International Law

R. v. Smedley

Having a bit of fun with statutory interpretation (pdf file). Mr. Smedley and Ms. Parker kept 13 chickens in a shed on their property in a residential neighbourhood, in violation of a Halifax by-law prohibiting keeping “livestock” (including “fowl”) in an “accessory building.” But these weren’t just any chickens! They were more akin to family pets. Nor was the accesssory building in this case just some old chicken coop:

On the property is a chicken coop. That term does not do the structure justice. It was designed and constructed by Mr. Smedley and Ms. Parker. It cost $2500.00 to build. It is both aesthetically pleasing and provides a comfortable environment for their pets. It is not what comes to mind when the phrase chicken coop is used. It is not the large industrial operation where hens are often kept in uncomfortable conditions to maximize egg production and minimize cost. Nor is it the unpainted tumbledown shed that can try the patience of even those rural neighbours who are enured to the common and sometimes unpleasant odours of the barnyard. Far from it.

The coop is about 100 feet from the nearest property line. It is immaculately clean.

The chickens spend most of their days outside the coop but are kept locked inside at night to protect them from predators.

These chickens eat high quality feed, insects and plants and treats such as would be given to a loved family pet.

They have been nursed back to health when they were ill and it is the intention that they be kept until the end of their natural lives, some considerable time after they have stopped laying eggs.

They are ?heritage breed? chickens chosen for their aesthetic qualities and their temperament. They were brought from Quebec at considerably higher cost than acquiring chickens locally.

…

In summary, the chickens kept by this family are pets. They are in virtually every way inoffensive. There is no evidence that they are now creating excessive or even noticeable noise. There is no offensive odour. The way in which they are kept is not unsightly. The chickens remain on their own property seemingly doing no harm to either the aesthetic qualities of the neighbourhood nor to the quiet enjoyment of the property of the immediate neighbours. As compared to some other activities that might be legally undertaken on a residential property, the keeping of these pet chickens seems relatively benign. No allegation has been made and no evidence has been adduced to suggest that these chickens attract vermin.

Surely it would be heartless to call these feathered members of the family mere fowl?

Alas, despite the urging of the appellants that the Court take a “purposive approach” to the interpretation of the word “fowl,”

Making a finding that for purposes of this bylaw, certain chickens are not fowl would be a brazen affront to whatever semantic certainty and consistency the language can claim. A purposive approach to interpretation does not allow for interpretations that set dictionary definitions and common usage both on their heads.

…

The bylaw uses the word ?fowl?. Can fowl be interpreted, using a purposive approach, as including commercial and noncommercial chickens but not pet chickens? The word fowl is variously defined as including all birds, or domestic chickens, or domesticated and wild gallinaceous birds. Gallinaceous birds are heavy bodied largely ground feeding wild or domestic birds.

Nothing in the definition of fowl makes a distinction among the uses to which the birds are put. The domestic chicken and the wild turkey, as well as many other birds, are included in the classification. They are fowl whether they are kept for commercial production, for home consumption, for show, for pleasure or are in fact wild birds. Whether a bird is or is not a fowl does not depend on the use to which it may be put or the manner in which it is kept.

Bottom line:

Chickens are fowl. My unhallowed hands will not disturb the definition. That is not so much a matter of interpretation as a matter of linguistic or perhaps zoological fact. To find otherwise would be to succumb to the temptation to rewrite the legislation to fit a particular view of public policy, or to adjust the balance between certainty and flexibility.

On any definition chicken are fowl. To find otherwise would take the word not only beyond its plain meaning but far beyond it. To justify that would require that the injustice worked by the application of the bylaw be considerable. While this situation is unfortunate, the result arises from the level of certainty sought by the drafters of the legislation. It is not the role of the court, in these circumstances, to rework that balance of certainty and flexibility or to engage in the debate about the desirability of chickens in an urban environment.

Full post as published by Criminal Review on March 10, 2008 (boomark / email).