Formalism Gone Mad

A few weeks ago, in one of my Legal Studies units, we were looking at Formal vs. Substantive, where Formal is the rules applied, with no consideration of extenuating circumstances, or even giving any weight to any kind of circumstance, actually. Substantive is where there is a consideration of the circumstance in which the crime/event occured.

Anyway. My wonderfully humorous unit coodinator put this up on our unit materials board. It amused me greatly.

... And to think, it actually happened...

IN THE SUPREME COURT

REGINA v. OJIBWAY

Blue, J. August, 1965

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 circumstance of his pony breaking its 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 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 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 consequence to this court.

Counsel relied on the decision in Re Chicadee, where he contends that in similar circumstances the accused was aquitted. 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 judgment 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 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 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.

Throwing Stones

Don't talk to me about missing people if you're going to belittle me, say - "Aww, that's cute" - or tell me that the feeling will pass or I don't know what it really feels like to miss someone.

Because if you do, you're full of sh*t.

I left my life in the country to go to our capital city 600kms away, to go back to school from homeschooling, to a whole new life where I knew no-one at all, at the age of15. I'd never been to a school that big before, or had to take public transport. A train that goes between suburbs? That's nuts. And scary coming from somewhere that you could ride, on a bicycle, across town and it was about 30 minutes depending on the weather. I only went to the city twice or three times a year and even then it was just passing through on the way to a town on the other side.

I knew that I wouldn't see my family for a few months at least. I knew what it was like to feel completely alone, to feel physical pain because you miss your parents and siblings, so much that you can't breathe, can't eat, can't sleep. When you really miss someone, you know about it. It manifests itself physically and painfully. That ache in your chest like you're going to cry, but not quite. That feeling that you've forgotten something, forgot to put your shoes on, that something isn't right. It's real.


A while ago now, I'd just discovered that I was working on the evening that my boyfriend and I had planned to spend together and I couldn't find anyone to cover or shift-swap for me. Now, this was a big deal because at the moment my man and I live about 80kms away from each other, he in the city and me outside the metropolitan area, and although from my uni to his place is a 15 minute drive, we see each other only once a week, usually a set weeknight, last semester was monday nights. So I'd go to his place after uni, we'd talk a bit and have tea, watch a movie if we weren't too tired, and then go to bed. I'd get up in the morning when he woke me as he left for work and that's the only time we'd see each other.

Every moment is precious.

I told the girls at work that last statement and their response was 'Aww, how cute'. I wanted to slap them. I miss my boyfriend, I care deeply about him and we're really close, we've been together well over a year now and seeing each other once a week is difficult. We miss each other and feel it physically. The more stressed I am the more it hurts.

Our relationship is such that we talk more with slight gestures, our eyes, body language, that we don't need to talk to express what we're trying to say, and it's comforting to have someone like that. (I don't mean sexually, I mean in general.) We'll be sitting at a cafe and if one of us wants to leave, the other will know instinctively, even if our mates have no idea. It's hard to be apart when we can't really "talk" as such. I don't understand how or why we interact like that, but it works.

That aside... When I found out that I would probably not see him for a couple of weeks at least, my chest ached, I had a headache within about 20 minutes, and my throat was a bit constricted. One of the girls asked what was wrong and I said that I just missed him. She said that we're only young (those of you that know how old my partner is will find that amusing)... And that it'll pass. Ha.* When I was younger, dad went over east, or to Perth, or something, for a conference or to see family. Mum didn't sleep very well and seemed a little "out of it". They've been married for over 20 years now, and that "I miss you" thing, it hasn't changed.

Now, I know that this post may seem hypocritical where one of my previous posts is about having your own life and not relying on your partner, but to those among you that read this properly, will know that this is different. This is where you have a connection with a person, where they're a big part of your life, like your family. You aren't constantly around them, and you do your own thing, and that's cool, but you miss them when you're apart for an extended period of time (or when you know that they're only 15 minutes away every single day you're at uni but they're working and you're studying!). It's when your boyfriend isn't just your boyfriend because-he-looks-hot-and-kisses-well-and-is-smart-and-funny, it's when the relationship deepens and he becomes your best friend as well as your lover, your family, your confidante, and someone who knows you sometimes better than you know yourself... And you miss them like you miss having tickle fights with your sisters and brothers, or the company of someone while you're lying on the trampoline looking at the stars/clouds...

Idle chatter or silence.

Just comfortable companionship.


* - NOTE: I acknowledge that there are people that don't see their husband/wife/girlfriend/boyfriend for months on end, and I have so SO much respect for people that have the strength to do that. It's incredible, and a week seems like so little for those that have to endure that length of time apart..