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No, it isn’t a poisson d’Avril, which is how they say “April Fool’s Joke” in Quebec. On April 1 the province’s court of appeal held that, in blowing “flutes” during a three-year labour dispute, picketers did not attempt to “intimidate, threaten, impede or otherwise harm or attempt to harm, directly or indirectly, the free movement and work of the applicants as well as their various clients, associates, suppliers and staff, or all other persons wishing to enter or leave the said establishments or to freely undertake their work or activities there.”*
The quoted bit is the meat of an injunction issued from a lower court, against unionized employees locked out by car dealers and automotive repair shops in Saguenay Lac-Saint-Jean. Before legislation ended the dispute, the employers had brought 90 contempt motions. This one, concerning unionist Alexandre Caron, actually stuck – at first.
Caron was fined $950 for (among other things) harming or attempting to harm employees, clients, and suppliers of Automobiles de Royaume, and their work there, by loudly blowing a trumpet and flutes (sometimes during client meetings), intimidating them by photographing them at his employer’s premises from an adjacent property, as well as calling the used-car sales manager a “little fatso” and telling him to get “back in the garage and eat your baloney.”
This sort of cacophony continued for another couple of months, it seems, at up to 100 decibels (apparently with the aid of speechifying over loud-hailers, perhaps as a response to complaints about the “music”), because the employers then managed to get another court order, limiting the noise to 60 decibels. Presumably this was loud enough to protect the unionists’ constitutional right to throw tantrums without unduly impeding business operations. But by then, Caron had been ordered to show cause why he should not be convicted of disobeying the injunction.
On that contempt motion, the judge below found that not only had Caron exercised his collective bargaining rights by blowing a trumpet and flutes, but also a kazoo, whistles, and an “air pump.” (Maybe he attached it to some bagpipes?) “The frequency, duration, repetition and intensity of the noise,” the motion judge held, “reached intolerable levels, making it difficult, nay, impossible, for the applicant’s employees to work” – thereby constituting a contempt by disobedience of the injunction.
But the Court of Appeal has disagreed, two judges to one. “Regarding noise,” Justice Levesque ruled for the majority, the injunction “was ambiguous.” It “made no mention of the applicants’ management or their employees. It referred only to ‘the applicants’ work,’” which comprised “the sale, maintenance or repair of motor vehicles.”
Where the dissent thought the employers were perfectly entitled to get judicial assistance in turning the soundtrack down from fortissimo, the majority held this attempt to preserve their businesses against them, given that the employers had sought the noise-reduction order after Caron was cited for contempt: seeking that second order, the majority said, meant the employers admitted the ambiguity about noise in the original injunction …
Never mind the introduction of loud-hailers, which seem to have allowed the majority to imply that the noise could have increased between the time Caron was cited for contempt and the date when the court issued the noise injunction. The din probably did get louder, all right, though the court does not say what that has to do with whether the previous non-music impeded business unduly. In any event, the majority decided in Caron’s case, there seemed to be “no proof that the noise was meant to impede or limit work” or “proof beyond a reasonable doubt that it intimidated” those still working.
The emphasis is mine, because last year the Supreme Court of Canada made crystal clear that the test for contempt by violation of a court order (here, the injunction) is not whether the accused person intended to thumb his nose at the court. Contempt of a court order occurs when the accused intentionally performs an act the order forbids (or an act contrary to what it demands) – in this case, acting to disrupt the employers’ operations beyond conventional, lawful picketing. What else would Caron have meant to do with his “music”? Whether he thought he acted within the injunction’s terms is irrelevant.
As a society, we seem to have become terrified of peace – of being alone with our own thoughts, or perhaps of the poverty of our materialism, staring at phones instead of the flowers and trees, playing boom-boxes in SUVs instead of listening to the birds and wind, demanding Wi-Fi in wilderness areas instead of letting our minds wander. Fair enough, the contempt remedy is meant to be a last resort, and one can imagine how frustrated the unionists must have become during three years of lock-out. But it is hard to know where the majority judges imagine that distracting but lawful noise ends and intimidation, harm, or impediment begins.
For three years the unionists were already picketing, shouting, filming, slanging off those still working, using mirrors to reflect blinding light into the workplaces, and so on. Nobody was telling Caron that he couldn’t sing “Solidarity Forever” or chant “No justice, no peace or oil changes.” How do ear-splitting flute solos (one imagines screechy plastic recorders rather than silver Yamahas and boxwood Olwells) amount to legitimate collective bargaining, particularly in the face of a court order prohibiting workplace harassment, and more particularly when balanced against the rights and well-being of one’s fellow workers? As the decibel level of modern life increases, when will we pick up a loud-hailer and shout above the din that enough is too much – that, from the invention of the wheel forward, technology has brought us all this way, only to see us turn it into Frankenstein’s flute-playing monster?
*The judgment is in French. The quotations and paraphrasing are from my own translation.
It is such a compelling legal fiction that it has its own celebrated poem, as well as a Latin maxim: Cuius est solum, ejus est usque ad coelum et usque ad inferos, literally, “Whoever holds land holds it all the way to the heavens and all the way to Hell.” As William Empson puts it in “Legal Fiction,” his 1928 poem inspired by the principle, “the law makes long spokes of the short stakes of men.”
The maxim is often said to originate with the 13th-century scholar of Roman law, Accursius, although Yehuda Abramovitch traces it to pre-Christian times among Jews, in contracts for real property. He gives an example of a contract in England, in 1280, conveying lands between Jews “from the depth of the earth to the height of the sky.” Possibly racial prejudice has obscured this Jewish provenance in Anglo-Canadian law.
Since the nineteenth century, at least, the fiction has never enjoyed this extensive application, such that sometimes it is more cautiously styled a presumption. Even in 1870, the English judge George Denman described it as a “technical rule,” albeit while finding a defendant liable in trespass because his horse bit and kicked his landlord’s mare (violated the landlord’s “air rights”) through a fence separating the two properties. Its scope has drastically been whittled down further by technological development – particularly communications infrastructure (utility poles and the like) and aviation.* At this writing, the widespread popularity of “drone” aircraft, now readily accessible to peeping Toms and break-and-enter specialists, has reinvigorated the debate as to “how low you can go” in the insistence on air and attendant privacy rights. Drones do not simply move briefly through air space like passenger jets or satellites (or bullets: see the next paragraph); they customarily hover like their namesake bees.
As early as 1815, Lord Ellenborough proved prescient about these developments in a case asking whether, in nailing a barber’s sign to the side of his premises, Rudd trespassed on Pickering’s land where the sign projected over it:
I once had occasion to rule upon the circuit that a man who, from the outside of a field, discharged a gun into it, so that the shot must have struck the soil, was guilty of breaking and entering it. . . . But I am by no means prepared to say that firing across a field in vacuo, no part of the contents touching it, amounts to a clausum fregit [i.e., a trespass]. Nay, if this board overhanging the plaintiff’s garden be a trespass, it would follow that an aeronaut is liable to an action of trespass at the suit of the occupier of every field over which the balloon passes in the course of his voyage.
Then, too, for some time there have been such considerations as occupier-owned apartments stacked atop one another in multi-storey buildings. How does Blackacre own everything above her when Whiteacre occupies 301, Greenacre 401, and so on?
As for drones, Sir Frederick Pollock proved visionary there, in his 1887 treatise on torts: “At Common Law it would clearly be a trespass to fly over another man’s land at a level within the height of ordinary buildings, and it might be a nuisance to hover over the land even at a greater height.”
Yet the maxim’s claim seems so extravagant – godlike – that Empson was moved to deflate it in his poem, concluding that such a “well fenced out real estate of mind” is, in the end, a mere candle’s shadow lit by human vanity – an arrogant pretext that we really own anything of nature’s empire, that we can just magic up our short stakes into long spokes.
* The statutory minimum cruising altitude generally for “aeroplanes [is] 1,000 feet above the highest obstacle located within a horizontal distance of 2,000 feet from the aeroplane.” Bemusingly, when Manitoba purported to tax airlines for liquor they sold while flying through the province’s airspace, the Supreme Court of Canada shot down the scheme: Manitoba v. Air Canada,  2 SCR 303.
Primary sources for this post (adapted from my forthcoming encyclopedia of legal fictions and presumptions, and constructive, deemed, and implied entities): Yehuda Abramovitch, “The Maxim ‘Cujus Est Solum Ejus Usque Ad Coelum’ as Applied in Aviation,” McGill L.J. 8:4 at 251; Stuart Ball, “The Vertical Extent of Ownership in Land” (1928), U. of Pennsylvania Law Rev., 76:6; Canadian Aviation Regulations; Ellis v. Loftus Iron Co. (1874) L.R. 10 C.P. 214; Pickering v. Rudd (1815), 4 Camp. 219; Troy A. Rule, “Airspace in an Age of Drones,” Boston U. Law Rev. (2015), 95:155 at 155-208.
For more on the Empson poem, see my The Structures of Law and Literature.
As I write, it is May 19, feast day of the patron saint of lawyers, St. Ives, a.k.a. Yves, Yvo, Ivo, Ervoan, and Evona. He lived from 1253 to 1303, and was canonized by Pope Clement VI in 1347. Still, his fate at the hands of folk culture proves that, no matter what benefit lawyers have brought to human society, throughout history we remain the dog who’s acquired a bad name, tarred with the sticky brush of the shyster. On this day, then, I propose that we acknowledge the thousands of lawyers who have devoted their careers to public service and pro bono publico – legal aid, civil rights, social reform, conscientious government, children’s advocacy, the terminally ill and mentally dysfunctional, duty counsel (public defender) work, and, yes, ethical business, family, and criminal law, as well. They are all essential to the cultural fabric.
From Ives’s days as a law and theology student, and throughout his adult life as a lawyer and priest (simultaneously) in Brittany, he devoted himself to service and self-sacrifice. Giving up his clothing, food, and even his bed to the poor and compromised, he became known as “the pauper’s advocate.” Of the scant reporting of his law cases, the most celebrated (or legendary) is his defence of “the widow of Tours”:
Two travelling salesmen had lodged at the woman’s home, leaving with her a box of what they said were valuables, instructing her to return it only to both of them, together. One of the men, Smith, returned and, explaining that his colleague Jones was otherwise engaged, obtained the box from the landlady then fled with it. After Jones returned to discover the box was gone, he pursued the widow in the ecclesiastical court, claiming she had broken their agreement about safeguarding the box. Ives obtained judgment for the woman when he insisted that Smith also appear before the bishop’s court, presumably with the box. (If both men had a claim, he argued, they both should attend.) This called the con-men’s bluff, such that they admitted their scam and the box was shown to contain nothing of value. Some versions of the case say it was scrap iron; I base my account on that of the famous American legal scholar, John Wigmore, a champion of the saint’s, who gives his name as Ervoan Heloury Kermartin.
Wigmore, the secular patron saint of evidence law, accepts at face value the tales of miracles Ives is said to have performed from his tomb and that led to his canonization – supplying the names of thieves, curing a growth on a young woman’s eye… . The professor concludes:
Even a brief perusal of his recorded career makes one realize that here we have a character who may well represent the ideal for a profession. He was made a calendar-saint … because from his adult youth for thirty-five years he lived consistently an ideal life of service and sacrifice in the cause of Justice. … And he had pursued this career as an ordinary man, amidst the very same everyday conditions that surround any lawyer and any judge at any time in any country. Well may he be enshrined in our aspirations as an ensample of the ideal of Justice attainable in real life by a member of our profession!”
As I’ve suggested, whether through envy or reflexive cynicism about a profession with ready access to great power and material comfort, a demonic inversion of St. Ives’s story grew up. It was reported as early as 1688 by William Carr, who says he learned it in Rome from a man showing him “a Chapell dedicated to one St. Evona a Lawyer of Brittanie.” Carr writes that Evona went to the pope to complain that lawyers had no patron saint. (There is of course Thomas Becket, but lawyers seem to be only a sideline in his patronage, as he devotes himself primarily to the greater need of politicians, many of whom are, indeed, lawyers with an even worse dog’s name.) The pope instructed Evona to go to the Church of St. John de Latera and while blindfolded pick a candidate for patronage from the statues there. Evona blindly fumbled about until he selected the statue of Satan being ground under St. Michael’s feet. This, Carr claims, instigated a terminal depression in Evona. Upon learning he was a lawyer, St. Peter turned him away from Heaven’s gate, but relented when Evona recounted his pious life as advocatus pauperum. Carr says that this inspired “a witty Poet” to inscribe on Evona’s tomb: St. Evona un Briton, Advocat non Larron, Haeleluiah – “St. Evona, a Breton, lawyer who isn’t a crook, hallelujah!”
This “inscription” seems to be more folk adaptation, a version of what Wigmore tells us is “the saying which has fixed forever [Ives’s] place in the annals of literature, ‘Advocatus sed non latro, res miranda populo,’” “A lawyer yet not a bandit, a thing wondrous to the people” – in other words, a miracle in itself. (Some contend that this Latin “saying” was affixed to Rogier van der Veyden’s portrait “A Man Reading (St. Ivo?),” circa 1450 and now at London’s National Gallery.* See the illustration to the right.) So even in the hagiographic (nice) version of the story, there is a sarcastic dig at lawyers. As I’ve suggested, this is not exactly surprising, given that in the Christian bible, no less, it is “a certain lawyer” who asks a smart-alecky question about duty that prompts Christ’s “Parable of the Good Samaritan.”** Luke 10:25 says the lawyer baits Jesus, “tempting” him on cross-examination with, “What shall I do to inherit eternal life?” On St. Ives’ day, the answer is made graphic.
*In his Lives of the Saints, Baring-Gould says that the “popular conscience protests” against Ives’s sainthood by singing these words. Baring-Gould adds that Ives’s “emblem” was a cat, and that the feline symbolizes the lawyer, who lies in wait for prey, “darts on it, … and when he has got his victim, delights to play with him, but never lets him escape from his clutches.” So not only the dog gets a bad name…
**Thus Lord Atkin’s use of the story in our leading case on duty at private law, Donoghue v. Stevenson. See my The Structures of Law and Literature for a detailed discussion of this as central to our cultural discourse.
Primary sources for this post:
William E.A. Axon, “Ivo, Saint and Lawyer,” in The Lawyer in History, Literature, and Humour, William Andrews, ed. (London: William Andrews, 1896), 28.
William Carr, Remarks of the Government of Several Parts of Germanie, Denmark, Sweedland, Hamburg, Lubeck, and Hansiatique Townes (Amsterdam, 1688), 80.
Marc Galanter, Lowering the Bar: Lawyer Jokes & Legal Culture (Madison: U. of Wisconsin Press, 2005), 97-98.
John Henry Wigmore, “St. Ives, Patron Saint of Lawyers,” Fordham Law Review (1936), Vol. 5, No. 3, 401-07.
My daily work includes writing a book on judicial notice, the doctrine whereby courts and administrative tribunals accept certain matters as “factual” (because they’re notorious or subject to ready verification) although they are not put forward according to the rules of evidence. Courts have noticed, for example, that the floors in banks can be slippery when it snows, and that older people generally have a harder time finding work. While the book is only about a third completed and the doctrine dates from the middle ages, I’m certain that a case decided just last month provides the most remarkable example: The Gospel of the Flying Spaghetti Monster.
Stephen Cavanaugh has argued before the United States District Court that officials at the Nebraska State Penitentiary, where he is an inmate,* violate his constitutional right to religious expression: the prison has refused to let him practise Pastafarianism, more formally known as FSMism and the Church of the Flying Spaghetti Monster.
The Abraham and Moses of Pastafarianism is Bobby Henderson, who founded the church in 2005, when he was 25, in an open letter to the Kansas Board of Education. As a sort of rear-guard assault on the teaching of “intelligent design” in Kansas schools, the letter proposes that the curriculum should include Pastafarianism as well. Given that intelligent design purports to be scientific despite the absence of verifiable evidence to support it (as opposed, say, to the Darwinian theory of evolution or Newtonian theory of gravity), the argument goes that one such theory is as good as another, and therefore deserves equal time.
Pastafarianism, Henderson explains, is “today’s fastest-growing carbohydrate-based religion,” and he notes that it serves to dispel “such malicious myths as Evolution (only a theory), science (only a lot of theories), and whether we’re really descended from apes (fact: Humans share 95 percent of their DNA with chimpanzees, but they share 99.9 percent with Pirates!).” Its creed holds that the universe is ruled by the Flying Spaghetti Monster (the FSM of FSMism), whose sovereignty is acknowledged by believers who, inter alia, “pirate-speak” while wearing Long John Silver costumes, eat a great deal of spaghetti (also styled as taking communion), and celebrate noodlecentric holidays such as Pastover and Ramen Dan.
So much for ritual. As for the science validating the doctrine (in the vein of intelligent design), apparently it is more than an article of faith that gravity is caused by the Monster’s pushing down on us with His Noodly Appendages, and that global warming is caused by the “decreasing number of pirates on the high seas.”
District Court Judge John M. Gerrard has proved to be the Doubting Thomas in all this, ruling that Pastafarianism is not a religion “within the meaning of the relevant federal statutes and constitutional jurisprudence.” Rather, it constitutes “a parody, intended to advance an argument about science, the evolution of life, and the place of religion in public education.” Nor does the penitentiary “substantially burden” Cavanaugh in the “exercise” of Pastafarianism, the purported encumbrance apparently being denial of his right to wear religious costume, said pirate gear.
Over the years, courts have taken judicial notice that beer is “not necessarily hurtful, any more than the use of lemonade or ice-cream” (Beebe v. The State, 6 Ind. 501, 519 (1855)), and that “it has never been said” that tobacco’s “preparation and manufacture into cigars were dangerous to the public health” (Jacobs’s Case, 98, N.Y. 98, 113 (1885). As well, there was a time when judges would have noticed without supporting evidence, accurately and soberly, that racial discrimination was lawful, extending even to human slavery. So perhaps applying the doctrine here is not as strange as it first appears. Explicitly stating that he does not pass judgment on the sincerity of Cavanaugh’s belief, Judge Gerrard takes judicial notice of its foundational document, The Gospel of the Flying Spaghetti Monster, which was not entered formally into evidence:
The Court has considered whether it is appropriate to consider this text, given the procedural posture of this case. But the Court finds that it is judicially noticeable – the contents of the book are capable of certain verification, … and Cavanaugh’s complaint expressly refers to the text as a basis for his claims. … Given Cavanaugh’s reliance on the book, the Court views judicial notice of it as effectively the same as taking judicial notice of the Bible. …
… and, presumably, of Charles Darwin’s On the Origin of Species.
* Cavanaugh is serving two to four years for attempted first-degree assault with a hatchet, and one to two years, consecutive, on a weapons conviction related to the hatchet.
“It is therefore with a great deal of trepidation that I find that the Gold Seal case was wrongly decided.”
Provincial Court Judge Ronald LeBlanc might well feel trepidatious. His honour sits on the lowest law court in New Brunswick, and Gold Seal is a Supreme Court of Canada decision that has stood as settled law since 1921.
In R. v. Comeau, LeBlanc J. boldly goes where no provincial court judge has gone before, at least not in active memory. On April 29, Comeau struck down the subsection in New Brunswick’s Liquor Control Act (LCA) that prohibited anyone to “have or keep liquor, not purchased” from the province’s Liquor Corporation. LeBlanc J. reasons there that the prohibition violates section 121 of the Constitution Act, 1867: “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.” And sure enough, as purported constitutional violations go, the LCA prohibition walks like a lame duck. The trouble is, higher authority, which is to say Gold Seal, says it doesn’t talk like one.
It all started when Gerard Comeau made a booze run to La neighbouring belle province, then motored home to Campbellton, N.B., with 15 cases of beer, 1500 ml. of whiskey (two bottles) and 1.5 litres of liqueur, all of it apparently much dearer if you buy it locally through “the Corporation.” The LCA provision permitted “liquor not in excess of one bottle or beer not in excess of twelve pints purchased” in another province or territory, even if you received it as a gift. Then again, apparently the N.B. police look the other way for trafficking (across staid lines, you might say) in four cases of Quebec beer or less. So, for New Brunswick drinkers, Gold Seal was already overturned, more or less, de facto if not de jure.
It must be said, too, that Justice LeBlanc’s decision is remarkable for more than its hierarchical chutzpah, however trepidatious. It is well written (which sadly is not a given in these documents, and excepting the judge’s multiple mistakings of “regards” for “regard,” although probably that settled rule has been overturned de facto, as well), and it provides a thoroughgoing, highly readable history of Canadian constitutional history. It would serve well in high school history and first-year law classes.*
As both the press and LeBlanc J. note, his decision, if it stands, could have far-reaching consequences regarding interprovincial trade. In Comeau, the judge points out that Gold Seal is the foundation of “marketing boards such as for wheat, eggs, milk and poultry, provincial liquor,” as well as federal trade barriers and other regulation of every sort of interprovincial trade. But of course there’s the rub.
His honour puts the dilemma plainly, himself: “ The current state of the law in Canada on the meaning and effect of section 121 of the Constitution Act, 1867 is clear and unambiguous: section 121 prohibits the establishment of customs duties affecting inter-provincial trade in the products of any province in Canada. The principle of vertical stare decisis [that is, the rule that courts generally must follow legal precedent, and especially decisions of courts above them in rank] mandates that I follow that law and not deviate from it unless an exception is warranted.”
The exception that Justice LeBlanc says permits him to “overturn” the current state of law is new evidence: “if the evidence that was presented before me at this trial had been brought to the attention of the justices of the Supreme Court of Canada in their deliberations on the meaning of section 121, particularly when the Gold Seal case was decided in 1921, the result would have been different.”
Gold Seal does seem to torture the syntax of s. 121 and its context in the nation’s foundational document, designed to establish a commonwealth of mutually supportive regions. It holds that in specifying that goods should “be admitted free” province to province, the fathers of Confederation meant “free of duties and other charges,” not free trade. And through the testimony of experts on Canadian constitutional history, albeit nearly a century after Gold Seal, Mr. Comeau (represented by the Canadian Constitution Foundation) argued convincingly that this is too narrow an interpretation, biased toward provincial self-interest.
Another notable quality of Judge LeBlanc’s decision is that, while it seems to be extravagantly revisionist and activist, in fact it is an unusual Canadian example of judicial originalism – of closely reading the text and historical setting of the constitution to determine what its writers intended. Generally Canadian constitutional law adheres to Lord Sankey’s dictum – in the famous case holding that “persons” entitled to sit in the Senate includes women – that the constitution is “a living tree capable of growth and expansion within its natural limits.” But that was on an appeal from the Supreme Court of Canada to the Judicial Committee of the British Privy Council – from the country’s highest appellate court to the Commonwealth’s highest. Provincial Court Judge LeBlanc quotes Lord Sankey, yet bases his decision to “overturn” Gold Seal on what defence experts in 2016 tell him the Fathers must have intended 149 years ago: a confederation in which each part of the country contributes its resources to the good, and coherence, of the federated whole. So it would appear that, legally speaking, “trepidation” means setting the cat among the pigeons.
*For further perspective on this case, from an historian, see Chris Moore’s blog. Chris has me coming down harder than I think I did here on LeBlanc J., but he adds welcome expertise on the historical evidence.
The effusiveness surrounding the death of Prince, the pop music star otherwise known as Prince Rogers Nelson and the hieroglyph formerly known as Love Symbol #2, has included some asides about his litigiousness. In protecting his intellectual property, he was at least as aggressive as the Disney Corporation, and complained bitterly that his contract with Warner Music was a form of indentured servitude – making his case partly by performing with the word Slave inscribed on his cheek and by changing his name to that hieroglyph. The damage to Warner remains debatable, while the tactics forced thousands of innocent parties, including Prince’s admirers, to utter the mouthful “the artist formerly known as Prince” every time they wanted to “reference” the musician. But Prince’s most significant legal legacy could well be a lawsuit launched not by him, but by a small-town mom, against Prince’s efforts to protect his copyright.
In early 2007, Stephanie Lenz posted a 29-second video of her young children dancing in her kitchen in Gallitzin, Pennsylvania, to a recording of Prince’s “Let’s Go Crazy.” The sound is terrible, the song hardly audible. However, Universal Music Corporation, the gatekeeper of the day for Prince’s published music, sent YouTube a “takedown notification,” a communication which apparently does not presage a physical attack but is a term of art these days for a demand that the purportedly offending posting be removed.
Lenz countered that the video was fair use, YouTube put it back up, and, backed by the Electronic Frontier Foundation,* Lenz sued Universal under that part of the U.S. Code comprising the Digital Millennium Copyright Act – specifically, the section which provides that, if you falsely allege copyright infringement (the section says “knowingly or materially misrepresents … that material or activity is infringing”), you are “liable for any damages.” She argued that the video’s use of Prince’s song was so minimal or incidental as to be “non-infringing,” as intellectual property law puts it.
Late last year, the U.S. Court of Appeals for the Ninth Circuit ruled that Lenz’s claim should proceed to trial, dismissing Universal’s motion to scrap it as being without substance. The court reaffirmed that, under U.S. law, “fair use” of copyrighted material means authorized use; it is not an exemption for an otherwise infringing use.
More significantly, the court added that, before so much as sending a takedown notice, let alone instigating more drastic measures such as suing for infringement, copyright holders are obliged to consider whether the use is fair at law. In Lenz’s case, that is, Universal should not have sent the takedown notification reflexively, without trying to work out, in good faith, whether her video made fair use of “Let’s Go Crazy.” Universal contends that its protocols for copyright oversight ensure such good faith enforcement.
So now a trial court must decide if that is the case with the “dancing baby video.” As the appeals court puts it, Lenz’s
claim boils down to a question of whether copyright holders have been abusing the extrajudicial takedown procedures provided for in the DMCA [(the digital copyright legislation)] by declining to first evaluate whether the content qualifies as fair use. We hold that the statute requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.
*A big thank you to my savvy friend and loyal blog follower Donna Jez for asking, “Who’s financing her case?”
The Supreme Court of Canada has given the Liberal government until June 6 to amend the Criminal Code so that “physician-assisted death” is legal in specified circumstances. Yet some Senate members have threatened to delay the amendment’s passage. While this looks like a potential contempt of court, some of the senators might argue that it is the House of Commons, or at least those MPs who seek to pass the existing bill into law, acting contemptuously toward the high court’s order.
Given that the government has promised a free vote on the bill, no Liberal “whipping” is possible. Whipping wouldn’t help in any event. When the Liberals sat in opposition, leader Justin Trudeau extravagantly (if fecklessly) cocked a snook at the Senate as a poor man’s House of Lords (packed by successive governments with their toadies and bagpersons) by transubstantiating Liberal senators into Independents outside his control. In any event, the so-called Liberal leader in the upper chamber, James Cowan, told the Globe and Mail that Bill C-14 does not reflect the Supreme Court’s criteria – that the procedure could be granted to “a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition … that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”
The bill requires that applicants for such procedures be 18, that their death be “reasonably foreseeable,” and that their request for assistance be in writing. Two medical practitioners must certify that the medical condition meets the bill’s criteria.
Senator Cowan believes the bill is overly restrictive, particularly because it excludes too many possible applicants, and because “reasonably foreseeable” is imprecise. (He served on the parliamentary committee appointed by the government to advise on how the bill should be drafted. The recommendations suggested that people in the early, “competent” stages of mental impairment be permitted to request medically-induced death should they decline to a certain point, and that in certain instances of extreme suffering such assistance should be available to minors.) While he told the Globe’s Laura Stone that “it’s not the end of the world if the bill doesn’t pass” by June 6, he could argue that, insofar as it does not substantially track the court’s ruling (in his view), it would be the Commons in breach of the deadline order.
It is of course a grave matter, fundamentally unconstitutional and a threat to the rule of law, for Parliament to snub the nation’s highest court. Should the delay be caused by unelected senators frustrating the will of legislators chosen by the electorate, the insult is yet graver. But if the deadline passes without legislation in place, no matter which house might be said to commit the contempt, the problem is sanction. The high court possesses inherent power to punish for such offences (by sundry means, including fines and imprisonment), but in this case, to punish whom? The parliamentarians who actively delay the bill? The entire Senate or Commons? Both houses? How?
Lawmakers are not above the law, and the court already has extended the deadline for them once (by six months, after a change in government). Directors and officers are liable for contempts by their corporations, as are union leaders where the contempts are organized. Arguably, house leaders, including cabinet ministers and prime ministers, could be liable for contempts if disobedience of court orders is party policy, more or less. (Where the contempt is clearly by individual choice, the courts do not act against the collective.) If Parliament misses this second deadline, we probably won’t see Cowan or the PM dining on Her Majesty’s jailhouse bologna until they “purge their contempt.” But what message would this delinquency send about the rule of law – among those meant to give it life and husband it?
What’s surprising about the documents exposing tax shelters in Panama is that so many people seem surprised. Tax shelters as Satan’s bank account are a staple of popular culture – in novels by Scott Turow and John Grisham, for example, the films based on them, and Sarah Caudwell’s The Sirens Sang of Murder, about tax havens in the Channel Islands. The latter comic mystery novel is particularly apt in that it mentions the lawsuit that makes these shenanigans legal in many instances, The Duke of Westminster’s Case. There, the Judicial Committee of the House of Lords distinguishes tax avoidance – which is legal and euphemized as “tax planning” – from tax evasion, which is illegal but in certain circles rationalized as … tax planning. As Lord Tomlin puts it:
Every man is entitled if he can to order his affairs so that the tax attaching under the appropriate Acts [(legislation)] is less than it otherwise would be. If he succeeds in ordering them so as to secure this result, then, however unappreciative the Commissioners of Inland Revenue or his fellow tax-payers may be of his ingenuity, he cannot be compelled to pay an increased tax.
Such “ordering” is avoidance. It is true, of course, that if you’re setting up corporations, and in many cases, corporations within corporations, to “shelter” your wealth offshore, hiding the principal shareholder (often, the lawyer who creates the company will be identified as its director), there’s a better than even chance that you are slinking into the far territory of evasion. What the news media miss about this is that, where we can identify the tax-evading owners (or owners who are using the corporations to launder funds or hide money obtained illegally), we have a legal remedy: we can “pierce the corporate veil” and pursue the owners personally, for civil as well as criminal remedies.
True enough, Panama (or Liechtenstein or Jersey or the Caymans…) is a bit of a schlep just to avoid a few hundred bucks in tax. Even if the sheltering corporation is perfectly lawful, a really solid citizen would not engage in what has become known as “aggressive avoidance” of this sort. Aggressive avoiders are probably not paying their way at home, never mind that they “order their affairs” lawfully (more or less) to remit less tax. Thus do we suddenly hear politicians – the same politicians who take money from high rollers for lobbying opportunities at “dinners” (see also) – say that they are thinking about making such “aggression” a species of (unlawful) evasion. Don’t hold your breath. People who pay lawyers and accountants big money so as to avoid tax enjoy the means to keep on keepin’ on avoidin’, never mind – and often because of – political machinations. Thus Warren Buffett’s purported bafflement about having a lower tax rate than his secretary. The tax lawyer’s motto might as well be, When a loophole closes, a crack opens.
What we’re really looking at here – what really has the news media and public fulminating, though mostly the outrage is more reflexive than thoughtful – is the gap between law and justice. That is, tax avoidance might be lawful, but to the extent that it places a disproportionate burden on other taxpayers, it’s unjust. Consider “How a couple with a net worth of $10 million and annual income of $215,000 can pay $0 in income tax,” while middle-class taxpayers in Canada can be “tithed” for as much as 33 per cent of their income.
Even some lawyers forget that, in Nazi Germany, the United States as late as the 1960s, and apartheid-era South Africa, homicidal racism was lawful. Tax avoidance might be legal, but where it verges on evasion, particularly evasion of social responsibility, it is at least unethical and anti-social, and can be immoral. Justice melds morality and ethics onto law, demanding that the individual contribute to the community according to that individual’s abilities. Ordinary taxpayers understand that paying their fair share includes taking advantage of legitimate deductions and shelters, such as tax-free savings plans and, to assist national economic development, lower taxation rates on certain investment income such as dividends and capital gains. What angers them is their neighbours cadging a free ride when they can afford the fare.
The last antecedent rule of comma use. The name alone could put you to sleep before you learn what it is, like it did in grade eight. But go get a coffee: ignorance in this case is not somnolent bliss. Consider: which would you confess – I love eating children and books, or I love eating, children, and books? And are you talking TO children in the second case, or saying you like them? At law, construing commas can prove costly – most recently that Avondale Lockhart goes to prison for at least ten years.
That’s what the U.S. Supreme Court said, six judges to two, on March 1. Before them was a section of the U.S. Code increasing prison sentences for sex offenders with prior convictions “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”
Lockhart had pleaded guilty to possessing illegal pornography. He had a previous conviction for first-degree sexual abuse of his 53-year-old girlfriend, but said he was not subject to the increased prison term because the earlier conviction did not involve a minor or ward. He argued that the last phrase of the section, “or abusive sexual conduct involving a minor or ward,” applied to the everything in the section – that it was triggered only if you had previous convictions involving the young or the incompetent. And the series qualifier rule of grammar supports this: the final phrase in a series with commas refers back to everything before it.
The court disagreed, ruling that, by virtue of the last antecedent rule, the last comma before the last clause means that clause stands apart from the others: “minor or ward” applies only to that bit after the second comma, such that Lockhart’s prior conviction, for abusing an adult, triggers the “enhanced” term of imprisonment.
On first reading the majority opinion, you wonder if the spirit of Justice Scalia lives on, bending grammar and syntax to a foregone conclusion. But it is written by Sonia Sotomayor, of the court’s left wing, concurred in by the demonstrably liberal Ruth Bader-Ginsburg, and on second and third thought, it seems that their reading is as strong as Lockhart’s – but not that he should serve the extra time.
There is law in Canada that supports the majority view. Most notorious is the “million-dollar comma case,” in which the Canadian Radio and Telecommunications Commission considered on what terms Rogers Communications could use Bell Aliant’s utility poles. Their agreement said it was “effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one year prior notice in writing by either party.” Wanting to charge more money as soon as possible, Bell argued that the last phrase meant it could terminate the agreement at any time, on a year’s notice. Rogers said that the series qualifier rule applied (the last phrase modified everything), such that Bell could terminate only after five years. The CRTC ruled in Rogers’ favour. On appeal, however, it relied on the French version of the provision, which had no comma before the “unless and until terminated” bit, meaning that the termination clause applied only after five years. The last antecedent rule won the day, at last, but – and this is important – only after the second comma was dropped.
A couple of years later, the Alberta Court of Queen’s Bench considered a contingency fee agreement between a lawyer and client, who happened to be the lawyer’s assistant and who handled these sorts of agreements constantly. Alberta court rule 616 said that all such agreements (whereby lawyers get a percentage of damages in successful lawsuits) must specify the lawyer’s “maximum fee payable, or the maximum rate calculated, after deducting disbursements.” Yep, two commas again. The province’s law society interpreted the rule to mean that, no matter whether the client opted for the maximum fee or the maximum rate payable, disbursements (office expenses and other costs that aren’t legal work per se) were to be deducted before the fee was calculated. That is, “after deducting disbursements” applied to the whole series of clauses.
But the court interpreted the rule as though there were no second comma: the client was responsible to pay the lawyer 35% of his maximum fee, including disbursements. While it was arguable that the series qualifier rule applied, Justice Mason said, the client-protection policy behind the rule, the agreement, and the client’s understanding of it suggested different, such that the ambiguity was to be construed in her favour. Justice Mason noted, “Had Rule 616 been phrased: ‘… a contingency fee agreement must contain a statement about the fee payable after deducting disbursements or the maximum rate calculated after deducting disbursements,’ this case would likely not be before me.”
This is more or less what the dissent holds (reasonably) in the Lockhart – given that either the series qualifier or last antecedent rule might apply, the clause is too ambiguous to be interpreted against the offender.
In each of these cases, more careful drafting would have prevented undue expense, lost court time, and perhaps an unreasonably harsh prison sentence. If Congress had in fact wanted to impose a mandatory minimum sentence for any repeat sexual assault, on any person, it could have said so clearly: “The enhanced sentence applies where the offender has been convicted of a crime relating to sexual abuse or aggravated sexual abuse on any person.” No comma necessary.