgason, 630 N.E.2d 836, 158 Ill.2d 98, 196 Ill.Dec. 671 (Ill., 1994)

Justice HEIPLE, dissenting:

This case illustrates the resourcefulness of the judicial mind when confronted with the application of a rule of law which produces a result deemed to be undesirable. The straightforward approach to such a dilemma offers but two possibilities. The first option is to apply the law to the case and let the painful result occur. The second option, available to a court of last resort at least, is to change the rule of law. Make a new one. However, if neither of these two options is attractive, the resourceful judicial mind has yet a third option. It can redefine the terms so that the rule does not apply to the case at hand. This approach was chosen by the majority in the instant case.

The application of this technique is well illustrated and perhaps reached its zenith in the Canadian case of Regina v. Ojibway, 8 Criminal Law Quarterly 137 (Toronto, 1965) in an opinion rendered by Blue, J.

Doe v. See, 557 F.3d 1066 (9th Cir., 2009)

We hierophants of the law are adept at redefining ordinary concepts, but it is no more appropriate to declare that religious services are commercial activities than it would be to declare that ponies are small birds. See Regina v. Ojibway, 8 Crim. L.Q. 137 (Oct. 1965).

Retail Flooring Dealers v. Beaulieu of America, 339 F.3d 1146 (9th Cir., 2003)

Again, this creation of an intracircuit split is obscured with a fuliginous cloud made up of the conceit that the attorney here (allegedly unlike the attorneys in Estate of Bishop and Cabrera) is truly a party. It comes as no surprise to me that the legal mind is perfectly capable of reaching a result by declaring a non-party to be a party, just as it can declare a pony to be a small bird. See Regina v. Ojibway, 8 Crim. L.Q. 137 (Oct. 1965). While I am often taken by, sometimes even filled with admiration for, manifestations of scholastic mental agility, I think that agility is frequently misdirected. It is here. Thus, I respectfully dissent.

Pendleton v. Pendleton, 531 S.W.2d 507 (Ky., 1975)

This one is different because the asterisk points to another case which identifies Regina as "entirely fictional."

It is readily apparent that the meaning of the equal protection clause cannot be ascertained from what it says, nor even from what the Supreme Court has said about it. As in Regina v. Ojibway* a pony was found to be a small bird, so under the 14th Amendment an illegitimate child may be either a speckled bird or a jackass, depending on its current aspect as (and when) viewed by the keeper of the royal secrets of the Constitution. Indeed it appears that here is a corner of the world Alice in Wonderland would not find unfamiliar.

Here is a case which refers to Regina and acknowledges that the case's fictitious nature is not always understood.

U.S. v. Van Fossan, 899 F.2d 636 (C.A.7 (Ill.), 1990)

See also Regina v. Ojibway, 8 Crim.L.Q. 137 (1965), convicting a person under the Small Birds Act, despite the fact that the animal involved was a horse and the defendant was unaware that Ontario defines horses as birds. (The horse in question was an animal "covered with feathers" because its rider used a pillow as a saddle. Although it is a tour de force of statutory "construction", Ojibway is mercifully fictitious, something not always understood. United States v. Byrnes, 644 F.2d 107, 112 n. 9 (2d Cir.1981).

Answer 2

Read the whole opinion. It's pretty clear the judge was having some fun with it. Judges do this from time to time. When someone involved in the case didn't consider seagulls, ducks, or geese to be birds, and the judge is writing a humorous opinion, he'll pick up on that, and a joke about horses with down pillows on their back counting as birds is a natural response to someone who's heard of the parody.