Bell Canada v. Vincent Wesley (MTL FreeTv.com)

Bell Canada v. Vincent Wesley (MTL FreeTv.com)
Court (s) Database
Federal Court Decisions
Date
2018-01-24
Neutral citation
2018 FC 66
File numbers
T-759-16
Decision Content
Date: 20180124
Docket: T-759-16
Citation: 2018 FC 66
Ottawa, Ontario, January 24, 2018
PRESENT: The Honourable Mr. Justice Roy
BETWEEN:
BELL CANADA, BELL EXPRESSVU LIMITED PARTNERSHIP, BELL MEDIA INC., VIDÉOTRON S.E.N.C., GROUPE TVA INC., ROGERS COMMUNICATIONS CANADA INC., ROGERS MEDIA INC.
Applicants /
Plaintiffs
and
VINCENT WESLEY DBA MTLFREETV.COM
Defendant /
Respondent
and
1326030 ONTARIO INC. DBA ITVBOX.NET AND AL
Defendants /
Non-Respondents
JUDGMENT AND REASONS
[1] Mr. Prothonotary Morneau cited for contempt Vincent Wesley dba MTL FreeTv.com on February 23, 2017. He was to appear before this Court to hear the evidence and to be prepared to present any defence he deems appropriate. He appeared before the Court on June 27-28-29, 2017, and this constitutes the decision on the contempt of court with which he is charged.
[2] The order made pursuant to rule 467 of the Federal Courts Rules, SOR/98-106 [Rules], charges the defendant with the following:
a) disobeying paragraphs 2(a), 2(b) and 2(j) of the Interlocutory Injunction Order of the Honourable Madam Justice Tremblay-Lamer, dated June 1, 2016 (the “Interlocutory Injunction Order”), which constitutes contempt of Court under Rule 466(b) F.C.R., by accomplishing the following act:
(i) on January 13, 2017, offering for sale, configuring and selling a TX3 Pro “Pre-loaded Set-top box” (as defined at paragraph 2(a) of the Interlocutory Injunction Order);
which amounts to:
(i) communicating works for which the copyright is owned by the Plaintiffs to the public by telecommunication in violation of sections 2.4(1.1), 3(1)(f) and 27(1) of the Copyright Act and of paragraphs 2(a) and 2(j) of the Interlocutory Injunction Order; and
(ii) offering for sale, selling, and possessing a Pre-loaded Set-top box that is used or intended to be used to receive the Plaintiffs’ subscription programming signal after it has been decoded otherwise than under and in accordance with an authorization from the Plaintiffs, in violation of section 10(1)(b) of the Radiocommunication Act and of paragraph 2(b) and 2(j) of the Interlocutory Injunction Order.
[3] Essentially, the defendant stands charged with selling a device, on January 13, 2017, which is commonly referred to as a set-top box. The applicant is alleged to have contravened an interlocutory injunction issued by my colleague Madam Justice Tremblay-Lamer on June 1, 2016 (2016 FC 612) concerning the sale of these devices.
[4] Since the Prothonotary’s order refers specifically to paragraphs 2(a), 2(b) and 2(j) of the interlocutory injunction, they are hereby reproduced in their entirety:
THIS COURT ORDERS that:
2. The Defendants, their agents, employees, associates, and representatives, are enjoined and restrained from directly or indirectly:
a. Communicating works for which the copyright is owned by the Plaintiffs [the Plaintiffs’ Programs] to the public by telecommunication, including by configuring, advertising, offering for sale or selling set-top boxes that are adapted to provide users with unauthorized access to the Plaintiffs’ Programs [Pre-loaded Set-top Boxes];
b. Manufacturing, importing, distributing, leasing, offering for sale, selling, installing, modifying, operating or possessing Pre-loaded Set-top Boxes that are used or intended to be used to receive the Plaintiffs’ subscription programming signal after it has been decoded otherwise than under and in accordance with an authorization from the Plaintiffs;
j. As more particularly applicable to the Defendant Vincent Wesley dba MtlFreeTV.com, configuring, advertising, offering for sale or selling any Pre-loaded Set-top Box having the characteristics listed at paragraphs 2(a) to 2(e), including the MXQ, MXIII and Minix X8-H Plus Pre-loaded Set-top Boxes.
I. How did we get here
[5] There have already been a number of events leading to these contempt of court proceedings that can be summarized for our purposes as follows:
On May 12, 2016, after noting what they believed to be violations of their rights under the Copyright Act, RSC (1985), c C-42 and the Radiocommunication Act, RSC (1985), c R-2, the plaintiffs brought an action against the defendant and others. Originally, the action was brought against five defendants, but this number has already increased considerably through five amendments to the statement of claim;
Soon thereafter, the plaintiffs sought an injunction. An interlocutory injunction was issued by our colleague, Justice Tremblay-Lamer, on June 1, 2016;
The defendant sold to plaintiffs’ employees, posing as clients, devices in the form of set-top boxes after the interlocutory injunction prohibiting certain behaviour was issued. Two set-top boxes were sold on June 9 and June 17, 2016. This resulted in an order pursuant to rule 467 by Prothonotary Morneau on July 18, 2016. This order was varied by him on October 5, 2016, to add another charge resulting from a third sale by Mr. Wesley on July 29, 2016, this time just a few days after the original order citing the defendant in contempt of court;
Justice René Leblanc received the defendant’s guilty plea on November 21, 2016. The sentencing decision (2016 FC 1379) was rendered on December 16, 2016;
The plaintiffs now allege that on January 13, 2017, after pleading guilty to selling three set-top boxes, the defendant again sold a set-top box that, based on their allegations, is once again a device the applicant is prohibited from selling pursuant to the June 1, 2016, interlocutory injunction;
This resulted in another order pursuant to rule 467 on February 23, 2017. The order rendered by Prothonotary Morneau refers to the allegation that paragraphs 2(a), 2(b) and 2(j) of the interlocutory injunction had been violated. The charge—because that is what the order is required to describe with sufficient particularity—submits that, in doing so, the defendant violated the following provisions of the Copyright Act: 2.4(1.1), 3(1)(f) and 27. Paragraph 10(1)(b) of the Radiocommunication Act was also violated;
On March 20, 2017, the Federal Court of Appeal dismissed the appeal from the decision to issue an interlocutory injunction (2017 FCA 55). The Court of Appeal was of the view that the trial judge had not committed a palpable and overriding error in assessing the three conjunctive components of the applicable three-part test to issue an interlocutory injunction (RJR – MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311), and especially the irreparable harm that would be caused to the plaintiffs if the interlocutory injunction were not granted.
[6] At this stage, the injunction is unassailable. Its validity was challenged, without success. The alleged contempt is with respect to an order of the Court which it is claimed has been disobeyed. The matter was clear when this application was heard before the Court. In this case, the plaintiffs are calling for a conviction leading to a sentence that can only be described as particularly exemplary. If a conviction is reached, the sentence will have to be justified. They are asking for a warrant of committal for a period of incarceration of 180 days. The defendant would remain incarcerated until 50% of a fine of $150,000.00 will have been paid. Only then can the defendant be released on an undertaking to pay the difference within the next six months. If the defendant fails to comply with the undertaking, the plaintiffs may bring a motion before this Court to obtain another period of incarceration of 90 days. Furthermore, the plaintiffs want sequestration of the defendant’s inventory pursuant to rule 429 of the Rules.
II. The context
[7] I am indebted to Justice Tremblay-Lamer, who summarized the substratum of the case. The paragraphs in her judgment on the interlocutory injunction provide what is necessary to understand what will follow:
[3] The Plaintiffs Bell Media Inc., Rogers Media Inc., and Groupe TVA Inc. [collectively the Media Plaintiffs] are well-known Canadian broadcasters that own and operate a number of television stations throughout Canada broadcasting a variety of television programs, for which they own the Canadian rights.
[4] The Plaintiffs Bell Canada, Bell Expressvu Limited Partnership, Rogers Communications Canada Inc. and Vidéotron s.e.n.c. [collectively the Distribution Plaintiffs] are broadcast distribution undertakings, which receive broadcasts from a number of television stations and retransmit them to subscribers by various means of telecommunication.
[5] The Defendants are individuals and businesses which sell set-top boxes, electronic devices that can be connected to any standard television set in order to provide additional functionalities to that television, on which they have previously installed and configured a set of applications. This distinguishes the Defendants’ “pre-loaded” set-top boxes from those generally found in retail stores, which do not contain any pre-loaded applications, or contain only basic applications, such that the user must actively seek out and install the applications he or she wishes to use.
[6] Around April 2015, the Bell Plaintiffs became aware that pre-loaded set-top boxes were an emerging trend and began investigating them. Vidéotron also became aware of the trend sometime in 2015 and the Rogers Plaintiffs began their own investigation in 2016.
[7] Between April 2015 and April 2016, the Plaintiffs’ experts on fraud, piracy and technology investigated the trend and tested the Defendants’ products. They found that the devices sold by the Defendants could be used to access protected content produced and/or retransmitted by the Plaintiffs using online streaming websites, and that the Defendants advertised their products as a way to access free television content and avoid cable bills. They also noticed a significant increase in the prominence of pre-loaded set-top boxes, the product appearing at trade shows and sold at dedicated brick-and-mortar locations.
[8] The Plaintiffs specifically identified three types of pre-installed applications which they submit could be used to access copyrighted content:
A. KODI: with the proper add-on(s), the open-source media player KODI could be used to access online streaming websites;
B. Showbox: the media player software Showbox could be used to access online streaming websites and permanently download content such as television programming or motion pictures; and
C. Private IPTV Services: these are private Internet servers which re-transmit television broadcasts over the Internet, usually for a monthly fee.
III. The facts
A. The investigators
[8] Two witnesses testified concerning the acquisition of a set-top box and how the purchaser would use that set-top box in order to gain illegal access to the plaintiffs’ programs.
[9] The first witness is Jonathan Sansoucy. He has been working as an investigator for Videotron, one of the plaintiffs, since August 2016. Before that, he was already employed by Videotron. His supervisor, Gabriel Lewis, asked him to buy a set-top box from the business concern controlled by Mr. Wesley, MTLFreeTV.com. Mr. Wesley is doing business as MTLFreeTV.com. To do so, an appointment had to be made with Mr. Wesley in January 2017, contrary to what was the practice in 2016, through his company’s website. Exhibit P-3 is presented as evidence of this new site. An examination of exhibit P-3 shows that there is a requirement to contact MtlFreeTV and answer questions like, “How did you hear about us?”, “How can we help you?”, as well as a description of the request. The investigator followed the instructions and, apparently, he was able to make an appointment without any trouble as can be seen from exhibit P-11, which is the e-mail exchange with the defendant to make the appointment.
[10] Moreover, the investigator carried with him an audio recorder that he turned on when he left the parking lot to enter Mr. Wesley’s premises. The audio recording is filed under exhibit P-12. I have listened to it.
[11] Once Mr. Sansoucy reached the room where Mr. Wesley was doing business in a non-descript building, he described the premises as one room that was approximately 15 feet by 20 feet. Behind an L-shaped counter, there was a table with set-top boxes and a television. Another television was located in a space where customers could move around freely.
[12] The television that was easily accessible to customers had a page showing some content, such as “Mobdro”, “KODI” and “Showbox.” Once he was able to speak with Mr. Wesley, Mr. Sansoucy asked whether it was possible to access content such as Netflix and YouTube. He purchased a box presented as the “TX3 Pro”.
[13] Mr. Wesley advised that different boxes have different properties, such as, for example, their power and speed, but essentially they all have the same utility.
[14] The box purchased by Mr. Sansoucy was presented as not being pre-configured with applications. During his cross-examination, counsel for Mr. Wesley stressed that his client had clearly informed Mr. Sansoucy that the box purchased was not configured. Mr. Sansoucy testified that it was discussed whether the box could be configured, tutorials, such as the one found at exhibit P-9, were easy to use.
[15] Thus, the witness purchased the TX3 Pro box in question for $100, paid in cash. He was given a purple bag containing the TX3 Pro box and a wireless keyboard. Leaflets to help with the necessary configuration were also available. Exhibit P-8 consists of the contents of the bag and leaflets that were acquired during the January 13, 2017 visit. Exhibit P-9 is a sheet with a bar code that gives direct access to a YouTube page where the video tutorial is found (exhibit P-15).
[16] The role of this witness was to purchase the item and to give it to Mr. Lewis on January 13, 2017, the day of the purchase. He did not operate the set-top box purchased on January 13, 2017. He gave it, together with the contents of the purple bag, to Mr. Lewis.
[17] Mr. Lewis is manager of the fraud and investigations department at Videotron and Mr. Sansoucy’s supervisor. He has held this position since 2011. The purchased item was transferred directly to him and he tried to use it immediately as anyone else would upon receiving the device.
[18] He testified that he became interested in Mr. Wesley’s company in the spring 2016. Starting on April 22, 2016, it was possible to purchase products from Mr. Wesley. At that time, those who made the purchases could go to the premises without an appointment. He confirmed that the sketch of the premises found in exhibit P-14 matched the layout of the premises in the spring 2016.
[19] Mr. Lewis was, in effect, the only witness offered by the plaintiffs to establish the essential elements of the charge. He is the person who received the accused device and who operated it on January 13, 16 and 27, 2017. He documented his “expérience de l’utilisateur” (“user’s experience”) from start to finish.
[20] The witness purchased the first box, on April 22, 2016, which is the set-top box which was used in order to be granted the interlocutory injunction allegedly disobeyed in this case. Mr. Lewis testified on the user’s experience concerning devices that have become the subject of the first contempt proceedings. Under exhibit P-22, the Court received the homepage one would see after the devices were powered up. What is important for our purposes is that the user would be able to go directly from the homepage to offending websites. There was no prior operation required of the customer: access to the site was without any intermediate step or operation.
[21] The user’s experience was different when Mr. Lewis operated the device purchased on January 13, 2017 which is the subject of the current proceedings. Once Mr. Sansoucy brought the material purchased earlier on January 13 (exhibits P-26 – P-8) at around 3:00 p.m. on the same day, Mr. Lewis plugged the device in and proceeded to follow the steps appearing on the page itself.
[22] As became clear during the hearing, the major difference between the user’s experience on January 13, 2017, and the user’s experience using previous devices that were made the subject of the first contempt proceedings, is that the accused device requires that the customer perform the steps that appear on the screen.
[23] The witness documented his experience through a series of photographs taken by the witness (exhibits P-27, P-28 and P-29).
[24] Mr. Lewis testified that he “clicked” on the icon identified as MFTMC3, from the homepage, taking him to what appeared at exhibit P-29. As can be seen from the exhibit, there is the mention “click here to finalize MFTMC installation”; the witness “clicked”, which took him to “config MFTMC-9%”, which indicates that the configuration is ongoing. The third photograph documents that “MFTMC has now been successfully installed”. Once installed, it is possible to use MFTMC in order to gain access to content which is alleged to be protected by law. The last photograph in exhibit P-29 is the capture by the witness of what he found at 3:51 p.m. on January 13, 2017. That photograph was reached some 4 minutes after the witness clicked on the page indicating “click here to finalize MFTMC installation”.
[25] On January 27, 2017, the witness identified networks and programs which he claims were accessed through the device purchased on January 13, 2017. The results are presented at exhibit P-30.
[26] The witness remitted the accused device to counsel sometime after January 27. He claimed that the device was kept in a secure area (the “bunker”) during the time he was in control of the device.
[27] The cross-examination was surprisingly short. Counsel enquired as to why the witness did not make a video of his user’s experience, instead of creating a series of photographs, which were not all timestamped. Similarly, the witness was not able to provide counsel with the exact date on which the accused device was transferred to counsel for the plaintiffs, although this information could be retrieved if needed. The witness made the same comment about the precise moment when photographs were taken by him.
B. The defence
[28] The defendant chose to present a defence to the charge. Mr. Wesley testified first and an expert he had retained followed.
[29] The witness asserted that he did not sell a device that was “pre-loaded”. He testified that when he met Mr. Sansoucy, he told him that he would have to install the program himself. The only explanation offered by Mr. Wesley is that he had chosen to be extremely careful since he had been found guilty and he has not been “putting anything on the device”.
[30] On cross-examination, it was established that Mr. Wesley does not have any employees. Counsel questioned the witness about the devices he had purchased over time. The last purchase of “boxes” would have been in October/November 2016; annually, he would purchase around 400 to 600 “boxes”. Furthermore, he refreshed his website (MTLFreeTV.com) recently (early June 2017). Mr. Wesley was also questioned on the content of his new website as of June 22, 2017 (exhibit P-32).
[31] The questioning turned on prices for products offered by Mr. Wesley, compared to some products offered by a well-known provider of electronics equipment. The said products appeared on Mr. Wesley’s website for the first time in June 2017, although he would have had some before he advertised them in June. In the end, the evidence establishes that the products offered by Mr. Wesley are never cheaper than those offered by major distributors and, in fact, they are advertised by these distributors at prices significantly lower once rebates are factored in. Mr. Wesley explained that major distributors are able to acquire merchandise at a lower price.
[32] The witness was questioned about exhibit P-9, a form of advertisement on the front and back sides of the marketing flyer for MTLFreeTV remitted to Mr. Sansoucy by Mr. Wesley on January 13, 2017. The flyer bears the words “The box they don’t want you to own”. Mr. Wesley acknowledged that this refers to the kind of device we are concerned with and that the word “they” referred to the plaintiffs and others. That was followed with questions about exhibit P-17, an article published by CBC News in June 2017 entitled “Streaming apps for “free tv” android box disappear following U.S. lawsuit threat”. Mr. Wesley is featured therein. He acknowledged that the following passage was accurate:
Wesley claims there are still many dealers peddling boxes and that a court case can’t kill the industry. He says the same is true for the add-on community, even with TVAddons’ future in question.
"It’s definitely a blow to the community, but it’s not a fatal blow" Wesley said. He points out that there are numerous similar apps available that have no association with TVAddons.
TVAddons rebranded?
Wesley also believes that even if TVAddons disbands, it may rebrand itself and return under a different name.
"It’s a huge nuisance or annoyance to have to start from scratch, but it’s something that can be done," he says. "You’re not 'TVAddons' anymore; you’re 'Streaming Addons' now and you just kind of move on."
In re-examination, Mr. Wesley indicated that he was speaking in general when quoted by CBC News.
[33] Under cross-examination, Mr. Wesley continued to state that he sold “vanilla boxes”. His devices sold in January 2017 did not contain “add-ons”. He did not sell set-top boxes that have the applications. However, he did not offer any evidence of the boxes sold by him nor the boxes he supplied his expert, Mr. Laycraft, for the testing he would have conducted in British Columbia. Not having the burden of proof, he did not feel the need to bring a sample of the set-top boxes. If the box sold on January 13 had add-ons, they must have been installed after it was sold to Mr. Sansoucy.
C. The experts
[34] The defendant offered what was presented as expert evidence the testimony of William Laycraft, an employee of ReStoring Data, a business concern operating out of British Columbia. As explained by the witness, ReStoring Data, as its name implies, assists in searching for and retrieving lost data. The parties consented to their technical witnesses testifying as experts without the need for a voir dire.
[35] Thus, the plaintiffs did not challenge the witness with a view to disqualifying him as an expert: they focused instead on the probative value of his evidence.
[36] Mr. Laycraft presents himself as a “digital forensic analyst” who would assist the Court in two respects: the “forensic soundness” of the techniques employed by Mr. Lewis and an examination of a TX3 Pro set-top box which, the plaintiffs contend, was purchased by one of its agents on January 13, 2017.
[37] It is still unclear, in spite of repeated questions, what the use of “forensic” adds in the examination of this matter. The Canadian Oxford Dictionary defines “forensic” as being used in connection with courts of law, especially in relation to crime detection. We know of forensic medicine as being the application of medical knowledge to legal problems; similarly, forensic science implies the application of biomedical, or other scientific techniques, to the investigation of crime. In our case, it remained unclear what is the discipline, whether it be something akin to medicine, accounting or some scientific methodology, being applied by the witness towards crime detection or some legal issue. Indeed, one would think that it is for the Court to determine if evidence is admissible and what is its probative value.
[38] The witness does not have training in electronic engineering or any similar scientific training. At the time of his testimony, he had completed a Bachelor of Technology in Forensic Investigation (Computer Crime Option) at the British Columbia Institute of Technology. He had never testified before a judicial adjudicator (although there must, of course, be a first time) and his past experience does not suggest any particular expertise. In his curriculum vitae submitted in support of his testimony, he lists the following tasks as part of his duties as a “digital forensic analyst”, a position he holds since January 2017 only:
use various techniques to access and organise data of potential evidential value for clients;
analyse and report on information obtained for digital forensic cases;
author reports in a manner acceptable for the intended jurisdiction;
attend to court when requested for cross-examination;
contribute to data recovery cases.
[39] The limited scope of the testimony and the results presented, and the lack thereof, might help to explain why this witness’ expertise was not challenged. Rather, the plaintiffs were content for the evidence to be considered for its probative value instead of being excluded for lack of relevant specialized knowledge (R v Mohan, [1994] 2 SCR 9, White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23; [2015] 2 SCR 182).
[40] At any rate, it continues to be the province of the trier of fact to assess critically the evidence offered by “experts” (R v Bingley, 2017 SCC 12).
[41] Mr. Laycraft testified on the soundness of the “techniques” used by Mr. Lewis. He found that Mr. Lewis ought to have made a “verifiable” copy of the evidence before he performed any operation on the device acquired in January 2017. He described that as the “most basic best practice for handing [sic] of digital evidence” in his report. That consists of copying the internal storage at the time the device was purchased.
[42] It would appear that his “concern” stems from his contention that Mr. Lewis “powered on and made changes to files and configurations to a piece of evidence” (page 8 of 20, Mr. Laycraft’s report). The system clock would have been of particular interest for the witness. I note that the witness stated in his report that “I appreciate it could be technically challenging to create a copy of the TX3 Pro’s internal storage for analysis” (page 8 of 20, Mr. Laycraft’s report). However, it is his opinion that the investigator ought to be able to find out how that could be done. It remained very much unclear what difference that would have made to the user’s experience once the device was powered on for the first time.
[43] The second set of observations concerned the experimentation that was to be conducted by the witness on the accused device on May 15, 2017. It proved to be unsuccessful.
[44] It seems that Mr. Laycraft was attempting to copy the internal storage from the purchased device, the TX3 Pro Android OS set-top box. Prior to May 15, 2017, he developed a protocol, using two devices, supplied by the accused but not produced at trial. The only information provided was that one was pre-loaded, whatever that means, and the other one was not, such that the expert compared the two, said the defendant, in an attempt to by-pass the operating system in order to copy the internal storage. Mr. Laycraft intended to use the Team Win Recovery Project version 3.0.2-0 (TWRP). Very little information was made available by the witness as to what that tool is. The best that could be found is in the report, at page 5 of 20:
From TWRP’s publisher, Team Win LLC: [edited for clarity and conciseness]
TWRP is an open source community project. Team Win was originally formed to work on porting WiMAX to CM7 for the HTC EVO 4G. After our work on the EVO 4G we wanted to work on a project that would work on more devices than just the EVO 4G and we settled on working on a recovery. Today TWRP is the leading custom recovery for Android phones.
No other explanation about the tool was offered either in the report or at trial. It was, however, noted that the TWRP seems to be used, presumably with a measure of success, for Android phones. The device under review is not an Android phone.
[45] The report and the testimony are to the same effect. The attempt made on May 15, 2017, to retrieve information from the purchased device proved to be a failure.
[46] The witness claimed he used his technique on the two devices supplied by the defendant. However, no detail about that initial experiment was offered. Thus, the witness writes at page 13 of 20 of his report that using the two sample units supplied by Mr. Wesley, “I assume that the device in evidence is of the same make/model/manufacturing lot and can be expected to function in the same manner” [my emphasis]. The witness recognized that it is an important assumption that he nevertheless considers to be highly likely to be correct “based on my observations, the plaintiff’s affidavits [and] Mr. Wesley’s assertions”. Once again, there is no articulation as to why those could support the view that the two sample devices can be properly used because they are either identical or very similar. Furthermore, the witness did not provide an explanation of what was achieved with the two samples about which the TWRP would have been applied. In effect, the evidence is simply to state that the technique used was successful with two units provided by Mr. Wesley. But whatever success there was, the witness was unable to replicate it with the device purchased on January 13, 2017.
[47] Moreover, as the witness was attempting to perform his testing on the device, on May 15 last, he conceded in his report that he encountered “technical difficulties”. Ultimately, it seems that the witness attempted to obtain a verifiable precise copy of the device’s internal data storage. The witness’s aim was to search for when and how any infringing content would have been included in the device in the hope of establishing what the plaintiffs, or someone unknown, would have changed on the device while they were in possession of it. Mr. Laycraft was never able to conduct his operation with any success, speculating later that the micro SD card slot was broken.
[48] As a result of the failure of the witness, the only conclusion that can be reached by the Court is that there is no evidence before it. The experiment led by the expert failed and therefore there is nothing before the Court. The failure does not establish that there was infringing content on the device; it surely does not establish either that there was not such content. At the end of the day, the evidence of Mr. Laycraft was of no assistance to the defendant or the Court.
[49] In the circumstances, the evidence of Tom Warren, the expert retained by the plaintiffs to challenge the respondents’ expert became largely surplusage. He is a former policeman with experience in evidence handling and investigation who founded twenty years ago Net-Patrol International, Inc. (NPI) which provides information and technology services in computer and internet security. Mr. Warren is currently an I.T. Consultant - Forensic specialist at NPI. He has also held positions as professor of information technology at two colleges in Southern Ontario. He has testified as an expert before; his expertise was not challenged before this Court.
[50] In a nutshell, the expert was retained to attend at Mr. Laycraft’s performance of his protocol on May 15, 2017. Mr. Warren asserts that there is no recognized procedure to create, process and analyse an image of the type of device (TX3 Pro set-top box operating on the android operating system). The software Mr. Laycraft tried to use is not technically mature; it is “not recognized as being reliable in the digital forensics industry” (para 22 d)(iii), Mr. Warren’s report). In fact, he pointed out that there does not exist a forensic process to create and analyse an image of the device such as the one in this case. This comment is not dissimilar to the one made by Mr. Laycraft that “it could be technically challenging to create a copy of the TX3 Pro’s internal storage for analysis” (page 8 of 20, Mr. Laycraft’s report). Mr. Warren explained that TWRP is an “open source” software still in development by a community of developers without a formal structure. It has not been tested for performance and reliability against the performance and reliability of other tools.
[51] As for the experimentation that took place on May 15, 2017, on the device purchased on January 13, 2017, Mr. Warren was very critical, from the lack of equipment of Mr. Laycraft (an expert brings his own equipment and does not rely on that of others) to the repeated failure of the different attempts on a control box. Indeed, when, after 4 unsuccessful attempts, Mr. Laycraft was finally able to load a mirror image of the control box on a USB device, it remained impossible to confirm whether the control box contained the same application as the purchased device, whether the parameters were the same and whether it would have even been possible to process the image in order to analyse and report on its content.
[52] I note that Mr. Warren opined about the handling of the device by Mr. Lewis. Not too surprisingly, he found it to fall within a proper evidence handling protocol.
[53] Under cross-examination, which was very limited, it was established that the expert never testified concerning a set-top box. However, the witness expressed the view that it was very unclear whether timestamps could have been used because the time appearing on the control box was itself unreliable when the fifth try on the control box produced some times. The witness confirmed that there are many reasons why the experimentation of Mr. Laycraft failed. Finally, he agreed that having a video of the user’s experience would be marginally superior to having photographs. He agreed that it would be preferable to have the time when that photograph was taken.
IV. Arguments and analysis
A. Arguments
[54] As we were reminded again recently in R v Bradshaw, 2017 SCC 35, a trial is a truth-seeking process that relies on the evidence presented:
[19] The truth-seeking process of a trial is predicated on the presentation of evidence in court. Litigants make their case by presenting real evidence and viva voce testimony to the trier of fact. In court, witnesses give testimony under oath or solemn affirmation. The trier of fact directly observes the real evidence and hears the testimony, so there is no concern that the evidence was recorded inaccurately. This process gives the trier of fact robust tools for testing the truthfulness of evidence and assessing its value. To determine whether a witness is telling the truth, the trier of fact can observe the witness’s demeanor and assess whether the testimony withstands testing through cross-examination (R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 35).
Only the evidence presented at trial can be assessed to reach a verdict.
[55] Here, the Court must be satisfied beyond a reasonable doubt. Rule 469 could not by any clearer:
Burden of proof
Fardeau de preuve
469 A finding of contempt shall be based on proof beyond a reasonable doubt.
469 La déclaration de culpabilité dans le cas d’outrage au tribunal est fondée sur une preuve hors de tout doute raisonnable.
[56] The defendant chose to argue the plaintiffs did not discharge their burden: he argued that the proof made was not beyond a reasonable doubt. Rule 470 mandates that “evidence on a motion for contempt order … shall be oral”; although “(a) person alleged to be in contempt may not be compelled to testify” (rule 470(2)), the defendant chose to testify and present a denegation that he offered for sale a device that was “pre-loaded”. These are not affidavits submitted at an ex parte hearing: the evidence was tested to the extent the parties chose to test the evidence through cross-examination of the witnesses who appeared.
[57] This case boils down to witnesses appearing for the plaintiffs who testify that they purchased a set-top box from the defendant. When they tried to use the box, they found that it differed from boxes purchased in the past, where the user was able to turn on the device and immediately gain access to icons referring directly to content. This time, the evidence of Mr. Lewis is rather that there were steps to be taken to gain access to what is alleged to be illegal content. The steps are however minimal. By clicking on the icon MFTMC3, which appears on the homepage (exhibit P-27) when the user turns the device on, the witness is immediately taken to a page where he is told to “click here to finalize MFTMC installation” (exhibit P-29). On that same page appears the logo used by Mr. Wesley which bears the title “MTL FREETV” together with references to three websites. Once the installation is completed, the user is advised that MFTMC has been successfully installed and that the website www.mtlfreetv.com can be visited for future support. From the moment when the installation began to when the witness was able to have access to content claimed to be illegal, it would have taken no more than a few minutes according to the witness. The witness testified that a closer examination of what can be accessed by the user showed many stations and programs of the plaintiffs (exhibit P-30). Those, the plaintiffs argue, constitute the facts needed to establish beyond a reasonable doubt the contempt of court, as charged. I note that the “expérience de l’utilisateur” was not challenged on cross-examination.
[58] The plaintiffs add to their evidence a number of circumstantial elements to support their contention:
a) the use of a non-descript building where Mr. Wesley is operating his business could suggest that he wishes to operate under the radar;
b) before the conviction for contempt of court, there was no need to make an appointment in order to gain access to the business premises;
c) purchasing a “plain-vanilla” device from MTLFREETV is not a bargain, compared to other plain vanilla devices sold by other well-known suppliers of electronics products;
d) in a report of CBC News not challenged by Mr. Wesley, he claims that the future of the “add-ons” will not be killed by a court case. It is reported that “Wesley also believes that even if TVAddons disbands, it may rebrand itself and return under a different name.” It may be suggested that it is in essence what Mr. Wesley did here, pretending that requiring that the customer complete the installation of add-ons takes the matter outside of the four corners of the injunction.
[59] On the other hand, the defendant claims that he has not pre-loaded the box sold to the investigators. The defendant made it clear throughout that he did not accuse the plaintiffs or their agents of installing that which was not in the set-top box when he sold Mr. Sansoucy the device on January 13, 2017. However, he did not challenge on cross-examination of the two witnesses presented by the plaintiffs the claim of possession of the device or impugn their credibility.
[60] Counsel for the defendant concedes, somewhat surprisingly, that a mere denial will not automatically suffice to raise a reasonable doubt. Indeed, the defendant did not explain on the stand what he met by pre-loading a set-top box. He rather focused on the manner in which the investigation was conducted. In his view, there are factors that add weight to the denial.
[61] Without pointing the finger at the plaintiffs, accusing them of installing the MFTMC on the device or tampering with the device, the defendant seeks to raise a reasonable doubt by discounting some of the evidence brought forth by the plaintiffs and suggesting that the evidence was not adequate to reach the threshold of beyond a reasonable doubt::
a) the fact that the defendant operates out of a nondescript building identified as “U-Haul” (exhibit P-33) as the other tenants appear to be offices (Déneigement X, Déneigement Y, Impôt Z, Math Education Center, etc. ; See exhibit P-13) is not decisive says the defendant;
b) the fact that he