R. v. Ojibway: impact of the &quot;pony bird&quot; on case law? 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 &amp; 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?
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).
LegalZoom did not get it wrong. The case Masterpiece Cakeshop v. Colorado Civil Rights Commission was under Colorado law (hence it was against the Colorado Civil Rights Commission), not federal law. LZ stated that 20 states have enacted laws against discrimination based on sexual orientation, and Colorado is one of those states. The issue was heard by SCOTUS because the plaintiff raised claims under the Free Speech and Free Exercise Clauses of the First Amendment, hence he could make a federal case of it. A prior case (Azucar Bakery) cited by LZ was about refusing to make a cake with anti-gay slogans, and was decided by the commission. Here is a brief filed by that plaintiff in that and two related cases, arguing a pattern of religious discrmination. LZ got it mildly wrong in saying "the court ruled that this was not discrimination because...", because the case did not go to court, it ended at the Colorado Civil Rights Commission. The second case appears to refer to Charge No. CP2018011310 a complaint filed against Masterpiece, where the same commission found probable cause for an anti-discrimination proceeding. In that proceeding, the Colorado Civil Rights Division finds that complainant Scardina "adequately shows that the Respondent's reason is pretext". This led to a complaint against the commission in US District Court (Civil Action No. 18-cv-02074-WYD-STV). There was a motion to dismiss which had partial success, but which was not about the substance of the case (it had to do with immunity, standing, abstention doctrines). The case was later dismissed, because the parties settled. So at no point did a court rule on the substance of the "pretext" issue – on this point, I think LZ overstated the significance of the commission's decision.
In the United States, I would strongly expect that an accurate depiction of historical fact (even if uncomfortably graphic) would be protected under the First Ammendment. Otherwise, the government could functionally censor the worst parts of history (as being too awful to discuss or depict), which is exactly the kind of thing the First Amendment is designed to prevent. There are three important categories of speech that are not protected: (1) "fighting words" directed at a person intended to provoke a fight, (2) words that infict emotional distress such that it qualifies as a tort, and (3) speech that court finds to qualify as "obscenity". Of these three, your game probably will not qualify for the first, since it generally requires speech directed at a specific person or people. I also suspect (less confidently) that an emotional-distress tort would not succeed since your game is not directed at any particular living people. Even if the game caused emotional distress to someone, your public release of the game probably could not qualify as a tort against that specific player who happens to experience emotional distress. The Miller test is used to determine if a work is obscenity. Wikipeida summarizes its three parts, all of which must be satisfied to constitute obscenity: Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest, Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law, Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. The first two are explicitly sexual in nature. I don't know if there is any similar prohibition against hyper-violence, but even if there were, as long as your game does not run afoul of the "lacks serious artistic value" condition, you will be on the safe side of the line. Note that none of this stops anyone from initiating legal action against you (which may cause headaches for you); it only stops those legal actions from succeededing.
I can think of three ways that your hypothetical bill could fail to become enforceable law. The Canadian Constitution contains unwritten constitutional principles. Among other things, in Reference Re Secession of Quebec [1998] 2 S.C.R. 217, the Supreme Court recognized that protection of minorities is an independent and fundamental part of the Constitution: Canadians have long recognized the existence and importance of unwritten constitutional principles in our system of government. [...] the preamble invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text. [...] the protection of minority rights is itself an independent principle underlying our constitutional order [...] The Supreme Court of Canada could rule such a law unconstitutional in order to protect minority rights. The Queen of Canada via her Governor General could decline to give such a bill royal assent, preventing it from becoming law. The Queen/Governor General can dissolve Parliament at any time to trigger an election.
Some interesting reasoning about standing aside (which antivaxxers etc. will love though, because it stipulates that the FDA refusing to collect all side effects statistics [even starting 16 years later] gives standing to sue on the original approval), the Texas' judge estimation of success on the merits is essentially relying on the finding that &quot;Pregnancy is not an illness&quot; (p. 40) and essentially repeated on p. 44 as &quot;Chemical Abortion Drugs do not provide a Meaningful Therapeutic Benefit&quot;, so that in the Judge's estimation drugs for terminating pregnancy can be held to a [much] higher safety standard than the FDA decided by itself. This ultimately phrased as (p. 57): The Court does not second-guess FDA's decision-making lightly. But here, FDA acquiesced on its legitimate safety concerns in violation of its statutory duty based on plainly unsound reasoning and studies that did not support its conclusions. It's followed by another finding that there was likely political interference by the Clinton administration with the FDA's decision. This a rather partial summary since the order involves several FDA decisions, the details of which which I'm glossing over here (like the fact that the decision to not collect all side effects stats for mifepristone is rather more recent, being taken in 2016--but nonetheless the judge found that consequently the original 2000 decision was reopened as well, and can the object of the suit too.)
Ducks are ducks, not people. It might surprise you, but even a hypothetical duck that could talk is a type of bird and is considered a waterfowl and wild game but not a person or human. As such, you can not commit any crime such as assault against it. In fact, provided that the lemonade stand owner has a hunting license and this is not in a zone where you can not hunt, such as inside a town, he could have shot the bird without repercussions - because a duck can be hunted. Threatening game birds is not covered by any law. Only would the lemonade stand owner have glued the bird to a tree he would have committed a crime, because gluing birds somewhere would be considered animal cruelty in most jurisdictions. As the duck is a bird and not a person, it can not commit any crimes, such as harassment. If a duck is a person... Assuming that there is such a place where duck is a slang term for a person, or where ducks are considered people, then the pattern is different: Such as duck would indeed perform a repeated action that is very much aimed at annoying the lemonade stand owner. But that is not necessarily legally harassment: In Germany, § 238 StGB is aimed at stalking and requires the aim of inciting fear, § 185 StGB is for insulting speech, including harassing speech, § 186 StGB is for defamation, and § 240 StGB for coercion through harassment. A charge under those would be tedious. In the United Kingdom, the English Protection from Harassment Act 1997, does not define harassment as any specific pattern. Scotland's variant reads a little simpler, and makes harassment for harassment's sake illegal. These laws might be applied to the duck. Many of the United States federal laws will simply not apply to the situation. Title VII of the Civil Rights Act of 1964 is about sexual harassment in the workplace, Title IX of the Education Amendments Act of 1972 is for schools, and the Fair Housing Act does deal with home purchases and renting. All seem inapplicable. If the threat of gluing someone to a tree is a real threat under the law depends very much again. In Germany, it might be interpreted as too hilarious to be considered a true threat, but humiliating enough to constitute one of the insult laws, but the lyrics do not offer enough facts to make a proper analysis for this part.
I think you misunderstand some of the relationships between laws, decisions, and justifications, and you're conflating two separate areas of jurisprudence. The linked real-world example you provide is happening in the employment context, but also in a government context (since it is a public school). But all the examples in your list have nothing to do with employment law and would be purely statutory/regulatory prohibitions. I will attempt to answer broadly enough to cover both domains. Laws and regulations can be challenged as discriminatory The things you have listed under &quot;decency law&quot; would be criminal or regulatory matters. A preliminary question would be whether the laws as written even capture the behaviours you've described. To the extent that they result in discrimination, the laws could be challenged as breaches of s. 15 (right to the equal protection and equal benefit of the law without discrimination) of the Canadian Charter of Rights and Freedoms. There may be other Charter arguments too, if the laws affect expression or life, liberty, or the security of the person. (Public decency / nudity laws are more frequently challenged on grounds of free expression.) Decisions of school boards are subject to the Charter The Charter almost certainly applies to decisions of public school boards and schools. See Elementary Teachers Federation of Ontario v. York Region District School Board, 2022 ONCA 476, paras. 39-41. These decisions could be challenged by judicial review (i.e. court review of an administrative decision-maker's decisions) and would be analyzed for reasonableness, including whether the decision strikes a proportionate balance between the Charter right and the statutory objectives (Doré v. Barreau du Québec, 2012 SCC 12). Even if there is an infringement, the government gets a chance to justify it If you're looking for some sort of a &quot;line&quot; it is found in the justification or reasonableness analysis. Where a law or regulation is challenged, and if a breach of s. 15 is established, then the onus is on the government to justify the breach as a reasonable limit as allowed by s. 1 of the Charter. This will depend on the importance of the government objective, whether there is a rational connection between the objective and the law, whether the law is minimally impairing, and whether the impact on the claimant is proportional to the salutary effects of the law. When a court reviews an administrative decision for reasonableness, it is &quot;engaged in balancing somewhat different but related considerations, namely, has the decision-maker disproportionately, and therefore unreasonably, limited a Charter right. In both cases, we are looking for whether there is an appropriate balance between rights and objectives, and the purpose of both exercises is to ensure that the rights at issue are not unreasonably limited&quot; (Doré, para. 6). In each of your examples, the judgments would be highly fact-based and it is fruitless to speculate about what the evidence might show. Relevance of association with minors You ask whether it would matter &quot;if the person in question was primarily associating with minors.&quot; This likely would not matter if a law was challenged, because such challenges are about the validity of the law, not the factors that might render its applicability to a particular person to be more or less justified. But if the law itself had the purpose of protecting children, or if the law itself was targetted solely at those associating with minors or those in positions of authority over minors, this would be a factor weighing in favour of justification of the infringing law (Irwin Toy, R. v. Sharpe). Whether the person in question was primarily associating with minors would matter in the context of an administrative decision, because these decisions are case-specific. Some anti-discrimination statutes provide more protections Ontario's Human Rights Code potentially contains even further protections. Section 5 says that every person has a right to equal treatment with respect to employment without discrimination because of sex, gender identity, gender expression, and other enumerated factors. Section 24 provides for exceptions to that right in educational settings (and some others) where what would otherwise be discrimination is actually a bona fide qualification of the employment and if it cannot be accommodated without undue hardship on the employer. These judgments are also highly fact-based and it would be fruitless to speculate about what the evidence might show.
Ultimately this raises a question of balancing two fundamental rights: The right of the accused to a fair trial within due process of law &amp; the right to freedom of expression (or in the case of press publications as in most of the cases cited by this answer, the very related freedom of the press). Both the US &amp; Canada safeguard these rights in their constitutions (Amendments I, V, XIV &amp; Charter ss. 2(b), 11(d) respectively) so any differences would be in their approaches to balancing these rights. United States I've found Some Aspects of the Law of Contempt of Court in Canada, England, and the United States (Jacob S. Ziegel, 1960) to be highly informative on the historical development of contempt of court and provided a good baseline understanding. In reference to Bridges v. California 314 U.S. 252 (1941), it states Although the Court recognized that &quot;free speech and fair trials are two of the most cherished policies of our civilization&quot; and that &quot;it would be a trying task to choose between them&quot;, it held nevertheless that an abridgment on the freedom of the press was only permitted by the Constitution when there was &quot;a clear and present danger&quot; that the offending publication would actually interfere with a fair and impartial trial. The majority opinion rejected the &quot;reasonable tendency&quot; test which had been applied by the lower courts, and still is the yardstick by which such publications are measured in England and Canada. I'd also like to quote the following paragraph from Bridges as it raises two points I'd like to comment on: What finally emerges from the &quot;clear and present danger&quot; cases is a working principle that the substantive evil must be extremely serious, and the degree of imminence extremely high, before utterances can be punished. Those cases do not purport to mark the furthermost constitutional boundaries of protected expression, nor do we here. They do no more than recognize a minimum compulsion of the Bill of Rights. For the First Amendment does not speak equivocally. It prohibits any law &quot;abridging the freedom of speech, or of the press.&quot; It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow. The first point is that due to its broad language, the court gives a certain priority to the First Amendment. The second point involves the age of my citations: the &quot;clear and present danger&quot; test is from Schenck v. United States, largely considered to be overruled by the more stringent Brandenburg v. Ohio 395 U.S. 444 (1969) &quot;immediate lawless action&quot; test. This does raise the question of whether Bridges can then be considered good law. I unfortunately can't find any good references discussing Bridges in a post-Brandenburg context, however, I would argue it is still valid. While the Schenck test has been overruled, the Bridges citation I gave in fact foreshadows the Brandenburg test by using the language of &quot;imminence&quot; and stating the Schenck test was not necessarily the limit of the First Amendment, but just a minimum bar. I would then argue that Bridges can quite easily be considered good law by simply substituting the Schenck test with the Brandenburg one without really affecting the court's ratio decidendi. Canada Ziegel's article is even more out-of-date when it comes to Canada as it is pre-Charter. For a modern Canadian overview of out-of-court contempt of court I've found A Comment on &quot;No Comment&quot;: The Sub Judice Rule and the Accountability of Public Officials in the 21st Century (Lorne Sossin &amp; Valerie Crystal, 2013). The article cites Dagenais v. Canadian Broadcasting Corp. [1994] 3 SCR 835 as directly tackling the balance of these rights. In it the court acknowledged the pre-Charter common law of giving deference to the accused's right to a fair trial, but noting that the Charter now requires a balancing of these rights The traditional common law rule governing publication bans -- that there be a real and substantial risk of interference with the right to a fair trial -- emphasized the right to a fair trial over the free expression interests of those affected by the ban and, in the context of post-Charter Canadian society, does not provide sufficient protection for freedom of expression. When two protected rights come into conflict, Charter principles require a balance to be achieved that fully respects the importance of both rights. A hierarchical approach to rights must be avoided, both when interpreting the Charter and when developing the common law. The common law rule governing publication bans must thus be reformulated in a manner that reflects the principles of the Charter and, in particular, the equal status given by the Charter to ss. 2(b) and 11(d). Ultimately, the court concluded that a balance of these rights was the following test: A publication ban should only be ordered when: (a) Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) The salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban. While Dagenais more clearly explains the balancing of these two rights, the article also cites R. v. Vermette [1988] 1 SCR 985 which is a much more similar situation to Maxine Waters commenting on an ongoing trial. The article summarizes as follows: While the trial was ongoing, the premier of Quebec, René Lévesque, denounced one of the defence witnesses in the National Assembly, despite warnings by the Speaker that such comments would be prejudicial to the accused. The trial decision even contains the following comment from the judge: When speaking in the National Assembly, however, the Premier enjoyed the privilege of Parliamentary immunity. Had it not been for this immunity, he could have been cited for contempt of court. Comparison At a constitutional level, it can be seen that the balancing of these two rights are not the same in the US and Canada. The US gives much greater weight to freedom of speech, while Canada allows restriction of speech if doing so more greatly benefits another Charter right and there is no reasonable alternative. On a practical level, there are also differences in how jury trials are run, maybe even as a direct result of the constitutional differences. In Dagenais, the court quotes the following: Generally speaking, however, the approach taken in the United States seems to be to allow for the widest possible latitude in media reporting of events transpiring prior to and during the course of the trial of an accused person. This is counterbalanced, in the interests of ensuring an impartial and unbiased jury, in a number of ways including, during the jury selection process, by an often searching examination into the attitudes, biases and even the personal and financial affairs of potential jurors and, after the jury selection process has been completed, by the sequestration of the members of the jury while the trial is in progress to reduce the risk of their exposure to the media and other publicity generated by it. In Canada, by contrast, the process of jury selection is neither as prolonged nor as exhaustive as a general rule; indeed the kind of questioning and probing into the affairs of potential jurors that is sometimes seen in the United States would be unlikely to be permitted under our system. Moreover, in Canada the sequestration of jurors throughout a trial occurs only exceptionally. The strong bias of our system is to prevent the dissemination before the conclusion of the trial of media publicity that might be prejudicial to the accused's fair trial. The US &amp; Canada simply follow different constitutional approaches here and have slightly different priorities when it comes to balancing rights.