When Courts Construe Contracts & Statutes; & Why Lawyers Do Not Guarentee An Outcome

We have heard since grammar school that this nation is governed by laws, not men/women. What this means is that the law is to be equally applied to similar circumstances irrespective of a person’s status, wealth, etc.

But while the written law is to be followed, is the men and women of the judiciary who decide what the writing means, whether the writing is a contract or is a statute or an ordinance.

And that’s when humanity gets in the way.

Day after day clients and prospective clients seek reassurance on the quality of their case, insisting upon an accurate estimation of the chance of success. Of course, success in proving or disproving a particular fact is dependent upon the evidence; the application of one law or another, however, is dependant upon the Judge. And it is these Judges who contain the human element.

For example, one day Mr. Ojibway entered a Toronto lawyer’s office facing criminal charges for shooting his horse. The charges, however, were that Mr. Ojibway killed a small bird, not a horse. So under these circumstances, one could be fairly assured of guaranteeing an acquittal. But can we ?

Thus the case of Regina v. Ojibway (Toronto, 1965-1966) 8 Criminal Law Quarterly 137. This case is not real, it was written by the law clerks who worked in the Criminal Courts building in Toronto. It only takes a few minutes to read, but you will forever be enlightened:

“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 circumstances 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 offense 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 it was shot or not, for to ride a pony or a bird is of no offense 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 judgement which, simply, is as follows: Different things may take on the same meaning for different purposes. For the purposes 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, 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 a bird without its feathers?”

Clients sometimes become frustrated that attorneys will not guarantee the outcome of litigation claiming: “If I have such a good case, why can’t you assure me that we will win?”.

As per Regina v. Ojibway, how could we possibly guarantee an outcome in any case?