“That’s the letter U and the numeral 2”

The cover of the now-notorious Negativland “U2” EP

With the recent passing of Casey Kasem, known primarily in the US as the voice of the “American Top 40” radio countdown and as the voice of Shaggy in the “Scooby-Doo” cartoons, I thought of one of Kasem’s more notorious outings, and one that was an early example of current hot-button topics such as copyright, fair use (an American term, sure, but increasingly close to Canadian-style fair dealing), and transformative use.

Long before law and librarianship beckoned as potential career paths, I really, really wanted to be involved in either film or television, and as part of a high school co-op program, I secured a placement at Global Television, which was a fantastic experience with lots of great memories. My boss was a former DJ and dyed-in-the-wool evangelist for radio (this was the late 90s, so pre-podcast radio-is-dying-or-dead), and I will forever remember a key piece of advice that he imparted – and one that is equally applicable in radio, television, or film – which was that if a microphone is in front of you, you have to respect it and assume that it is on. In other words, watch what you say or do, as you never know when the tape might be rolling. Many, many, many radio, TV, and film personalities have forgotten this fundamental tenet, to their everlasting embarrassment (Gord Martineau, we’re looking at you).YouTube could barely exist without this gift that keeps giving.

Pre-internet, Casey Kasem was a victim of this truism, when in 1991 the band Negativland managed to thoroughly embarrass and infuriate not only Kasem, but also the band U2’s record label, Island Records, with the release of their “U2” EP. Somehow Negativland had managed to obtain outtakes from “American Top 40” that captured Kasem ranting in a manner that was very, very much contrary to his relatively wholesome public image. The outtakes were interspersed with what can only be described as an cacophony that also includes snippets from and open mockery of the then-recent U2 songs “Where the Streets Have No Name” and, particularly,  “I Still Haven’t Found What I’m Looking For“. The EP had two tracks – “I Still Haven’t Found What I’m Looking For (1991 A Capella Mix)” and “I Still Haven’t Found What I’m Looking For (Special Edit Radio Mix)” which, despite effectively being disappeared in the pre-internet age, have managed to continue to exist thanks to YouTube and even a later CD release of questionable legality (but awesome title).

It is possible that Negativland would have been able to have the EP released without incident but for the album art, rather than its content. It was released just before U2’s landmark album Achtung Baby, and the giant “U2” on the cover was seen to be misleading by U2’s record label, which successfully sued for copyright infringement in order to get the album off the shelves.

It is an interesting case, especially 23 years on, as it was coming at the tail end of a period in which sampling without attribution was a pretty common practice (as was the case in a ton of old hip-hop and rap albums and songs, notably Paul’s Boutique, Three Feet High and Rising, and “The Adventures of Grandmaster Flash on the Wheels of Steel” – among many, many others), but was ever-increasingly being curtailed by litigation surrounding the use of uncleared samples. In the realm of mainstream music, at least, sampling has largely become the reserve of wealthy, major-label acts who can afford the time and trouble to obtain clearance for recognizable samples. There are plenty of exceptions, of course, with so-called “mash-ups” becoming a recognizable and viable genre. Record labels like Illegal Art have managed to continue their existence and release music by acts such as Girl Talk, despite their dubious legality and artists like DJ Shadow and the Avalanches have largely evaded closer scrutiny by dicing the majority of samples until they’re unrecognizable.

The difference with Negativland was the fact that they embraced the notoriety that the case brought (and even published a book about it – alas, we don’t have it) and it stands as the closest thing that they have to a “hit” record, a fact that is all the more remarkable given that this whole scenario unfolded prior to the ubiquity of the internet. It is impossible to say how it would have unfolded today, but it would certainly have been very, very different. For a comparison, just take a look at Danger Mouse’s Grey Album mix of Jay-Z’s Black Album and the Beatles’ White Album on YouTube. Once the genie was out of the bottle, it was impossible to put back in.

Perfect Timing

Just to give you something to look forward to when you’ve finished your exams and papers, the library will have four especially interesting-sounding books available for your reading enjoyment by April 30.

First on the list is The Emergency Sasquatch Ordinance and other real laws that human beings have actually dreamed up, enacted, and sometimes even enforced, which is a collection of over 200 real but “wacky” laws, complete with citations.  This book is Osgoode’s first book with sasquatch content, but fear not, other libraries in the York University Library system will be able to meet your sasquatch research needs, with nearly twenty titles from which to choose.

The next book is again a first at Osgoode: The Little Book of Elvis Law.  The book talks of the license agreements respecting the use of his name and likeness in connection with the marketing and sale of consumer goods, the many paternity suits and recording contracts, cases involving Priscilla Presley, a bar called The Velvet Elvis, a death certificate investigation, a 16-hour-long documentary, a magazine photo spread, and an agreement with television host Geraldo Rivera.  If that does not sate your curiosity, again YUL will come to your rescue with another 50 titles on The King, including (electronic) FBI records!

Thirdly, for the sports-minded, we are getting Adventure and the Law, about the law relating to extreme sports.  We already do have a handful of books in the library’s sports law collection, but Scott and Steacie win in the extreme sports division.

The last book is already in the stacks: Canada the Good : A Short History of Vice Since 1500.  If this piques your interest, Osgoode and the rest of YUL do have several other items on vice control in Canada.  Here is part of its description:

This historical synthesis demonstrates how moral regulation has changed over time, how it has shaped Canadians’ lives, why some debates have almost disappeared and others persist, and why some individuals and groups have felt empowered to tackle collective social issues. Against the background of the evolution of the state, the enlargement of the body politic, and mounting forays into court activism, the author illustrates the complexity over time of various forms of social regulation and the control of vice.




Komagata Maru Exhibit in the Osgoode Library

This year marks the 100th anniversary of the Komagata Maru episode, when Canadian authorities turned away 376 migrants of South Asian origin aboard a Japanese steamship in Vancouver harbour. The South Asian Law Students’ Association (SALSA) at Osgoode Hall Law School will have launched Komagata Maru Week (March 10-15, 2013) and the Komagata Maru Reflections Project.

On May 23, 1914, the Komagata Maru sailed into Vancouver’s Burrard Inlet, carrying 376 passengers of Indian origin. However, the passengers on board the Japanese steamer were denied permission to enter Canada. Fears over Asian immigration at the time led the Canadian government to adopt a series of racist exclusionary policies against Chinese, Japanese and Indian migrants.

In the case of Indian migrants, Canada enacted the Continuous Journey RegulationThe Continuous Journey Regulation was an order-in-council that permitted entry to Canada only to migrants arriving in Canada by boat directly from their country of origin through a continuous journey and in possession of $200. Migrants who arrived on a boat that stopped anywhere between Canada and their country of origin or were in possession of less than $200 were denied entry. At the time, it was highly unlikely that migrants could make the journey from India to Canada without stopping en route. Moreover, the $200 fee was a considerable sum at the time, especially for Asian migrants. This regulation was designed to prevent Indian migration to Canada without being explicit in its intent.

For two months, passengers of the Komagata Maru sought to defy the Continuous Journey Regulation. While the passengers were not allowed to disembark the ship, supporters in Vancouver challenged the regulation on their behalf in court, ultimately unsuccessfully. The Komagata Maru sailed out of the Burrard Inlet on July 23, 1914 to the uncertain fates that awaited the ship’s passengers in Asia.

As part of the anniversary events, the Osgoode South Asian Law Students Association (SALSA) have set up in the Osgoode Library an exhibition of photos and images documenting the Komagata Maru incident. The photos are from the Komagata Maru Collection of the Sikh Heritage Museum of Canada. The exhibit will run throughout the week during regular library hours. The exhibit is free.

Scottish Law – More different than you might think!

Having just returned from Scotland this past week, I feel compelled to write about Scots law which, though it is part of the UK (for now), is markedly different from English law.

With the referendum on Scottish independence set for September 18 of this year, there has been a tremendous amount of discussion into the parallels between the Scottish and Québécois experiences in their quest for independence. The parallels are numerous (as are the differences, for that matter), but a key similarity that leaps out is the fact that they have very different – and yet strongly intertwined – legal systems. While they are both heavily indebted to the common and civil traditions, Scots law has arguably maintained an even stronger native character than the Québécois system. In an echo of Canadian and American divisions between the Federal government and states and provinces, the Scottish Parliament, first elected in 1999, exercises jurisdiction over all matters that are not specifically reserved to the UK parliament.

One of the most significant (and enduring) peculiarities is the “third option” in Scottish criminal law. While most people are familiar with the enduring, Manichean “guilty” vs. “not guilty” divide in most justice systems, the Scots have opted for and persisted with a third verdict – “not proven”. Otherwise known as the “bastard verdict”, it has been said that it is the equivalent of “we’ll no’ say ye did it, but then we’ll no’ affirm ye didna either.” It is certainly a curious idea – considered to be an acquittal, it still doesn’t conclusively dispel the notion of guilt either.

A further muddying of the waters with regard to guilt, innocence, and the apparent Scottish penchant for ambiguity in these matters hinges on jury trials. Unlike most jurisdictions that call for unanimous verdicts (an eternal source of drama such as with the classic 12 Angry Men), a simple majority of eight will suffice in Scotland (their criminal trial juries consist of 15 individuals) – even in cases that involved capital punishment. The somewhat tongue-in-cheek “Anomalies of Scots Law” from a 1919 Juridical Review notes that “we hope that these criticisms do not amount to high treason. The penalty for that crime is the drawing of the traitor to the scaffold on a hurdle, followed by execution or hanging, drawing, and quartering… why England only was favoured by the repeal of that penalty in 1870 seems itself an anomaly. It behoves one, however, to walk warily when it is borne in mind that in Scotland a jury, while it must remain closeted for three hours before returning a verdict by majority in a civil case […] yet in a criminal trial may, by eight votes to seven, and after five minutes’ consideration or none at all, bring about the death of a fellow-subject.”

These are just a couple of (admittedly pretty significant) differences, with a whole host of others – large and small – that have allowed for the development of a body of laws and legal traditions that exist very much parallel but distinct from much of the rest of the Anglo-American legal tradition.

Given Canada’s strong Scottish heritage, it should be no surprise that the Osgoode library has a significant collection of material dedicated to Scots law, with the oldest being the succinctly and decidedly old-timey titled De verborum significatione : the exposition of the termes and difficill wordes, conteined in the four buikes of Regiam majestatem and uthers in the actes of Parliament, infeftments and used in practicque of this realme, with diuerse rules and commoun places of principalles of the lawes from 1597. This is simply one book from the 836 on Scots law in the Osgoode library alone, with a wide array of material available through databases, including the massive, impressive, and often fascinating Scottish Legal History collection on HeinOnline.

Finally, there is an up-to-the-minute research guide published in February 2014 specifically on Scottish Legal History on GlobalLex for those who may wish to delve deeper.

Canadian booze regulation – a chequered history

The state of Canadian liquor laws and regulations is something that occasionally crops up in op-eds across the country, but then quietly fades away only to flare up again periodically.

Although Prohibition in the popular consciousness has a distinctly American flavour, evoking images of Al Capone, speakeasies, and bathtub gin (as an era, it certainly has had legs, with HBO’s Boardwalk Empire and the Ken Burns series Prohibition being recent examples that have drawn from the enduring well of cultural fascination with all things Prohibition), it is often forgotten – or, at least, dimly remembered – that Canada also had Prohibition. While it was typically less stringent (for instance, the manufacture of booze was still allowed – unlike in the US, which was, in fact, an outstanding export market that exemplified the notion of supply and demand), it was also determined on a provincial basis. Quebec was one extreme (less than a year in 1919!) and PEI another (1901 to 1948), Ontario was officially dry for eleven years from 1916 to 1927. The US, by comparison, was dry from 1920 to 1933.

Yet, although Ontarian Prohibition was officially repealed in 1927 with the passage of the Liquor License Act (S.O. 1927 c. 70), dramatic change has been slow to come. It may seem hard to believe now that there are two breweries and a distillery based there (the latter, incidentally, was co-founded by Osgoode alum Jesse Razaqpur), but the Junction in Toronto was dry until 2000. Regardless of what criticisms have been levied at the current system of alcohol distribution in Ontario, the immediate post-prohibition system of alcohol distribution was far more restrictive and, at times, downright bizarre, with change extremely slow to come. For those who might be interested, Osgoode has a fascinating (if arcane) history of the LCBO’s post-prohibition system entitled Punched Drunk: Alcohol, Surveillance and the LCBO 1927-1975. There is also a book that is available both in hard copy (at Scott and Frost) as well as online entitled Try to Control Yourself: The regulation of post-prohibition drinking in Ontario, 1927-1944. For a less scholarly – but more fun – history of drinking in Canada, Cheers!: An Intemperate History of Beer in Canada is well worth a read.

Of course, while much has changed since 1927, booze in Canada is still very much strongly and strictly government-regulated by provincial liquor regulators. Reform is typically resisted on grounds of public health and safety (not to mention being a cash cow). Technically speaking there are limits on the amount of alcohol that can be legally taken over provincial borders (and they are sometimes even enforced!). But is this even a right that the provinces have? The Importation of Intoxicating Liquors Act is the Federal act that provides this right to the provinces, but is this compatible with s. 121 of the Constitution Act, 1867 – which states that:

All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.

In a series of articles in the Advocates’ Quarterly (here and here) and the Dalhousie Law Journal (here), Ian Blue, a lawyer at Gardiner Roberts, suggests that the Importation of Intoxicating Liquors Act runs afoul of the Constitution due to its contravention of s. 121. Which, as any first-year law student can tell you, is a bad thing.

While a constitutional challenge to completely overhaul an entrenched system like the system of alcohol delivery in Canada may seem unlikely, I’m sure many said that about prostitution as well.

Senate Reform Déjà Vu

While much of the world’s attention on Canadian politics has been focused on the bizarre scenes that have been unfolding in Toronto, the Senate scandal that dominated headlines prior to the Mayor’s crack admission has continued apace. Much as in Toronto, the scandal has elicited popular hue and cry for something – anything! – by way of legislative reform to ensure that it never happens again. However, unlike Toronto, where a fix would be a relatively easy (if not politically palatable) amendment to the City of Toronto Act (or some other quick fix), in the case of the Senate, reform or, as many are calling for, outright abolition, would be very messy indeed. It should be no surprise, then, that the government has asked the Supreme Court to weigh in with a reference.

What is somewhat surprising is the fact that Senate reform has been something discussed almost as long as the body itself has existed. A simple keyword search in our catalogue for “senate reform” for yields eighty hits, with the oldest being from 1899 and 1909. There is, admittedly, a significant jump between 1909 and the next oldest hits from 1983, when a Special Joint Committee on Senate Reform was struck, which resulted in a report in January of 1984. The issue has never really gone away since, with a wealth of material available from the past thirty years. Since it is an issue that has elicited particularly partisan fervour, it is a subject that requires a particularly critical eye when reviewing the material, which is often heavily imbued with the political leanings of the author and/or the think tank (the Fraser Insitute has long adopted senate reform as a pet cause).

Louis Riel Day – November 16 in Ontario

Louis Riel Day is a day to celebrate the life of the controversial Métis leader and the efforts he made for Métis rights and also to acknowledge Métis contributions to Canada.  No doubt you will remember my blog about Louis Riel last year.  This year I wanted to focus more on the Métis than Louis himself because the Métis Nation of Ontario and the Law Society of Upper Canada are holding a free public legal education event in the afternoon of Friday November 15, 2013 at the Toronto Hilton Hotel (registration by Nov. 13 required at 416-947-3413 or equityevents@lsuc.on.ca).

At the event, there will be a panel discussion of R. v. Powley, 2003 SCC 43, [2003] 2 SCR 207, a landmark case recognizing Métis rights protected by s. 35 of the Constitution Act, 1982.  In the process of doing so, the Court discussed at length what Métis identity is and adopted three indicia proposed by Vaillancourt Prov. J. and O’Neill J. in the courts below: self-identification, ancestral connection, and community acceptance.  The Court specifically stated that these indicia do not comprise a comprehensive definition, but clearly what they were considering was a determination based largely on Métis cultures:

 The term “Métis” in s. 35 does not encompass all individuals with mixed Indian and European heritage; rather, it refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, way of life, and recognizable group identity separate from their Indian or Inuit and European forebears.  Métis communities evolved and flourished prior to the entrenchment of European control, when the influence of European settlers and political institutions became pre-eminent. …

The panel will also be discussing Manitoba Métis Federation Inc. v. Canada (Attorney General) 2013 SCC 14 (CanLII), in which the Supreme Court held earlier this year, six justices to two, that the federal Crown failed to implement the land grant provision set out in s. 31 of the Manitoba Act, 1870 in accordance with the honour of the Crown.  Justices Rothstein and Moldaver dissented on the basis that the majority of the Court was proposing a new common law constitutional obligation derived from the honour of the Crown, an unpredictable expansion of the scope of the duties engaged under the honour of the Crown.

And what does this have to do with the library?  Naturally we have a wealth of resources available to you to help you come to your own conclusions on Métis cultures and land rights of the Métis.  Here is a very small sampling: