Imaginary Law Cited as Actual Authority by Modern Appellate Court

By Nick Levinson

The published opinion in Regina v. Ojibway referencing a horse and the Small Birds Act made the rounds decades ago and may still be. Authorship was credited to Blue, J. It continued in the same spirit. I came across it in a law textbook on real estate law, in which the book author asked for the reader’s (usually law student’s) response to the case. I had already come across it, but as humor, and had written to the court’s or court system’s chief judge asking for more, probably making my own stab at humor. I received a reply from or on behalf of the chief judge to the effect that the real author was a part-time lawyer and part-time actor. I notified the realty text author and he responded that he knew it was fictional but thought to have fun with the students. The opinion distinguished between an act about small birds and a small act about birds and used that and other views to arrive at a result the purported plaintiff might not have anticipated.

Believed as Really True?

This reached reality beyond a textbook omitting a label. A U.S. court of appeals cited it as authority in a real case. U.S. v. Byrnes, 2d Cir. (1981), 644 F.2d 107, at 112 n. 9 (reprint). (The court cited Ojibway as authority for “liberal [statutory] construction”.) Perhaps the judge, while sprinkling a few turns of humor elsewhere in the opinion, cited Ojibway knowing it to be invented, but, a hint of such knowledge apparently being absent and citing Canadian law as authority for U.S. law being legally hazardous absent a chain of authorities probably tracing through English common law’s ancestors and descendants in all three nations, I think it likelier the U.S. Federal judge did not know how to tell Canadian cases apart for being real or not.