DAB
09-06-2009, 06:29 AM
Programming Shutdown by Supreme Court!
Sad News for people here in canada...
C/P:
Dish Network Programming Shutdown by Supreme Court
August 14th, 2009, Vancouver, BC
Today, the Supreme Court of BC granted an injunction to Dish Network to prevent us from helping any Canadian receive any programming being broadcast by Dish Network.
In addition, Can-Am Satellites has been ordered to turn over to Dish Network all of our customers’ names and receiver information so that Dish Network can terminate their programming. Dish Network may also pursue legal action against these customers, who, it was discovered during the hearing, are liable for a fine of up to $1000 for each day for violation of the Radiocommunications Act. This means that if a customer was to be proven by Dish Network that they viewed their programming for, say seven years, then the fine could be as much as 7 x 365 x $1000 = $2,555,000. While I hope that this kind of fine will never be imposed, it demonstrates the draconian and repressive force of the Radiocommunications Act to deny ordinary Canadians from watching television signals of their choice.
The good news is that Justice Walker indicated that he would reverse his decision if Can-Am Satellites or any of its affected customers made the proper applications and could demonstrate to him a competent, well thought-out argument for a defense with some likelihood of success based on Section 2(b) of the Charter of Rights and Freedoms was presented to the Court.
With no financial resources to obtain legal counsel for this hearing, I was left to represent myself (and, in effect, all customers) in Court. This was a big mistake since I have no legal knowledge; all of the issues that I addressed with the Court, while truthful and accurate, could not be admitted or considered because it was not presented as evidence. It is imperative that if you want the Court to consider reversing the injunction, then professional legal counsel is required.
When we originally were served by Directv with an injunction, I sought legal advice. I was told that the cost to defend the actions all the way to the Supreme Court of Canada would cost a minimum of $200,000 to $300,000.
I have about 500 Dish Network customers. If half of you come forward with $1000 for a legal defense in the next week or so, then we would be able to present a good argument (your right to freedom!) to the Court, which would go a long way to getting your programming back legally without any crazy fines.
Yours truly,
Richard Rex
Owner, Can-Am Satellites
Announcement
by: Richard Rex, Owner of Can-Am Satellites
April 9th, 2009
Due to on-going legal difficulties brought on by Bell Expressvu, Directv, and now Dish Network, we are unable to operate in the same capacity that we once did. In an effort to expedite this matter to the Supreme Court of Canada, I have agreed to not accommodate Canadians in obtaining grey-market activations at this time
In return, I have asked legal counsel for the three satellite providers to arrange for a near-immediate date with a judge at the British Columbia Supreme Court. Here I will ask the judge to decide the best path, for all concerned, to enquire of the Supreme Court of Canada the validity of the Radiocommunications Act with respect to the Canadian Charter of Rights and Freedoms. To date, counsel for Bell Expressvu, Directv and Dish Network have not responded to my request. Should they deny my request, I will resume activations of grey-market programming until such time a Court says otherwise.
We (my employees and I) have no professional legal representation as we can not financially afford it. We trust that the due process of the law will allow us to simply offer the Courts our argument that the current law (Radiocommunications Act) prevents Canadians from legally obtaining satellite programming of their choice. This amounts to censorship, a violation of section 2(b) of the Canadian Charter of Rights and Freedoms: "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication."
When Parliament does not recognize Canadians' rights, I get very worried for our "free and democratic society."
Ideally the Conservative Government of Canada would take responsibility and simply re-write bad legislation. However the government does nothing. My letters to the government go unanswered. Instead, they force a single Canadian citizen to go through all of the legal hoops to defend all of Canadians' rights. Hopefully the Supreme Court of Canada will tell the government that the RCA is not Constitutional and tell the government to re-write the law so that Canadians' rights are not violated.
Unfortunately our elected officials have shirked their duty and now we must take faith that the Canadian legal system will be the protector of our rights as Canadians. It is my responsibility to act as Defender in this legal process. Bell Expressvu, having already raided my business in 1999 and thereafter fighting all the way to the Supreme Court of Canada to protect their business interests ahead of the interests of Canadians, is Plaintiff.
Let the Supreme Court decide once and for all where the line in the sand is going to be drawn with respect to the manner in which Canadians can express themselves, educate themselves, and define themselves.
I will try to keep you informed of the proceedings....
Date: 19991210
Docket: A993004
Registry: Vancouver
IN THE SUPREME COURT OF BRITISH COLUMBIA
Oral Reasons for Judgment
Mr. Justice Brenner
Pronounced in Chambers
December 10, 1999
BETWEEN: BELL EXPRESSVU LIMITED PARTNERSHIP
PLAINTIFF
AND: RICHARD REX c.o.b. as "CAN-AM SATELLITES", RICHARD REX 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 SATELLITE 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 KIBLEE a.k.a. RODKIBLER, 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", "CANAM SATELLITES", "CAN AM SATELLITE", "CAN AM SAT", "CAN-AM SATELLITE DIGITAL MEDIA GROUP", "CAN-AM DIGITAL MEDIA GROUP", "DIGITAL MEDIA GROUP", OR ONE OR MORE OF THEM
DEFENDANTS Counsel for the Plaintiff: K. McKenzie, D. Grunder
Counsel for the Defendant, R. Rex: R. Peck, Q.C.
Counsel for the Defendant, A. Halley: D. Martin
Counsel for the Defendant, M. Lee: R. Willinofsky
Counsel for all Defendants, except M. Rex: K. Filkow
(1) THE COURT: The plaintiff seeks a permanent injunction or, in the alternative, an interim injunction in this matter. The plaintiff is licensed by the C.R.T.C. to broadcast direct to home (DTH) television programming via satellite to Canadian subsribers.
(2) Canadian residents who subscribe to ExpressVu and who own an ExpressVu DTH satellite television decoding system are authorized to decode the encrypted subscription programming signals transmitted by the plaintiff and view the programming for which they have subscribed. There is one other licensed satellite DTH broadcaster in Canada called Star Choice.
(3) Similar services operate in the United States under the names Direct T.V. and Echo Star. They are licensed by the F.C.C. and are authorized to have their encrypted subscription programming signals viewed in the United States. Counsel advise that their signals are not authorized under the F.C.C. rules to be broadcast for reception and decoding outside the U.S.
(4) The plaintiff alleges that the defendants' business activities breach ss. 9.1(c) and 10.1(b) of the Radio Communication Act and interfere with the plaintiff's business.
(5) The defendants are in the business of selling U.S. DTH decoder systems to Canadians and supplying them with a U.S. address and other services which allow them to subscribe for and pay for programming from U.S. DTH broadcasters. This is what, on this application, was termed "grey market activities". The plaintiff also says that the defendants have engaged in what is termed "black market activities", that is, the selling of modified DTH decoder cards that permit the decoding of U.S. DTH broadcasters' signals without any payment to the broadcasters.
(6) The defendants have consented to a cease and desist order in respect of these latter activities. In view of that, the issue before me is whether an injunction should issue with respect to the grey market activities carried on by the defendants, either on a permanent or interim basis.
(7) The issue in the underlying action is the interpretation of s. 9.1(c) of the Radio Communication Act; on this application the issue is whether the plaintiff has met the test for an injunction. S. 9.1(c) provides as follow: No person shall (c) decode an encrypted subscription programming signal or encrypted network feed, otherwise than under and in accordance with authorization from the lawful distributor of the signal or feed.
(8) "Lawful distributor" is defined by the Radio Communication Act as a person who has the lawful right in Canada to transmit the signal and authorize its decoding. "Subscription programming signal" means radio communication that is intended for a reception, either directly or indirectly, by the public in Canada or elsewhere on payment of a subscription fee or other charge.
(9) It is an offence under s. 9.1(d) of the Radio Communication Act to operate a radio apparatus so as to receive an encrypted subscription programming signal or encrypted network feed that has been decoded in contravention of 9.1(c).
(10) Section 18.1 creates a civil cause of action in favour of any person who holds an interest in the content of a subscription programming signal or network feed by virtue of copyright ownership or a license granted by a copyright owner. If loss or damages are suffered as a result of conduct that is contrary to s. 9.1(c) or (d) or s. 10.1(b), provable damages may be recovered. Such person also has the right to obtain other remedies, including an injunction, accounting, or other remedy that the court considers appropriate.
(11) The plaintiff contends that s. 9.1(c) makes it an offence to decode any encrypted signals or feeds without the authorization of a lawful distributor, which by definition means a person who has the lawful right in Canada to transmit the signal or fee and authorize its decoding. The defendants, on the other hand, contend that s. 9.1(c) simply makes it unlawful to decode the encrypted transmissions of a lawful distributor without paying for it.
(12) The courts in three Canadian provinces, in cases involving criminal prosecutions, have held that s. 9.1(c) does not encompass the decoding of foreign signals for which there is no lawful distributor in Canada (see R. v. Love (1997), M.J. (No. 109); R. v. Ereiser (1997), S.J. (No. 276); R. v. LeBlanc (1997), M.S.J. (No. 476)).
(13) However the plaintiff relies on other decisions holding to me contrary in civil actions with facts very similar to the facts in the case at bar. The latest of these decisions is a decision of Mr. Justice Nordheimer of the Ontario Supreme Court of Justice, issued October 5, 1999, unreported, Court File 99CV174995.
(14) Mr. Justice Nordheimer heard an application by the plaintiff to restrain a similar activity in Ontario. At paragraph 15, Nordheimer J. turned to the question as to whether an interlocutory injunction should be granted. After setting out the test and referring to s. 9.1(c) and (d) of the Radio Communication Act, at paragraph 18, he stated: Further, the type of activities engaged in by the defendants here have already been found in other proceedings to offend the aforementioned provisions of the Radio Communication Act. He then referred to a 1997 decision of Mr. Justice Gibson in the Federal Court, ExpressVu Inc. v. NII Norsat International Inc. (1997), F.C.J. (No. 10004), which was affirmed on appeal.
(15) In Norsat Mr. Justice Gibson had before him a similar civil case and, when one reviews his decision, it is apparent that he, in turn, adopted the earlier analysis of a Provincial Court judge in Alberta, Jude LeGrandeur, with respect to the proper interpretation of s. 9.1(c). At page 16 of his reasons, Mr. Justice Gibson sates: In my analysis of the application of the above-quoted expansion of a portion of s-s. 9.1 on the facts before me, I adopt much of the analysis of His Honour Judge J. LeGrandeur in the Quality Electronics case cited earlier. He then went on to quote extensively from the analysis of Judge LeGrandeur.
(16) In Quality Electronics LeGrandeur J. reviewed the legislation and concluded that, given the statute as a whole and he perceived to be the legislative purpose of the Radio Communication Act, that s. 9.1(c) was intended to provide an absolute prohibition against the decoding of encrypted subscription program signals unless they emanate from a lawful distributor in Canada and that distributor authorizes their decoding. This decision was upheld on appeal by the Court of Queen's Bench.
(17) The issue before me is whether the plaintiff has made out a case for an injunction. In deciding this I must consider whether s. 9.1(c) provides for the absolute prohibition as described by LeGrandeur J. The powers of a court in matters of this nature were succinctly summarized by Lord Reid in Westminster Bank v. Zane (1966), A.C. 182, as follows: No principle of interpretation of statutes, however, is more firmly settled than the rule that the court must deduce the intention of Parliament from the words used in the Act. If those words are in any way ambiguous, if they are reasonably capable of more than one meaning, or if the provision in question is contradicted by, or is incompatible with any other provision in the Act, then the court may depart from the natural meaning of the words in question, but beyond that, we cannot go.
(18) Based on the evidence before me and counsel's submissions on this interlocutory application I conclude that the words in s. 9.1(c) are neither ambiguous nor can they be said to contradict other provisions in the Act. 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 plaintiff, 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.
(19) The interpretation of s. 9.1(c) asserted by the plaintiff 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 Radio Communication Act should not be interpreted in this manner in the absence of such clear parliamentary language.
(20) In its submissions, the defendants also refer to extra legislative sources, including an extract from Hansard, where the Honourable Marcel Masse at the time of the Third Reading of the House of Commons, Bill C40, stated: The bill also recognizes that newer technologies allow programming services to encode their signals for distribution to paying customers only. For this reason, it provides a right of civil action against theft of encoded signals, a provision which has found support from the cable vision and satellite direct home television industries (Hansard, December 4, 1990, at page 16224). This also supports the contention that s. 9.1(c) was intended to apply only to the theft of signals from lawful distributors in Canada and not the paid subscription by Canadians to signals from distributors outside Canada.
(21) Accordingly, I am not prepared to grant to the plaintiff the injunctive relief sought. Rather, I would direct that the trial of this matter proceed on an expedited basis.
(22) Are there any submissions on costs?
(SUBMISSIONS BY COUNSEL)
(23) THE COURT: Costs in the cause would be your submission. Thank you.
(24) COUNSEL: I'm sorry, I don't know that I can agree with that on behalf of Michelle Lee because certainly, although my friend spoke for his clients in regard to their business, he did not speak for Michelle Lee in regard to any order to that effect and, as I said, she was simply a bookkeeper and wants to go about her work.
(25) THE COURT: Yes.
(SUBMISSIONS BY COUNSEL)
(26) THE COURT: I am not quite sure where Ms. Lee is left in this. That is my dilemma. (SUBMISSIONS BY COUNSEL)
(27) THE COURT: In the circumstances, costs will be in the cause. That still leaves open Ms. Lee's position.
(SUBMISSIONS BY COUNSEL)
(28) THE COURT: Yes, I am leaving the costs in the cause. Presumably you will continue with this action and seek an early trial. She will be one of the defendants and you may ultimately succeed.
(SUBMISSIONS BY COUNSEL)
(29) THE COURT: I think the best way to proceed is this way, Mr. McKenzie. It certainly has been represented to the court that she is no longer an employee, that she is out looking for other work, and I am prepared to accept counsel's representation to that effect. In the event that there is any evidence that she is either seeking to rejoin or become part of the defendants' organization, or is engaging in any other activity which falls under the rubric of black market activities, you will be at liberty to re-apply. I will remain seized and I expect I will not hesitate to issue the type of order that is being consented to by the defendants.
(30) So, in other words, if you learn that she is either engaging in a new business that is doing these black market activities or is going back to work for the defendants, then I am inviting you to apply for an injunction in the same terms.
(SUBMISSIONS BY COUNSEL)
(31) THE COURT: If she goes back to work for Can-Am?
(32) COUNSEL: Yes.
(33) THE COURT: I just said I would invite an application to have her enjoined on the same terms as Can-Am. In other words, if she goes back to work for Can-Am or ÐÐ
(34) COUNSEL: So, it would be favourably received.
(35) THE COURT: Yes, I expect that would be so. I shall remain seized since I am familiar with the case.
SUBMISSIONS BY COUNSEL)
(36) THE COURT: Well, I think, that is why I tried to say what the court's reaction would be in the event that you were to come back.
(SUBMISSIONS BY COUNSEL)
(37) THE COURT: Yes, I am seized of this one issue. The reason I am not seizing myself more broadly is that my schedule is rather full right now. If I were to do that, you might be delayed in getting before me.
(SUBMISSIONS BY COUNSEL)
(38) THE COURT: No, I have seized myself only with the injunction matter which I see as arising from this motion.
SIGNED BY The Honourable Mr. Justice Brenner
:fight
Sad News for people here in canada...
C/P:
Dish Network Programming Shutdown by Supreme Court
August 14th, 2009, Vancouver, BC
Today, the Supreme Court of BC granted an injunction to Dish Network to prevent us from helping any Canadian receive any programming being broadcast by Dish Network.
In addition, Can-Am Satellites has been ordered to turn over to Dish Network all of our customers’ names and receiver information so that Dish Network can terminate their programming. Dish Network may also pursue legal action against these customers, who, it was discovered during the hearing, are liable for a fine of up to $1000 for each day for violation of the Radiocommunications Act. This means that if a customer was to be proven by Dish Network that they viewed their programming for, say seven years, then the fine could be as much as 7 x 365 x $1000 = $2,555,000. While I hope that this kind of fine will never be imposed, it demonstrates the draconian and repressive force of the Radiocommunications Act to deny ordinary Canadians from watching television signals of their choice.
The good news is that Justice Walker indicated that he would reverse his decision if Can-Am Satellites or any of its affected customers made the proper applications and could demonstrate to him a competent, well thought-out argument for a defense with some likelihood of success based on Section 2(b) of the Charter of Rights and Freedoms was presented to the Court.
With no financial resources to obtain legal counsel for this hearing, I was left to represent myself (and, in effect, all customers) in Court. This was a big mistake since I have no legal knowledge; all of the issues that I addressed with the Court, while truthful and accurate, could not be admitted or considered because it was not presented as evidence. It is imperative that if you want the Court to consider reversing the injunction, then professional legal counsel is required.
When we originally were served by Directv with an injunction, I sought legal advice. I was told that the cost to defend the actions all the way to the Supreme Court of Canada would cost a minimum of $200,000 to $300,000.
I have about 500 Dish Network customers. If half of you come forward with $1000 for a legal defense in the next week or so, then we would be able to present a good argument (your right to freedom!) to the Court, which would go a long way to getting your programming back legally without any crazy fines.
Yours truly,
Richard Rex
Owner, Can-Am Satellites
Announcement
by: Richard Rex, Owner of Can-Am Satellites
April 9th, 2009
Due to on-going legal difficulties brought on by Bell Expressvu, Directv, and now Dish Network, we are unable to operate in the same capacity that we once did. In an effort to expedite this matter to the Supreme Court of Canada, I have agreed to not accommodate Canadians in obtaining grey-market activations at this time
In return, I have asked legal counsel for the three satellite providers to arrange for a near-immediate date with a judge at the British Columbia Supreme Court. Here I will ask the judge to decide the best path, for all concerned, to enquire of the Supreme Court of Canada the validity of the Radiocommunications Act with respect to the Canadian Charter of Rights and Freedoms. To date, counsel for Bell Expressvu, Directv and Dish Network have not responded to my request. Should they deny my request, I will resume activations of grey-market programming until such time a Court says otherwise.
We (my employees and I) have no professional legal representation as we can not financially afford it. We trust that the due process of the law will allow us to simply offer the Courts our argument that the current law (Radiocommunications Act) prevents Canadians from legally obtaining satellite programming of their choice. This amounts to censorship, a violation of section 2(b) of the Canadian Charter of Rights and Freedoms: "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication."
When Parliament does not recognize Canadians' rights, I get very worried for our "free and democratic society."
Ideally the Conservative Government of Canada would take responsibility and simply re-write bad legislation. However the government does nothing. My letters to the government go unanswered. Instead, they force a single Canadian citizen to go through all of the legal hoops to defend all of Canadians' rights. Hopefully the Supreme Court of Canada will tell the government that the RCA is not Constitutional and tell the government to re-write the law so that Canadians' rights are not violated.
Unfortunately our elected officials have shirked their duty and now we must take faith that the Canadian legal system will be the protector of our rights as Canadians. It is my responsibility to act as Defender in this legal process. Bell Expressvu, having already raided my business in 1999 and thereafter fighting all the way to the Supreme Court of Canada to protect their business interests ahead of the interests of Canadians, is Plaintiff.
Let the Supreme Court decide once and for all where the line in the sand is going to be drawn with respect to the manner in which Canadians can express themselves, educate themselves, and define themselves.
I will try to keep you informed of the proceedings....
Date: 19991210
Docket: A993004
Registry: Vancouver
IN THE SUPREME COURT OF BRITISH COLUMBIA
Oral Reasons for Judgment
Mr. Justice Brenner
Pronounced in Chambers
December 10, 1999
BETWEEN: BELL EXPRESSVU LIMITED PARTNERSHIP
PLAINTIFF
AND: RICHARD REX c.o.b. as "CAN-AM SATELLITES", RICHARD REX 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 SATELLITE 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 KIBLEE a.k.a. RODKIBLER, 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", "CANAM SATELLITES", "CAN AM SATELLITE", "CAN AM SAT", "CAN-AM SATELLITE DIGITAL MEDIA GROUP", "CAN-AM DIGITAL MEDIA GROUP", "DIGITAL MEDIA GROUP", OR ONE OR MORE OF THEM
DEFENDANTS Counsel for the Plaintiff: K. McKenzie, D. Grunder
Counsel for the Defendant, R. Rex: R. Peck, Q.C.
Counsel for the Defendant, A. Halley: D. Martin
Counsel for the Defendant, M. Lee: R. Willinofsky
Counsel for all Defendants, except M. Rex: K. Filkow
(1) THE COURT: The plaintiff seeks a permanent injunction or, in the alternative, an interim injunction in this matter. The plaintiff is licensed by the C.R.T.C. to broadcast direct to home (DTH) television programming via satellite to Canadian subsribers.
(2) Canadian residents who subscribe to ExpressVu and who own an ExpressVu DTH satellite television decoding system are authorized to decode the encrypted subscription programming signals transmitted by the plaintiff and view the programming for which they have subscribed. There is one other licensed satellite DTH broadcaster in Canada called Star Choice.
(3) Similar services operate in the United States under the names Direct T.V. and Echo Star. They are licensed by the F.C.C. and are authorized to have their encrypted subscription programming signals viewed in the United States. Counsel advise that their signals are not authorized under the F.C.C. rules to be broadcast for reception and decoding outside the U.S.
(4) The plaintiff alleges that the defendants' business activities breach ss. 9.1(c) and 10.1(b) of the Radio Communication Act and interfere with the plaintiff's business.
(5) The defendants are in the business of selling U.S. DTH decoder systems to Canadians and supplying them with a U.S. address and other services which allow them to subscribe for and pay for programming from U.S. DTH broadcasters. This is what, on this application, was termed "grey market activities". The plaintiff also says that the defendants have engaged in what is termed "black market activities", that is, the selling of modified DTH decoder cards that permit the decoding of U.S. DTH broadcasters' signals without any payment to the broadcasters.
(6) The defendants have consented to a cease and desist order in respect of these latter activities. In view of that, the issue before me is whether an injunction should issue with respect to the grey market activities carried on by the defendants, either on a permanent or interim basis.
(7) The issue in the underlying action is the interpretation of s. 9.1(c) of the Radio Communication Act; on this application the issue is whether the plaintiff has met the test for an injunction. S. 9.1(c) provides as follow: No person shall (c) decode an encrypted subscription programming signal or encrypted network feed, otherwise than under and in accordance with authorization from the lawful distributor of the signal or feed.
(8) "Lawful distributor" is defined by the Radio Communication Act as a person who has the lawful right in Canada to transmit the signal and authorize its decoding. "Subscription programming signal" means radio communication that is intended for a reception, either directly or indirectly, by the public in Canada or elsewhere on payment of a subscription fee or other charge.
(9) It is an offence under s. 9.1(d) of the Radio Communication Act to operate a radio apparatus so as to receive an encrypted subscription programming signal or encrypted network feed that has been decoded in contravention of 9.1(c).
(10) Section 18.1 creates a civil cause of action in favour of any person who holds an interest in the content of a subscription programming signal or network feed by virtue of copyright ownership or a license granted by a copyright owner. If loss or damages are suffered as a result of conduct that is contrary to s. 9.1(c) or (d) or s. 10.1(b), provable damages may be recovered. Such person also has the right to obtain other remedies, including an injunction, accounting, or other remedy that the court considers appropriate.
(11) The plaintiff contends that s. 9.1(c) makes it an offence to decode any encrypted signals or feeds without the authorization of a lawful distributor, which by definition means a person who has the lawful right in Canada to transmit the signal or fee and authorize its decoding. The defendants, on the other hand, contend that s. 9.1(c) simply makes it unlawful to decode the encrypted transmissions of a lawful distributor without paying for it.
(12) The courts in three Canadian provinces, in cases involving criminal prosecutions, have held that s. 9.1(c) does not encompass the decoding of foreign signals for which there is no lawful distributor in Canada (see R. v. Love (1997), M.J. (No. 109); R. v. Ereiser (1997), S.J. (No. 276); R. v. LeBlanc (1997), M.S.J. (No. 476)).
(13) However the plaintiff relies on other decisions holding to me contrary in civil actions with facts very similar to the facts in the case at bar. The latest of these decisions is a decision of Mr. Justice Nordheimer of the Ontario Supreme Court of Justice, issued October 5, 1999, unreported, Court File 99CV174995.
(14) Mr. Justice Nordheimer heard an application by the plaintiff to restrain a similar activity in Ontario. At paragraph 15, Nordheimer J. turned to the question as to whether an interlocutory injunction should be granted. After setting out the test and referring to s. 9.1(c) and (d) of the Radio Communication Act, at paragraph 18, he stated: Further, the type of activities engaged in by the defendants here have already been found in other proceedings to offend the aforementioned provisions of the Radio Communication Act. He then referred to a 1997 decision of Mr. Justice Gibson in the Federal Court, ExpressVu Inc. v. NII Norsat International Inc. (1997), F.C.J. (No. 10004), which was affirmed on appeal.
(15) In Norsat Mr. Justice Gibson had before him a similar civil case and, when one reviews his decision, it is apparent that he, in turn, adopted the earlier analysis of a Provincial Court judge in Alberta, Jude LeGrandeur, with respect to the proper interpretation of s. 9.1(c). At page 16 of his reasons, Mr. Justice Gibson sates: In my analysis of the application of the above-quoted expansion of a portion of s-s. 9.1 on the facts before me, I adopt much of the analysis of His Honour Judge J. LeGrandeur in the Quality Electronics case cited earlier. He then went on to quote extensively from the analysis of Judge LeGrandeur.
(16) In Quality Electronics LeGrandeur J. reviewed the legislation and concluded that, given the statute as a whole and he perceived to be the legislative purpose of the Radio Communication Act, that s. 9.1(c) was intended to provide an absolute prohibition against the decoding of encrypted subscription program signals unless they emanate from a lawful distributor in Canada and that distributor authorizes their decoding. This decision was upheld on appeal by the Court of Queen's Bench.
(17) The issue before me is whether the plaintiff has made out a case for an injunction. In deciding this I must consider whether s. 9.1(c) provides for the absolute prohibition as described by LeGrandeur J. The powers of a court in matters of this nature were succinctly summarized by Lord Reid in Westminster Bank v. Zane (1966), A.C. 182, as follows: No principle of interpretation of statutes, however, is more firmly settled than the rule that the court must deduce the intention of Parliament from the words used in the Act. If those words are in any way ambiguous, if they are reasonably capable of more than one meaning, or if the provision in question is contradicted by, or is incompatible with any other provision in the Act, then the court may depart from the natural meaning of the words in question, but beyond that, we cannot go.
(18) Based on the evidence before me and counsel's submissions on this interlocutory application I conclude that the words in s. 9.1(c) are neither ambiguous nor can they be said to contradict other provisions in the Act. 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 plaintiff, 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.
(19) The interpretation of s. 9.1(c) asserted by the plaintiff 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 Radio Communication Act should not be interpreted in this manner in the absence of such clear parliamentary language.
(20) In its submissions, the defendants also refer to extra legislative sources, including an extract from Hansard, where the Honourable Marcel Masse at the time of the Third Reading of the House of Commons, Bill C40, stated: The bill also recognizes that newer technologies allow programming services to encode their signals for distribution to paying customers only. For this reason, it provides a right of civil action against theft of encoded signals, a provision which has found support from the cable vision and satellite direct home television industries (Hansard, December 4, 1990, at page 16224). This also supports the contention that s. 9.1(c) was intended to apply only to the theft of signals from lawful distributors in Canada and not the paid subscription by Canadians to signals from distributors outside Canada.
(21) Accordingly, I am not prepared to grant to the plaintiff the injunctive relief sought. Rather, I would direct that the trial of this matter proceed on an expedited basis.
(22) Are there any submissions on costs?
(SUBMISSIONS BY COUNSEL)
(23) THE COURT: Costs in the cause would be your submission. Thank you.
(24) COUNSEL: I'm sorry, I don't know that I can agree with that on behalf of Michelle Lee because certainly, although my friend spoke for his clients in regard to their business, he did not speak for Michelle Lee in regard to any order to that effect and, as I said, she was simply a bookkeeper and wants to go about her work.
(25) THE COURT: Yes.
(SUBMISSIONS BY COUNSEL)
(26) THE COURT: I am not quite sure where Ms. Lee is left in this. That is my dilemma. (SUBMISSIONS BY COUNSEL)
(27) THE COURT: In the circumstances, costs will be in the cause. That still leaves open Ms. Lee's position.
(SUBMISSIONS BY COUNSEL)
(28) THE COURT: Yes, I am leaving the costs in the cause. Presumably you will continue with this action and seek an early trial. She will be one of the defendants and you may ultimately succeed.
(SUBMISSIONS BY COUNSEL)
(29) THE COURT: I think the best way to proceed is this way, Mr. McKenzie. It certainly has been represented to the court that she is no longer an employee, that she is out looking for other work, and I am prepared to accept counsel's representation to that effect. In the event that there is any evidence that she is either seeking to rejoin or become part of the defendants' organization, or is engaging in any other activity which falls under the rubric of black market activities, you will be at liberty to re-apply. I will remain seized and I expect I will not hesitate to issue the type of order that is being consented to by the defendants.
(30) So, in other words, if you learn that she is either engaging in a new business that is doing these black market activities or is going back to work for the defendants, then I am inviting you to apply for an injunction in the same terms.
(SUBMISSIONS BY COUNSEL)
(31) THE COURT: If she goes back to work for Can-Am?
(32) COUNSEL: Yes.
(33) THE COURT: I just said I would invite an application to have her enjoined on the same terms as Can-Am. In other words, if she goes back to work for Can-Am or ÐÐ
(34) COUNSEL: So, it would be favourably received.
(35) THE COURT: Yes, I expect that would be so. I shall remain seized since I am familiar with the case.
SUBMISSIONS BY COUNSEL)
(36) THE COURT: Well, I think, that is why I tried to say what the court's reaction would be in the event that you were to come back.
(SUBMISSIONS BY COUNSEL)
(37) THE COURT: Yes, I am seized of this one issue. The reason I am not seizing myself more broadly is that my schedule is rather full right now. If I were to do that, you might be delayed in getting before me.
(SUBMISSIONS BY COUNSEL)
(38) THE COURT: No, I have seized myself only with the injunction matter which I see as arising from this motion.
SIGNED BY The Honourable Mr. Justice Brenner
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