Election Special 2015 – X Marks the Spot, or, Ballot Dos and Don’ts


Our federal election is swiftly approaching, and all signs point to a close race.

We sometimes become disillusioned about the worth of each individual vote, but a tight three-way contest will demonstrate the importance of every ballot. I don’t say ballot to metonymically refer only to each individual’s participation in the election process, but literally each ballot – each slip of paper marked with the elector’s desired candidate – because if you’re not careful, your vote may not float.

If you plan to vote, you want to make it count. The CBC reports that in the last federal election (2011), eight Toronto ridings were decided by fewer than 1,500 votes. In Etobicoke Center, Conservative Ted Opitz edged out Liberal Borys Wrzesnewskyj by only 26 votes!

With such close races, you cannot afford – nay, Canada cannot afford! – to have your ballot discounted by the returning officer due to a casual elector error. After all, four years ago, 26 ballot errors might have led to an even more dramatic result in Etobicoke Center. Much is at stake: each riding is riding on the decision of its constituents, so the returning officer needs to have clear rules to determine which votes are valid and which are not.

The legislation governing elections – along with other helpful resources such as links to significant cases, maps and data on electoral districts, historical data, extensive description of Canadian electoral process – is all available online via the Elections Canada Resource Centre, but I was inspired by an old returning officer manual to share some ballot dos and don’ts to ensure that each voter’s vote is valid.

Title page

The Powers, Duties, & Liabilities of an Election Agent, and of a Returning Officer, at a Parliamentary Election in England or Wales, published in 1885, offers “fac-simile copies of ballot papers” that gave them trouble all those years ago. As the book states, “Several cases have come before the courts in which instances of irregularly marked ballot papers have been considered, and these may serve as guides to the returning officer in determining any question that may come before him” (182). Though the voting process might seem simple, there are an alarming number of ways to give counters pause when tallying votes. So…

DON’T! Identify yourself on the ballot. Identification includes voter registration numbers, names, and initials

Initials Don't identify yourself!

DON’T! Mark the ballot anywhere except inside the designated area

Don't mark outside ballot box!

DON’T! Mark the ballot with “a long cross, each line thereof being partly in the square allowed for one candidate and partly in that of the other”. Even though this was “allowed as a good vote for the candidate in whose square the intersection of the cross appeared”, it’s best to keep in mind: Precise is nice.

Don't use an ambiguous mark!

YOU PROBABLY SHOULDN’T! Mark the ballot with a symbol other than a cross or “X”. Although Elections Canada states that a ballot clearly “marked with a symbol other than a cross” is still valid and cannot be discounted, there are probably better opportunities to exercise your creativity during the election (Note: I am firmly opposed to the vandalism of political lawn-signs and in no way endorse such activity).

Such aberrant markings include:

A “single stroke”

A single stroke

A “straight stroke in addition to the cross”

Stroke and cross

A “mark like an imperfect letter P in addition to the cross”

Cross and Imperfect P

A “star instead of a cross”


And last, a “peculiarly formed cross”

Peculiar cross

And finally…

DO! Mark the ballot with clean, exact, unambiguous “X”

The perfect vote

The main takeaway: when casting your vote, let simplicity reign. Don’t forget to take a look at the actual, current legislation governing valid ballots at Election Canada.

Skip over the ocean and forward 120 years and you’ll find a ballot that looks something like this (courtesy of Elections Canada):

Sample Ballot

And once cast, it should look something like this:

Sample Ballot voted

I’ve always thought Cabot an underrated explorer – although I must say I am quite taken with Mlle. De Verchères since looking her up five minutes ago.

Don’t forget to check out the previous Election Special, written for the 2014 Ontario election, for even more great tips on how to exercise your Canadian democratic right.

Happy Voting! Election day is October 19, 2015. Visit the Elections Canada homepage for more information.

Festive Footstools and Best Wishes from the Osgoode Library


It’s the last week of exams before the New Year holiday break at Osgoode. The students are stressed. We have seen them doing jumping jacks in the group study rooms. So we weren’t so surprised when we discovered this expression of student anxiety while closing the library last night. What can it mean? I put the question to some of my colleagues and John Eaton, Head Librarian of the EK Williams Law Library at the University of Manitoba, offered the following possibility:

You may be aware (or maybe not?) of the 1984 musical Footloose!, wherein a group of exuberant youth, led by the actor Kevin Bacon, break free of the strictures of their sleepy Texas town and express themselves through dance. These are just the props for the exciting new library musical Footstool! in which stressed out law students break free of the monotony of cramming for torts and contracts by devising more inventive uses of standard library furniture.

They also look a bit like a library Yuletide tree. Other interpretations are welcome.

And a quick reminder that the Library closes for the holiday this Friday, December 19, at 5:00 pm. We look forward to seeing everyone when the library reopens on Monday, January 5, at 8:00 am. Until then, have a Happy Holiday and all the best for the New Year 2015.

“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.




Disaster strikes!

In the wake of this year’s spate of wild (and wildly destructive) weather, including July 8th’s record-breaking torrential deluge that flooded swathes of the city, crippling transit, leaving thousands without power for days, and which will ultimately cost upwards of $600 million in property damage, there are a number of questions of a legal nature that crop up. These pertain to a wide variety of areas, including environmental and insurance law, as well as broader legal frameworks that address (or, in many cases, don’t) issues such as climate change.

A simple search in our catalogue for the term “climate change” (using the advanced search to limit a subject search to Osgoode-only) yields 89 results for Osgoode alone, including a recent publication on local climate change law. Perhaps somebody should let Norm Kelly (the former Chair of the Parks and Environment Committee) know about it.

One of the enduring images from the flood was from a lawyer’s Ferrari submerged in a downtown underpass. It is worth noting that the lawyer was quoted in the Toronto Star as saying “that’s what insurance companies are for”. While it is true that these storms lead to huge numbers of claims, it is also true that there will likely be a corresponding increase in rates. Especially if you drive a Ferrari. We have no shortage of books pertaining to all areas of insurance law, including property insurance, insurance companies, and plain old insurance law.

Failing all of that, you could just sue God.

Summer viewing, Part 1 – Harvey Birdman, Attorney at Law

“Debbie, we’re going to need some law books. With pictures this time.”

Now that exams are done and the summer has started (never mind the hail last Sunday), it is an opportunity for a collective exhale and a chance to mentally re-calibrate before starting all over again in September (or before going off to bar ads and articling). Following in the footsteps of Sandra Geddes’s blog post from a few weeks ago on summer reading, I thought I would include some occasional suggestions for summer viewing with a legal bend (and I should put the emphasis on bend). This week I’ll start with something truly bizarre, and hopefully the tenor will only improve from here on out.

There is a reason that awards-pandering “challenging” movies are typically released in the fall, while escapist “blockbusters” are reserved for the summer – the summer is a time of escapism and relaxation, while the rest of the year tends to be of the serious, furrowed-brow nature, when things need to get done. With that in mind, I’ll try to err on the side of escapism. Brain cramp while trying to relax is no fun at all.

Although it is not a movie, but rather a television show, Harvey Birdman: Attorney at Law is easily one of the silliest and most irreverent takes on the law. Although it has long since ended, the series was part of the Adult Swim programming on the Cartoon Network and featured such talent as a pre-Colbert Report Stephen Colbert. The premise is simple and brilliant – what happens to Hanna-Barbera cartoon characters after their respective series end? In the case of third-rate character Birdman, he becomes a barely-functioning lawyer. The show makes full use of the Hanna-Barbera license, with such premises as Fred Flintstone as a Tony Soprano-like mob boss, Shaggy and Scooby-Doo getting busted for marijuana possession, and Boo-Boo Bear as a terrorist known as the Unabooboo. Each episode is a digestible fifteen minutes, and fun in the vacantly vacuous way that seems to work best in the summer months.

Check out the opening scene from the episode where Harvey Birdman defends Shaggy and Scooby-Doo here.

Have a fantastic holiday weekend everybody!

Stylistic Flair – A time and place?

The Original Literary Judge

In a post from a few weeks ago, I lamented the lack of flair in legal writing. Although it’s certainly not a “need-to-have”, it’s certainly a “nice-to-have”. Throughout legal education and practice, you will likely have to read many, many decisions, and most of them are – to not put too fine of a point on it – dry as dust. The legal arguments may be compelling, significant, and of lasting importance, but the prose less so.

It is human nature to want to be entertained, even when reading dry legal writing. This is, of course, why Lord Denning has proven to be so enduring and popular. His judgments were colourful, informative, and yes, entertaining. After reading a Lord Denning decision, you are both entertained and informed. Of course, many do not necessarily subscribe to this opinion, believing that such writing undermines the proper gravity that should be afforded to the law. On a personal level, I think that, as with many things in life, a balance should be struck. To my mind, taking the time to write judgments that are not boilerplate demonstrates that the judge is engaged and wants others to be as well. While the realities of time constraints means that taking the personalized approach to each and every judgment is unlikely at best and foolhardy at worst, it is always refreshing when something comes to your attention that demonstrates that not every decision is bloodless (yet).

Although R. v. Duncan was released a month ago, it just recently came to my attention. It is nothing if not extremely entertaining, chronicling the story of Matthew Duncan, who was rather forcefully arrested and tasered, where he eventually found himself before Fergus O’Donnell, the author of the decision, representing himself. And doing a rather poor job of it, to boot. As Abraham Lincoln famously stated – he who represents himself has a fool for a client.

As with many “literary” decisions, it has found itself to be the subject of quite a bit of controversy. In this case, in addition to the usual concerns about the appropriateness of the bench as a venue for judges to exercise their literary aspirations, there have been concerns the fact that O’Donnell so openly mocks the defendant (despite eventually acquitting him).

As I mentioned previously, it really comes down to striking the balance. However, I must concede that however entertaining it may have been to read Justice O’Donnell’s evisceration of Duncan, the old adage of “a time and a place” did cross my mind. Perhaps it is in the eye of the beholder, so take a look for yourself and decide!