Horse is a Bird!
Fred Ojibway, an Indian, was riding his pony through Queen's Park on January 2, 1958. 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 Ojbway'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: - "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 horse and not a small bird. An appeal was preferred to Mr. Justice Blue's Court.
Blue J.: With respect, I cannot agree, with the Learned Magistrate. In light of the definition section my course is quite clear. Section 1 defined "bird" as "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 an issue. We are not interested in whether the animal in question is a bird or not in fact, buy whether it is one in law. Statutory interpretation has forced a horse to eat birdseed for the reset of its life!
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 as 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 then 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, 727 which is twice as large as the Large Birds 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."
From Criminal Law Quarterly of Canada.