Argh Fuck Kill: The Story of the DayGlo Abortions (23 page)

All too soon, the DayGlos were back in Victoria again, where they weren’t much different from everyone else. Not only that, but now they were homeless. While they were gone, Rancid Randy, weary of being a slumlord, had decided to sell his land on Mason Street, leaving Spud and Bonehead with nowhere to live. “Basically, no one was paying rent,” remembers Spud. Not just that, but one of the tenants accidentally started a fire by placing a space heater too close to a futon. The damage, while not severe, was enough to make Randy throw in the towel. To make matters worse, the houses had been ransacked. Thieves made off with a heavy pot-bellied wood stove that Spud and his roommates had re-cently installed. Neighbourhood kids saw what was going on and also broke in to help themselves. Though Spud and his roommates eventually got most of their stuff back—but not the stove—they were still without accommodations. The houses were gone, sold for a mere fraction of what they are worth today.

Spud and Bonehead slept around while looking for new digs. It was only when the band was on tour that they were afforded any sort of special treatment. At home, they were just those noisy punk rockers who used to live on Mason Street. Weren’t they involved in some sort of court case?

Cretin and Angie had been busy, and in August of 1989, their first daughter Paris was born. The squalling infant was a welcome diversion from the stress of the upcoming trial. Who knew a kid could make so much noise?

Winter arrived and with it came boredom and rain. The band tried to forget about the legal mess by playing shows and getting drunk. More time elapsed with still no firm date for the trial. In an attempt to prove that the charges were unconstitutional, Marlys hired Professor Edward Donnerstein from the University of California in Berkeley. Though Donnerstein made several good points, the judge eventually ruled that the trial would proceed as planned. The morally-upright and priggish Canadian record industry could not be persuaded to pay for the professor’s testimony, and instead The Playboy Foundation stepped up to the plate.
Hustler
magazine was also asked to contribute but declined. This was a surprise, since porn magnate Larry Flynt could usually be counted on to defend such things. Perhaps Mr. Flynt was not a DayGlos fan.

As the new year loomed nearer, the boys stuck close to home. They played gigs in both Victoria and Vancouver, but did not venture farther than that. 1990 arrived, and still the case had not gone to trial. Although the band continued to write songs in anticipation of the next album, no date was set to record the material. Relations between Fringe Product and the DayGlo Abortions deteriorated further as legal costs mounted. This was a time of uncertainty and pressure, and that pressure would only increase as the court case drew nearer. The DayGlos were in limbo.

Bonehead eventually moved into a house on Scott Street with a girl named Vanessa and several female punkers from Mason Street. Spud continued to live rent-free on the bus, crashing occasionally with friends. Now that the bass player could no longer park Myrtle outside the houses on Mason Street, he moved the bus around while drifting from place to place. One day, as Myrtle sat innocently on a side street, the City of Victoria towed her away and crushed her. “There was a whole whack of shit in her, too,” moans Spud. “Tax receipts, mementos, clothes—all sorts of stuff.” RIP Myrtle aka Jezebel.

On February 13,1990, the Crown finally told the defence which songs they considered to be obscene. They were as follows: “Hide the Hamster,” “Argh Fuck Kill,” “Proud to be Canadian,” “Kill the Hosers,” “Religious Bumfucks,” “Suicide,” “Fuck Satan to Death,” “Kill Johnny Stiff,” and “Here Today, Guano Tomorrow.” Marlys Edwardh then asked Murray Acton to describe what his songs were about, and the singer responded eloquently. In his written statement, Acton defended his songs well, except for “Kill Johnny Stiff,” which he admitted was difficult to justify. “No names have been changed to protect the guilty,” Cretin acknowledged. Still, he was far more articulate than anyone—except maybe Ben Hoffman— expected him to be. Acton wrapped up his testimony by saying that if a novel involving a murder wasn’t obscene, then neither were his lyrics. After all, doesn’t society consider murder to be obscene?

Following this, Marlys tried to have the case tried by a judge alone because she didn’t trust God-fearing Ontarians to deliver a fair verdict. The judge flatly rejected the appeal, and a trial date was finally set. The wait was almost over.

At last the day arrived. The DayGlo Abortions were not invited to attend the proceedings, and were, in fact, told to stay away. On Monday, November 5th, 1990, the court case got underway in Ottawa. The jurors, chosen from a selection of average citizens, were about to hear more than a few unsavoury lyrics. Basically, if those jurors didn’t have a sense of humour, or if they were devout Christians, the DayGlos were screwed. A guilty verdict would not really surprise anyone, although Cretin still held out hope that his fellow citizens would not be so blind as to convict.

Crown Attorney Celynne Dorval spent two hours outlining her case before playing
Here Today, Guano Tomorrow
and
Feed Us a Fetus
for the jury. According to a reporter loyal to Cretin, the jurors found the albums slightly amusing if not disgusting. This was not what the prosecution was looking for, so they brought in an English professor to read the lyrics, unaccompanied by music. Taken in this dry context, the jury suddenly saw the case from the prosecution’s point of view. The courtroom was especially hushed as the academician read lyrics from Cretin’s
tour de force
“Hide the Hamster.” When the professor read “each hamster has an orgasm at the very instant of its death,” the room was so still that jurors could have heard a pin drop. Suddenly, the case wasn’t funny any more. The poor little rodents!

Then it was Marlys Edwardh’s turn to present her defence, which she did for the rest of the day. On Tuesday, Daniel Richler took the stand, followed on Wednesday by an academic witness with the intimidating name of Dr. Mean. On Thursday, the Crown and the defence summarized their cases, and the judge instructed the jurors on the law. The Crown must have felt they had a solid case, for they did not present any witnesses.

Daniel Richler was credible on the stand. The author obviously wasn’t a scummy punk rocker, yet he had an insider’s knowledge of the subculture. Daniel maintained that the songs were written from the point of view of fictional characters, and that they were not designed or intended to be sexually exciting. Further, the author explained that the abundance of swear words had nothing to do with sex and were merely a device to help the songwriter connect with his audience. The jurors probably had little problem believing this, since they had already heard the albums. Still, they wondered if the Day-Glo Abortions had crossed the line. The problem was that no one seemed to know just exactly where that line was.

Dr. Mean, who counselled troubled teens for a living, treated the albums as he would a disturbed patient. According to the good doctor, the overall theme of the material was desperation, despondence, and impotence. The violence, he explained, was simply an attention-getting measure. Moreover, he asserted that the music allowed youths to vent pent-up frustration and rage in a harmless manner, without any of the destruction expressed in the lyrics. Although Dr. Mean had obviously never been to a DayGlos show, which were anything but harmless, he insisted that the youths could identify with the music, even if it was in poor taste. Either the doctor didn’t understand the humour inherent in the lyrics, or he didn’t think the jurors would get it. Neither witness tried to explain to the jury that humour was the primary ingredient in
all
DayGlo Abortions recordings, although that should have been abundantly clear. What the defence needed was a few punk rockers to tell the jury just how funny they found the songs to be. As it was, the jurors were not laughing.

Marlys Edwardh summed up her defence simply and accurately. She told the jury that they could not find her client guilty unless they found sex, sex and violence, or harm and cruelty to be the dominant themes. Again, she went through each song, pointing out that sex was not the defining characteristic. In conclusion, Marlys emphasized that the albums did not cause harm. In fact, she claimed that the material had significant social value. Whether or not the jury bought this remains to be seen, but at least they had plenty to chew on.

Crown Attorney Celynne Dorval summarized the Crown’s case by insisting that the songs did not use sex and violence as expressions of alienation and anger, but rather as tools with which to sell albums. Further, she maintained that the material fell outside the borders of community standards and begged the jury to ignore the supposed experts and rely on common sense. In the end, since there were no firm guidelines, the jurors were sent to the jury room to decide not just the fate of Fringe Product, but that of the DayGlo Abortions, and the freedom of every Canadian recording artist as well. There is little doubt that Ben Hoffman wished they had picked those jurors from the crowd at a DayGlos concert. Anything could happen.

On November 8th, the last day of the proceedings, the DayGlo Abortions gathered at a Victoria bar called Big Bad John’s to await the verdict. Since the band was not allowed to attend the trial, a reporter in Ottawa would phone Cretin periodically to give him blow-by-blow updates on the proceedings. Jesus Bonehead lit a smoke and frowned. This was going to be a long day.

From time to time, a clerk at the front desk of the hotel would page Cretin in the bar, and the bandleader would get up to answer the phone. After listening intently, he would then return to the bar and relay the news. Once, the jurors told the judge they had failed to reach a verdict. They obviously could not agree, which meant that the decision could go either way. More nail-biting ensued as the judge sent the jurors back to try again. The DayGlo Abortions were catching a buzz now, laughing nervously and trying to pretend they weren’t worried. After all, Fringe Product was on trial, not them. What was the worst thing that could possibly happen? At this point, it only made sense to consider the bleakest possible scenario.

Marlys Edwardh also waited nervously for the jury to reappear. Finally, after what seemed like years but was only ten hours, the jurors emerged from their hidey-hole. The DayGlo Abortions had gone home drunk by now, and it wasn’t until the next day that Cretin learned the verdict. Though it had been very close, the decision had come down six to four in favour of Fringe Product. As hungover as he was, the DayGlo frontman breathed a stale sigh of relief. Perhaps now the band could get on with the business of making and selling punk rock records, without having to worry if they would be taken to task for their lyrics or artwork. This was a good day for all freedom-loving Canadians.

Disappointing, however, was the fact that since the case had been heard by a judge and jury rather than by a judge alone, none of the proceedings could be considered a binding precedent. In other words, Canada’s archaic Criminal Code regarding obscenity in popular music was still open to interpretation. The music industry had not supported the DayGlo Abortions, but they must have been startled to learn that record labels and musicians could still be charged as if the case had never happened.

On November 11th, 1990, three short days after the trial ended in acquittal, Jello Biafra, Nomeansno, and Evil Twang held a benefit concert at the Commo-dore Ballroom that netted $8,000. The money went to Fringe Product to help defray court costs, much of which was still outstanding. At the show, Cretin thanked Jello personally, and offered his hand but the ex-Dead Kennedy singer and record label mogul kept his mitts in his pockets. “Jello hates my guts,” grins Cretin. “He thinks that I go way overboard and that I laugh at the wrong sort of things. Jello thought I was very irresponsible and he let me know that.” Still, and even though Jello Biafra was not a DayGlo Abortions fan, the frontman was able to set aside his personal tastes to combat the greater evil, which, in this case, was censorship. Every man must have principles, even one who hates songs in which Eskimos are anally penetrated.

The late Tim Yohannon, editor of long-running punk magazine
Maximum Rock & Roll,
also questioned Cretin’s motives. “At first, Tim wasn’t convinced that we weren’t a bunch of Nazis,” recalls Cretin. “After a couple of interviews, he started to wrap his head around where I was coming from. Earlier, Tim had really been on my case, telling me how irresponsible I was. He warned me that a lot of people weren’t smart enough to see the satire in my lyrics, but I can’t censor my art.” After learning that a Klansman in North Carolina had given Mike Anus a KKK joke book, Tim’s words echoed in his head. The Klansman, obviously, was stupid enough to believe that the DayGlo Abortions had racist views. Granted, Nazis are below average intelligence, but now Cretin understood Tim’s point. “I had a lot of respect for Tim Yo, and he gave us lots of press,” recalls the DayGlo singer. Sadly, Tim passed away from non-Hodgkin’s lymphoma in 1998.

Despite the not guilty verdict, this was the beginning of the end for Fringe Product. Ben Hoffman claimed that the case had cost him a great deal of money, even though he still owed Marlys Edwardh $35,000 to $45,000. Spud believes that Fringe received much more than the $20,000 to $25,000 the firm reported it had received in donations from outside sources. In fact, and even though Fringe Product never regained its position as the country’s leading alternative label, the DayGlo Abortions still feel that Ben Hoffman profited from the ordeal. Fringe called it quits in 1996, and Record Peddler, which cut back both as a retailer and a distributor in the aftermath of the trial, limped along until 2001 before finally throwing in the towel. The awful thing about the charges is that they were laid in the first place. In a country that is truly free, such a thing would never have happened. Oh Canada…