Bell ExpressVu Limited Partnership v. Rex

Bell ExpressVu Limited Partnership v. Rex
Collection
Supreme Court Judgments
Date
2002-04-26
Neutral citation
2002 SCC 42
Report
[2002] 2 SCR 559
Case number
28227
Judges
L'Heureux-Dubé, Claire; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
British Columbia
Subjects
Appeal
Communications law
Statutes
Notes
SCC Case Information: 28227
Decision Content
Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42
Bell ExpressVu Limited Partnership Appellant
v.
Richard Rex, Richard Rex, c.o.b. as ‘Can‑Am Satellites’,
and c.o.b. as ‘Can Am Satellites’ and c.o.b. as
‘CanAm Satellites’ and c.o.b. as ‘Can Am Satellite’ and
c.o.b. as ‘Can Am Sat’ and c.o.b. as ‘Can‑Am Satellites Digital
Media Group’ and c.o.b. as ‘Can‑Am Digital Media Group’
and c.o.b. as ‘Digital Media Group’, Anne Marie Halley
a.k.a. Anne Marie Rex, Michael Rex a.k.a. Mike Rex,
Rodney Kibler a.k.a. Rod Kibler, Lee‑Anne Patterson,
Michelle Lee, Jay Raymond, Jason Anthony, John Doe 1 to 20,
Jane Doe 1 to 20 and any other person or persons
found on the premises or identified as working at the
premises at 22409 McIntosh Avenue, Maple Ridge,
British Columbia, who operate or work for
businesses carrying on business under the name
and style of ‘Can‑Am Satellites’, ‘Can Am Satellites’,
‘CanAm Satellites’, ‘Can Am Satellite’, ‘Can Am Sat’,
‘Can‑Am Satellites Digital Media Group’, ‘Can‑Am Digital
Media Group’, ‘Digital Media Group’, or one or more of them Respondents
and
The Attorney General of Canada, the Canadian Motion
Picture Distributors Association, DIRECTV, Inc., the
Canadian Alliance for Freedom of Information and Ideas,
and the Congres Iberoamericain du Canada Interveners
Indexed as: Bell ExpressVu Limited Partnership v. Rex
Neutral citation: 2002 SCC 42.
File No.: 28227.
2001: December 4; 2002: April 26.
Present: L’Heureux‑Dubé, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for british columbia
Communications law ‑‑ Radiocommunications ‑‑ Direct‑to‑home distribution of television programming ‑‑ Decoding in Canada of encrypted signals originating from foreign satellite distributor ‑‑ Whether s. 9(1)(c) of Radiocommunication Act prohibits decoding of all encrypted satellite signals, with a limited exception, or whether it bars only unauthorized decoding of signals that emanate from licensed Canadian distributors ‑‑ Radiocommunication Act, R.S.C. 1985, c. R‑2, s. 9(1) (c).
Statutes ‑‑ Interpretation ‑‑ Principles ‑‑ Contextual approach ‑‑ Grammatical and ordinary sense ‑‑ “Charter values” to be used as an interpretive principle only in circumstances of genuine ambiguity.
Appeals ‑‑ Constitutional questions ‑‑ Factual record necessary for constitutional questions to be answered.
The appellant engages in the distribution of direct‑to‑home (DTH) television programming and encrypts its signals to control reception. The respondents sell U.S. decoding systems to Canadian customers that enable them to receive and watch U.S. DTH progamming. They also provide U.S. mailing addresses to their customers who do not have one, since the U.S. broadcasters will not knowingly authorize their signals to be decoded by persons outside the United States. The appellant, as a licensed distribution undertaking, brought an action in the British Columbia Supreme Court, pursuant to ss. 9(1) (c) and 18(1) of the Radiocommunication Act , requesting in part an injunction prohibiting the respondents from assisting resident Canadians in subscribing to and decoding U.S. DTH programming. Section 9(1) (c) enjoins the decoding of encrypted signals without the authorization of the “lawful distributor of the signal or feed”. The chambers judge declined to grant the injunctive relief. A majority of the Court of Appeal held that there is no contravention of s. 9(1) (c) where a person decodes unregulated signals such as those broadcast by the U.S. DTH companies, and dismissed the appellant’s appeal.
Held: The appeal should be allowed. Section 9(1)(c) of the Act prohibits the decoding of all encrypted satellite signals, with a limited exception.
It is necessary in every case for the court charged with interpreting a provision to undertake the preferred contextual and purposive interpretive approach before determining that the words are ambiguous. This requires reading the words of the Act in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament. It is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids, including other principles of interpretation such as the strict construction of penal statutes and the “Charter values” presumption.
When the entire context of s. 9(1)(c) is considered, and its words are read in their grammatical and ordinary sense in harmony with the legislative framework in which the provision is found, there is no ambiguity and accordingly no need to resort to any of the subsidiary principles of statutory interpretation. Because the Radiocommunication Act does not prohibit the broadcasting of subscription programming signals (apart from s. 9(1)(e), which forbids their unauthorized retransmission within Canada) and only concerns decrypting that occurs in Canada or other locations contemplated in s. 3(3) , this does not give rise to any extra‑territorial exercise of authority. Parliament intended to create an absolute bar on Canadian residents’ decoding encrypted programming signals. The only exception to this prohibition occurs where authorization is acquired from a distributor holding the necessary legal rights in Canada to transmit the signal and provide the required authorization. The U.S. DTH distributors in the present case are not “lawful distributors” under the Act. This interpretation of s. 9(1)(c) as an absolute prohibition with a limited exception accords well with the objectives set out in the Broadcasting Act and complements the scheme of the Copyright Act .
The constitutional questions stated in this appeal are not answered because there is no Charter record permitting this Court to address the stated questions. A party cannot rely upon an entirely new argument that would have required additional evidence to be adduced at trial. “Charter values” cannot inform the interpretation given to s. 9(1) (c) of the Radiocommunication Act , for these values are to be used as an interpretive principle only in circumstances of genuine ambiguity. A blanket presumption of Charter consistency could sometimes frustrate true legislative intent, contrary to what is mandated by the preferred approach to statutory construction, and wrongly upset the dialogic balance among the branches of governance. Where a statute is unambiguous, courts must give effect to the clearly expressed legislative intent and avoid using the Charter to achieve a different result.
Cases Cited
Not followed: R. v. Love (1997), 117 Man. R. (2d) 123; R. v. Ereiser (1997), 156 Sask. R. 71; R. v. LeBlanc, [1997] N.S.J. No. 476 (QL); R. v. Thériault, [2000] R.J.Q. 2736, aff’d Sup. Ct. Drummondville, No. 405‑36‑000044‑003, June 13, 2001; R. v. Gregory Électronique Inc., [2000] Q.J. No. 4923 (QL), aff’d [2001] Q.J. No. 4925 (QL); R. v. S.D.S. Satellite Inc., C.Q. Laval, No. 540‑73‑000055‑980, October 31, 2000; R. v. Branton (2001), 53 O.R. (3d) 737; referred to: Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; R. v. Open Sky Inc., [1994] M.J. No. 734 (QL), aff’d (1995), 106 Man. R. (2d) 37, leave to appeal ref’d (1996), 110 Man. R. (2d) 153; R. v. King, [1996] N.B.J. No. 449 (QL), rev’d (1997), 187 N.B.R. (2d) 185; R. v. Knibb (1997), 198 A.R. 161, aff’d [1998] A.J. No. 628 (QL); ExpressVu Inc. v. NII Norsat International Inc., [1998] 1 F.C. 245, aff’d (1997), 222 N.R. 213; WIC Premium Television Ltd. v. General Instrument Corp. (2000), 272 A.R. 201, 2000 ABQB 628; Canada (Procureure générale) v. Pearlman, [2001] R.J.Q. 2026; Ryan v. 361779 Alberta Ltd. (1997), 208 A.R. 396; R. v. Scullion, [2001] R.J.Q. 2018; Stubart Investments Ltd. v. The Queen, [1984] 1 S.C.R. 536; Québec (Communauté urbaine) v. Corp. Notre‑Dame de Bon‑Secours, [1994] 3 S.C.R. 3; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, 2002 SCC 3; R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56; Stoddard v. Watson, [1993] 2 S.C.R. 1069; Pointe‑Claire (City) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015; Marcotte v. Deputy Attorney General for Canada, [1976] 1 S.C.R. 108; R. v. Goulis (1981), 33 O.R. (2d) 55; R. v. Hasselwander, [1993] 2 S.C.R. 398; R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53; Westminster Bank Ltd. v. Zang, [1966] A.C. 182; CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743; Quebec (Attorney General) v. Carrières Ste‑Thérèse Ltée, [1985] 1 S.C.R. 831; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; Bisaillon v. Keable, [1983] 2 S.C.R. 60; Perka v. The Queen, [1984] 2 S.C.R. 232; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; R. v. Gayle (2001), 54 O.R. (3d) 36, leave to appeal to S.C.C. refused, [2002] 1 S.C.R. vii; Moysa v. Alberta (Labour Relations Board), [1989] 1 S.C.R. 1572; Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; Baron v. Canada, [1993] 1 S.C.R. 416; R. v. Mills, [1999] 3 S.C.R. 668; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Cloutier v. Langlois, [1990] 1 S.C.R. 158; R. v. Salituro, [1991] 3 S.C.R. 654; R. v. Golden, [2001] 3 S.C.R. 679, 2001 SCC 83; R.W.D.S.U., Local 558 v. Pepsi‑Cola Canada Beverages (West) Ltd., [2002] 1 S.C.R. 156, 2002 SCC 8; Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Zundel, [1992] 2 S.C.R. 731; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; R. v. Lucas, [1998] 1 S.C.R. 439; Symes v. Canada, [1993] 4 S.C.R. 695; Willick v. Willick, [1994] 3 S.C.R. 670; Vriend v. Alberta, [1998] 1 S.C.R. 493.
Statutes and Regulations Cited
Broadcasting Act , Direction to the CRTC (Ineligibility of Non‑Canadians), SOR/96‑192.
Broadcasting Act , S.C. 1991, c. 11 , ss. 2(1) “broadcasting”, “broadcasting undertaking”, “distribution undertaking”, (2) [rep. & sub. 1993, c. 38, s. 81], (3), 3.
Canadian Charter of Rights and Freedoms , ss. 1 , 2( b ) .
Copyright Act , R.S.C. 1985, c. C‑42 , ss. 21 [rep. 1994, c. 47, s. 59; ad. 1997, c. 24, s. 14], 31(2) [rep. c. 10 (4th Supp.), s. 7; ad. 1988, c. 65, s. 63; s. 28.01 renumbered as s. 31, 1997, c. 24, s. 16].
Interpretation Act , R.S.C. 1985, c. I‑21 , ss. 10 , 12 .
Radiocommunication Act , R.S.C. 1985, c. R‑2 , ss. 2 , “broadcasting”, “encrypted” [ad. 1991, c. 11, s. 81], “lawful distributor” [idem], “radiocommunication” or “radio”, “subscription programming signal” [idem], 3(3)(a), (b) [rep. & sub. 1989, c. 17, s. 4], (c) [idem; am. 1996, c. 31, s. 94], 5(1)(a), 9(1)(c) [ad. 1989, c. 17, s. 6, am. 1991, c. 11, s. 83], (e) [ad. 1991, c. 11, s. 83], 10(1)(b) [ad. 1989, c. 17, s. 6], (2.1) [ad. 1991, c. 11, s. 84], (2.5) [idem], 18(1) [idem, s. 85], (6) [idem].
Rules of the Supreme Court of Canada, SOR/83‑74, Rule 32.
Authors Cited
Canadian Oxford Dictionary. Edited by Katherine Barber. Toronto: Oxford University Press, 1998, "a".
Crane, Brian A., and Henry S. Brown. Supreme Court of Canada Practice 2000. Scarborough, Ont.: Thomson Professional Publishing Canada, 1999.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Eliadis, F. Pearl, and Stuart C. McCormack. “Vanquishing Wizards, Pirates and Musketeers: The Regulation of Encrypted Satellite TV Signals” (1993), 3 M.C.L.R. 211.
Handa, Sunny, et al. Communications Law in Canada, loose‑leaf ed. Toronto: Butterworths, 2000 (including Service Issues 2001).
Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994.
Willis, John. “Statute Interpretation in a Nutshell” (1938), 16 Can. Bar Rev. 1.
APPEAL from a judgment of the British Columbia Court of Appeal (2000), 191 D.L.R. (4th) 662, 9 W.W.R. 205, 142 B.C.A.C. 230, 233 W.A.C. 230, 79 B.C.L.R. (3d) 250, [2000] B.C.J. No. 1803 (QL), 2000 BCCA 493, dismissing an appeal from a decision of the British Columbia Supreme Court, [1999] B.C.J. No. 3092 (QL), refusing to grant an injunction. Appeal allowed.
K. William McKenzie, Eugene Meehan, Q.C., and Jessica Duncan, for the appellant.
Alan D. Gold and Maureen McGuire, for all respondents except Michelle Lee.
Graham R. Garton, Q.C., and Christopher Rupar, for the intervener the Attorney General of Canada.
Roger T. Hughes, Q.C., for the intervener the Canadian Motion Picture Distributors Association.
Christopher D. Bredt, Jeffrey D. Vallis and Davit D. Akman, for the intervener DIRECTV, Inc.
Ian W. M. Angus, for the intervener the Canadian Alliance for Freedom of Information and Ideas.
Alan Riddell, for the intervener the Congres Iberoamerican du Canada.
The judgment of the Court was delivered by
IACOBUCCI J. —
I. Introduction
1 This appeal involves an issue that has divided courts in our country. It concerns the proper interpretation of s. 9(1) (c) of the Radiocommunication Act , R.S.C. 1985, c. R-2 (as am. by S.C. 1991, c. 11 , s. 83). In practical terms, the issue is whether s. 9(1)(c) prohibits the decoding of all encrypted satellite signals, with a limited exception, or whether it bars only the unauthorized decoding of signals that emanate from licensed Canadian distributors.
2 The respondents facilitate what is generally referred to as “grey marketing” of foreign broadcast signals. Although there is much debate -- indeed rhetoric -- about the term, it is not necessary to enter that discussion in these reasons. Rather, the central issue is the much narrower one surrounding the above statutory provision: does s. 9(1)(c) operate on these facts to prohibit the decryption of encrypted signals emanating from U.S. broadcasters? For the reasons that follow, my conclusion is that it does have this effect. Consequently, I would allow the appeal.
II. Background
3 The appellant is a limited partnership engaged in the distribution of direct-to-home (“DTH”) television programming. It is one of two current providers licensed by the Canadian Radio-television and Telecommunications Commission (“CRTC”) as a DTH distribution undertaking under the Broadcasting Act , S.C. 1991, c. 11 . There are two similar DTH satellite television distributors in the United States, neither of which possesses a CRTC licence. The door has effectively been shut on foreign entry into the regulated Canadian broadcast market since April 1996, when the Governor in Council directed the CRTC not to issue, amend or renew broadcasting licences for non-Canadian applicants (SOR/96-192). The U.S. companies are, however, licensed by their country’s Federal Communications Commission to broadcast their signals within that country. The intervener DIRECTV is the larger of these two U.S. companies.
4 DTH broadcasting makes use of satellite technology to transmit television programming signals to viewers. All DTH broadcasters own or have access to one or more satellites located in geosynchronous orbit, in a fixed position relative to the globe. The satellites are usually separated by a few degrees of Earth longitude, occupying “slots” assigned by international convention to their various countries of affiliation. The DTH broadcasters send their signals from land-based uplink stations to the satellites, which then diffuse the signals over a broad aspect of the Earth’s surface, covering an area referred to as a “footprint”. The broadcasting range of the satellites is oblivious to international boundaries and often extends over the territory of multiple countries. Any person who is somewhere within the footprint and equipped with the proper reception devices (typically, a small satellite reception dish antenna, amplifier, and receiver) can receive the signal.
5 The appellant makes use of satellites owned and operated by Telesat Canada, a Canadian company. Moreover, like every other DTH broadcaster in Canada and the U.S., the appellant encrypts its signals to control reception. To decode or unscramble the appellant’s signals so as to permit intelligible viewing, customers must possess an additional decoding system that is specific to the appellant: the decoding systems used by other DTH broadcasters are not cross-compatible and cannot be used to decode the appellant’s signals. The operational component of the decoding system is a computerized “smart card” that bears a unique code and is remotely accessible by the appellant. Through this device, once a customer has chosen and subscribed to a programming package, and rendered the appropriate fee, the appellant can communicate to the decoder that the customer is authorized to decode its signals. The decoder is then activated and the customer receives unscrambled programming.
6 The respondent, Richard Rex, carries on business as Can-Am Satellites. The other respondents are employees of, or independent contractors working for, Can-Am Satellites. The respondents are engaged in the business of selling U.S. DTH decoding systems to Canadian customers who wish to subscribe to the services offered by the U.S. DTH broadcasters, which make use of satellites owned and operated by U.S. companies and parked in orbital slots assigned to the U.S. The footprints pertaining to the U.S. DTH broadcasters are large enough for their signals to be receivable in much of Canada, but because these broadcasters will not knowingly authorize their signals to be decoded by persons outside of the U.S., the respondents also provide U.S. mailing addresses for their customers who do not already have one. The respondents then contact the U.S. DTH broadcasters on behalf of their customers, providing the customer’s name, U.S. mailing address, and credit card number. Apparently, this suffices to satisfy the U.S. DTH broadcasters that the subscriber is resident in the U.S., and they then activate the customer’s smart card.
7 In the past, the respondents were providing similar services for U.S. residents, so that they could obtain authorization to decode the Canadian appellant’s programming signals. The respondents were authorized sales agents for the appellant at the time, but because this constituted a breach of the terms of the agency agreement, the appellant unilaterally terminated the relationship.
8 The present appeal arises from an action brought by the appellant in the Supreme Court of British Columbia. The appellant, as a licensed distribution undertaking, commenced the action pursuant to ss. 9(1) (c) and 18(1) of the Radiocommunication Act . As part of the relief it sought, the appellant requested an injunction prohibiting the respondents from assisting resident Canadians in subscribing to and decoding U.S. DTH programming. The chambers judge hearing the matter declined to grant the injunctive relief, and directed that the trial of the matter proceed on an expedited basis. On appeal of the chambers judge’s ruling, Huddart J.A. dissenting, the Court of Appeal for British Columbia dismissed the appellant’s appeal.
9 The appellant applied for leave to appeal to this Court, which was granted on April 19, 2001, with costs to the applicant in any event of the cause ([2001] 1 S.C.R. vi). The Chief Justice granted the respondents’ subsequent motion to state constitutional questions on September 4, 2001.
III. Relevant Statutory Provisions
10 The Radiocommunication Act is one of the legislative pillars of Canada’s broadcasting framework. It and another of the pillars, the Broadcasting Act , provide context that is of central importance to this appeal. I set out the most pertinent provisions below. I will cite other provisions throughout the course of my reasons as they become relevant.
11 Radiocommunication Act , R.S.C. 1985, c. R-2
2. In this Act,
“broadcasting” means any radiocommunication in which the transmissions are intended for direct reception by the general public;
...
“encrypted” means treated electronically or otherwise for the purpose of preventing intelligible reception;
“lawful distributor”, in relation to an encrypted subscription programming signal or encrypted network feed, means a person who has the lawful right in Canada to transmit it and authorize its decoding;
...
“radiocommunication” or “radio” means any transmission, emission or reception of signs, signals, writing, images, sounds or intelligence of any nature by means of electromagnetic waves of frequencies lower than 3 000 GHz propagated in space without artificial guide;
...
“subscription programming signal” means radiocommunication that is intended for reception either directly or indirectly by the public in Canada or elsewhere on payment of a subscription fee or other charge;
9. (1) No person shall
...
(c) decode an encrypted subscription programming signal or encrypted network feed otherwise than under and in accordance with an authorization from the lawful distributor of the signal or feed;
...
10. (1) Every person who
...
(b) without lawful excuse, manufactures, imports, distributes, leases, offers for sale, sells, installs, modifies, operates or possesses any equipment or device, or any component thereof, under circumstances that give rise to a reasonable inference that the equipment, device or component has been used, or is or was intended to be used, for the purpose of contravening section 9,
is guilty of an offence punishable on summary conviction and is liable, in the case of an individual, to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding one year, or to both, or, in the case of a corporation, to a fine not exceeding twenty-five thousand dollars.
...
(2.1) Every person who contravenes paragraph 9(1)(c) or (d) is guilty of an offence punishable on summary conviction and is liable, in the case of an individual, to a fine not exceeding ten thousand dollars or to imprisonment for a term not exceeding six months, or to both, or, in the case of a corporation, to a fine not exceeding twenty-five thousand dollars.
...
(2.5) No person shall be convicted of an offence under paragraph 9(1)(c), (d) or (e) if the person exercised all due diligence to prevent the commission of the offence.
...
18. (1) Any person who
(a) holds an interest in the content of a subscription programming signal or network feed, by virtue of copyright ownership or a licence granted by a copyright owner,
...
(c) holds a licence to carry on a broadcasting undertaking issued by the Canadian Radio-television and Telecommunications Commission under the Broadcasting Act , or
...
may, where the person has suffered loss or damage as a result of conduct that is contrary to paragraph 9(1)(c), (d) or (e) or 10(1)(b), in any court of competent jurisdiction, sue for and recover damages from the person who engaged in the conduct, or obtain such other remedy, by way of injunction, accounting or otherwise, as the court considers appropriate.
...
(6) Nothing in this section affects any right or remedy that an aggrieved person may have under the Copyright Act .
Broadcasting Act , S.C. 1991, c. 11
2. (1) In this Act,
“broadcasting” means any transmission of programs, whether or not encrypted, by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus, but does not include any such transmission of programs that is made solely for performance or display in a public place;
...
“broadcasting undertaking” includes a distribution undertaking, a programming undertaking and a network;
...
“distribution undertaking” means an undertaking for the reception of broadcasting and the retransmission thereof by radio waves or other means of telecommunication to more than one permanent or temporary residence or dwelling unit or to another such undertaking;
...
(2) For the purposes of this Act, “other means of telecommunication” means any wire, cable, radio, optical or other electromagnetic system, or any similar technical system.
(3) This Act shall be construed and applied in a manner that is consistent with the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings.
3. (1) It is hereby declared as the broadcasting policy for Canada that
(a) the Canadian broadcasting system shall be effectively owned and controlled by Canadians;
(b) the Canadian broadcasting system, operating primarily in the English and French languages and comprising public, private and community elements, makes use of radio frequencies that are public property and provides, through its programming, a public service essential to the maintenance and enhancement of national identity and cultural sovereignty;
...
(d) the Canadian broadcasting system should
(i) serve to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada,
(ii) encourage the development of Canadian expression by providing a wide range of programming that reflects Canadian attitudes, opinions, ideas, values and artistic creativity, by displaying Canadian talent in entertainment programming and by offering information and analysis concerning Canada and other countries from a Canadian point of view,
(iii) through its programming and the employment opportunities arising out of its operations, serve the needs and interests, and reflect the circumstances and aspirations, of Canadian men, women and children, including equal rights, the linguistic duality and multicultural and multiracial nature of Canadian society and the special place of aboriginal peoples within that society, and
(iv) be readily adaptable to scientific and technological change;
...
(t) distribution undertakings
(i) should give priority to the carriage of Canadian programming services and, in particular, to the carriage of local Canadian stations,
(ii) should provide efficient delivery of programming at affordable rates, using the most effective technologies available at reasonable cost,
(iii) should, where programming services are supplied to them by broadcasting undertakings pursuant to contractual arrangements, provide reasonable terms for the carriage, packaging and retailing of those programming services, and
(iv) may, where the Commission considers it appropriate, originate programming, including local programming, on such terms as are conducive to the achievement of the objectives of the broadcasting policy set out in this subsection, and in particular provide access for underserved linguistic and cultural minority communities.
(2) It is further declared that the Canadian broadcasting system constitutes a single system and that the objectives of the broadcasting policy set out in subsection (1) can best be achieved by providing for the regulation and supervision of the Canadian broadcasting system by a single independent public authority.
Copyright Act , R.S.C. 1985, c. C-42
21. (1) Subject to subsection (2), a broadcaster has a copyright in the communication signals that it broadcasts, consisting of the sole right to do the following in relation to the communication signal or any substantial part thereof:
(a) to fix it,
(b) to reproduce any fixation of it that was made without the broadcaster’s consent,
(c) to authorize another broadcaster to retransmit it to the public simultaneously with its broadcast, and
(d) in the case of a television communication signal, to perform it in a place open to the public on payment of an entrance fee,
and to authorize any act described in paragraph (a), (b) or (d).
31. ...
(2) It is not an infringement of copyright to communicate to the public by telecommunication any literary, dramatic, musical or artistic work if
(a) the communication is a retransmission of a local or distant signal;
(b) the retransmission is lawful under the Broadcasting Act ;
(c) the signal is retransmitted simultaneously and in its entirety, except as otherwise required or permitted by or under the laws of Canada; and
(d) in the case of the retransmission of a distant signal, the retransmitter has paid any royalties, and complied with any terms and conditions, fixed under this Act.
IV. Judgments Below
A. Supreme Court of British Columbia, [1999] B.C.J. No. 3092 (QL)
12 In a judgment delivered orally in chambers, Brenner J. (now C.J.B.C.S.C.) noted that there is conflicting jurisprudence on the interpretation of s. 9(1)(c). It was the chambers judge’s opinion, however, that the provision is unambiguous, and that it poses no contradiction to the remainder of the Radiocommunication Act . He interpreted s. 9(1)(c) as applying only to the theft of signals from “lawful distributors” in Canada, and not applying to the “paid subscription by Canadians to signals from distributors outside Canada” (para. 20). He reasoned (at paras. 18-19):
The offence in that section that was created by the language Parliament chose to use was the offence of stealing encrypted signals from distributors in Canada. In my view, if Parliament had intended in that section to make it an offence in Canada to decode foreign encrypted transmissions originating outside Canada as contended by the [appellant], it would have said so. In s. 9(1)(c) Parliament could have used language prohibiting the unauthorized decoding of all or any subscription programming in Canada. This, it chose not to do.
The interpretation of s. 9(1)(c) asserted by the [appellant] makes no distinction between those who subscribe and pay for services from non-resident distributors and those who steal the signals of lawful distributors in Canada. That interpretation would create a theft offence applicable to persons in Canada who are nonetheless paying for the services they receive. If Parliament had intended s. 9(1)(c) to apply to such conduct, it would have said so in clear language. In my view the quasi criminal provisions in the Radiocommunication Act should not be interpreted in this manner in the absence of such clear parliamentary language.
13 Brenner J. therefore refused to grant the injunctive relief sought by the appellant. He directed that the trial of the matter proceed on an expedited basis.
B. Court of Appeal for British Columbia (2000), 79 B.C.L.R. (3d) 250, 2000 BCCA 493
14 The majority of the Court of Appeal, in a judgment written by Finch J.A. (now C.J.B.C.), identified two divergent strands of case law regarding the proper interpretation of s. 9(1)(c). The majority also noted that judgments representing each side had found the provision to be unambiguous; in its assessment, though, “[l]egislation which can reasonably be said to bear two unambiguous but contradictory, interpretations must, at the very least, be said to be ambiguous” (para. 35). For this reason, and the fact that s. 9(1)(c) bears penal consequences, the majority held that the “narrower interpretation adopted by the chambers judge ... must ... prevail” (para. 35). Conflicting authorities aside, however, the majority was prepared to reach the same result through application of the principles of statutory construction.
15 Section 9(1)(c) enjoins the decoding of encrypted signals without the authorization of the “lawful distributor of the signal or feed” (emphasis added). The majority interpreted the legislator’s choice of the definite article “the”, underlined in the above phrase, to mean that the prohibition applies only “to signals broadcast by lawful distributors who are licensed to authorize decoding of that signal” (para. 36). In other words, “[i]f there is no lawful distributor for an encrypted subscription program signal in Canada, there can be no one licensed to authorize its decoding” (para. 36). Consequently, according to the majority, there is no contravention of s. 9(1)(c) where a person decodes unregulated signals such as those broadcast by the U.S. DTH companies.
16 The majority characterized s. 9(1)(c) as being clearly directed at regulation of the recipient rather than the distributor, but stated that Parliament had not chosen language that would prohibit the decoding of encrypted signals regardless of origin. Rather, in the majority’s view, Parliament elected to regulate merely in respect of signals transmitted by parties who are authorized by Canadian law to do so. Dismissing the appellant’s argument regarding the words “or elsewhere” in the definition of “subscription programming signal”, the majority held that “the fact that a subscription program signal originating outside Canada was intended for reception outside Canada, does not avoid the requirement in s. 9(1)(c) that the decoding of such signals is only unlawful if it is done without the authorization of a lawful distributor” (para. 40).
17 Basing its reasons on these considerations, the majority held that it was unnecessary to address “the wider policy issues” or the issues arising from the Canadian Charter of Rights and Freedoms (para. 44). Finding no error in the chambers judge’s interpretation, the majority dismissed the appeal.
18 Dissenting, Huddart J.A. considered the text of s. 9(1)(c) in light of the definitions set out in s. 2, and concluded that Parliamentary intent was evident: the provision “simply render[s] unlawful the decoding in Canada of all encrypted programming signals ... regardless of their source or intended destination”, except where authorization is given by a person having the lawful right in Canada to transmit and authorize the decoding of the signals (para. 48). She stressed that the line of cases relied upon by the chambers judge “[a]t most ... provides support for a less inclusive interpretation of s. 9(1)(c) than its wording suggests on its face because it has penal consequences” (para. 54), and proceeded to set out a number of reasons for which these cases should not be followed.
19 For one, “the task of interpreting a statutory provision does not begin with its being typed as penal. The task of interpretation is a search for the intention of Parliament” (para. 55). As well, the more restrictive reading of s. 9(1)(c) “ignores the broader policy objective” of the governing regulatory scheme, this being “the maintenance of a distinctively Canadian broadcasting industry in a large country with a small population within the transmission footprint of arguably the most culturally assertive country in the world with a population ten times larger” (para. 49). Huddart J.A. also referred to the existence of copyright interests, and stated that “[i]t can reasonably be inferred that U.S. distributors have commercial or legal reasons apart from Canadian laws for not seeking a Canadian market. ... Yet only Canada can control the reception of foreign signals in Canada” (para. 50).
20 Huddart J.A. declined the respondents’ invitation to read s. 9(1)(c) in a manner that “respect[s] section 2( b ) of the Charter ” (para. 57), relying on Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, in this regard. She then concluded (at para. 58):
In summary, I am not persuaded the line of cases on which the chambers judge relied establish the provision is ambiguous or capable of contradictory meanings. I do not consider courts have found two entirely different unambiguous meanings for the provision. The words of section 9(1)(c), taken alone, provide a clear basis for the determination of Parliament’s intention. That meaning is consistent with the purpose of the entire regulatory scheme in the context of the international copyright agreements, with the purpose of the Act within that scheme, and with the scheme of the Act itself. Those cases interpreting the provision differently have done so with the purpose of narrowing its application to avoid penal consequences of what Parliament clearly intended to have penal consequences, as at least one of the judges taking that view explicitly acknowledged in his reasons. In my view it takes a convoluted reading of the provision to produce the result reached by the court in R. v. Love [(1997), 117 Man. R. (2d) 123 (Q.B.)], and the decisions that have followed it.
Huddart J.A. would have allowed the appeal and granted the declaration requested by the appellant.
V. Issues
21 This appeal raises three issues:
1. Does s. 9(1) (c) of the Radiocommunication Act create an absolute prohibition against decoding, followed by a limited exception, or does it allow all decoding, except for those signals for which there is a lawful distributor who has not granted its authorization?
2. Is s. 9(1) (c) of the Radiocommunication Act inconsistent with s. 2( b ) of the Canadian Charter of Rights and Freedoms ?
3. If the answer to the above question is “yes”, can the statutory provision be justified pursuant to s. 1 of the Charter ?
VI. Analysis
A. Introduction
22 It is no exaggeration to state that s. 9(1) (c) of the federal Radiocommunication Act has received inconsistent application in the courts of this country. On one hand, there is a series of cases interpreting the provision (or suggesting that it might be interpreted) so as to create an absolute prohibition, with a limited exception where authorization from a lawful Canadian distributor is received: R. v. Open Sky Inc., [1994] M.J. No. 734 (QL) (Prov. Ct.), at para. 36, aff’d (1995), 106 Man. R. (2d) 37 (Q.B.) (sub nom. R. v. O'Connor), at para. 10, leave to appeal refused on other grounds (1996), 110 Man. R. (2d) 153 (C.A.); R. v. King, [1996] N.B.J. No. 449 (QL) (Q.B.), at paras. 19-20, rev’d on other grounds (1997), 187 N.B.R. (2d) 185 (C.A.) (sub nom. King v. Canada (Attorney General)); R. v. Knibb (1997), 198 A.R. 161 (Prov. Ct.), aff’d [1998] A.J. No. 628 (QL) (Q.B.) (sub nom. R. v. Quality Electronics (Taber) Ltd.); ExpressVu Inc. v. NII Norsat International Inc., [1998] 1 F.C. 245 (T.D.), aff’d (1997), 222 N.R. 213 (F.C.A.); WIC Premium Television Ltd. v. General Instrument Corp. (2000), 272 A.R. 201, 2000 ABQB 628, at para. 72; Canada (Procureure générale) v. Pearlman, [2001] R.J.Q. 2026 (C.Q.), at p. 2034.
23 On the other hand, there are a number of conflicting cases that have adopted the more restrictive interpretation favoured by the majority of the Court of Appeal for British Columbia in the case at bar: R. v. Love (1997), 117 Man. R. (2d) 123 (Q.B.); R. v. Ereiser (1997), 156 Sask. R. 71 (Q.B.); R. v. LeBlanc, [1997] N.S.J. No. 476 (QL) (S.C.); Ryan v. 361779 Alberta Ltd. (1997), 208 A.R. 396 (Prov. Ct.), at para. 12; R. v. Thériault, [2000] R.J.Q. 2736 (C.Q.), aff’d Sup. Ct. Drummondville, No. 405-36-000044-003, June 13, 2001 (sub nom. R. v. D'Argy); R. v. Gregory Électronique Inc., [2000] Q.J. No. 4923 (QL) (C.Q.), aff’d [2001] Q.J. No. 4925 (QL) (Sup. Ct.); R. v. S.D.S. Satellite Inc., C.Q. Laval, No. 540-73-000055-980, October 31, 2000; R. v. Scullion, [2001] R.J.Q. 2018 (C.Q.); R. v. Branton (2001), 53 O.R. (3d) 737 (C.A.).
24 As can be seen, the schism is not explained simply by the adoption of different approaches in different jurisdictions. Although the highest courts in British Columbia and Ontario have now produced decisions that bind the lower courts in those provinces to the restrictive interpretation, and although the Federal Court of Appeal has similarly bound the Trial Division courts under it to the contrary interpretation, the trial courts in Alberta, Manitoba, and Quebec have produced irreconcilable decisions. Those provinces remain without an authoritative determination on the matter. This appeal, therefore, places this Court in a pos