T-1639-96
ExpressVu Inc., Allarcom Pay Television Limited, The Family Channel Inc., and TMN Networks Inc. (Plaintiffs)
v.
NII Norsat International Inc. c.o.b. "Aurora Distributing", Price Costco Canada Inc., London Drugs Limited, A.C.E. Imports International Inc., The (Discount) Stereo Store Ltd. c.o.b. "Base Electronics", Base Electronics Corp., A. & B. Sound Ltd., Jerry's Radio & T.V. of Barrie Limited, Hi-Fi 2000 (Yorkdale) Ltd. (Defendants)
Indexed as: ExpressVu Inc.v. NII Norsat International Inc. (T.D.)
Trial Division, Gibson J."Toronto, June 23; Ottawa, July 23, 1997.
Broadcasting — Licensed Canadian-based direct broadcast satellite (DBS) service provider seeking damages, injunctive relief against defendants re importation and sale of receivers (small satellite dishes) and decoders for receiving DBS signals originating in U.S.A. from broadcasters not licensed to broadcast in Canada — Interpretation of Radiocommunication Act, ss. 9, 10 and 18 — Act, s. 9(1)(c) providing absolute prohibition against decoding of encrypted subscription program signals unless emanating from lawful distributor in Canada authorizing decoding — Plaintiffs having right of civil action under Act, s. 18 as have suffered loss or damages as result of conduct of defendant, Norsat, contrary to Act, s. 10(1)(b).
Construction of statutes — Licensed Canadian-based direct broadcast satellite (DBS) service provider seeking damages, injunctive relief against defendants re importation and sale of receivers (small satellite dishes) and decoders for receiving DBS signals originating in U.S.A. from broadcasters not licensed to broadcast in Canada — Radiocommunication Act, ss. 9, 10, 18 — Adoption of thorough, compelling analysis of interpretation of Act, s. 9(1)(c) by Provincial Court Judge in R. v. Knibb: applying modern purposive approach to statutory interpretation (establishing legislative purpose by relying on legislator's statements, commission reports, Hansard, academic texts, as well as words of legislation read in context), Act, s. 9(1)(c) providing absolute prohibition against decoding of encrypted subscription program signals unless emanating from lawful distributor in Canada authorizing decoding — Interpretation authorizing completely unregulated broadcasting in Canada not consistent with purpose, object of Broadcasting Act which must be considered when reading provisions of Radiocommunication Act — As Act, s. 9(1)(c) has not been directly challenged under Charter, s. 2(b) (freedom of expression), Charter cannot be used as interpretive tool to defeat purpose of legislation or to give it effect Parliament clearly intended it not to have.
Constitutional law — Charter of Rights — Charter as interpretive tool — Absent Charter challenge, Charter cannot be used as interpretive tool to defeat purpose of legislation or to give it effect Parliament clearly intended it not to have.
The plaintiff, ExpressVu, has been licensed by the CRTC to carry on a direct to home (DTH) satellite distribution undertaking in Canada. The other plaintiffs are owners and operators of television services in Canada which distribute television subscription programming for viewing in Canada upon payment of a fee. Plaintiffs' claim is for damages and injunctive relief against the defendants who were importing and selling at wholesale receivers (small satellite dishes) and decoders for receiving direct broadcast satellite (DBS) signals from service providers in the United States, apparently licensed to provide DTH satellite television services in the U.S.A. Defendant, Norsat, applied for summary judgment or to strike out the statement of claim, arguing that there was no genuine issue for trial; that the plaintiff, ExpressVu, which had no active business, and no contracts with any customers, had no legally recognized rights which have been harmed; that there was no valid claim against the defendants under the Broadcasting Act or sections 9 or 10 of the Radiocommunication Act; that the interpretation of the Radiocommunication Act proposed by the plaintiffs was incorrect, contrary to the legislative intention, and in conflict with the Charter; that the copyright/programming rights claim had no merit.
Held, the application should be dismissed.
Section 18 of the Radiocommunication Act provides that any person holding a licence to carry on a broadcasting undertaking issued by the CRTC under the Broadcasting Act or holding an interest in the content of a subscription programming signal by virtue of copyright ownership or a licence granted by a copyright owner may sue for and recover damages from persons engaging in conduct contrary to paragraphs 9(1)(c), (d) or (e) or 10(1)(b) of the Radiocommunication Act. Subsection 9(1) provides that no person shall decode an encrypted subscription programming signal otherwise than under and in accordance with an authorization from the lawful distributor of the signal.
For the plaintiffs' claim to succeed, in so far as it is based on section 18 of the Radiocommunication Act, the plaintiffs must establish (1) that they are persons described in one or more of paragraphs (a) to (d) of subsection 18(1); (2) that there has been conduct of the defendants contrary to any of paragraphs 9(1)(c), (d) or (e) or 10(1)(b) of the Act; and (3) that they have suffered loss or damage as a result of that conduct.
(1) That ExpressVu held a licence to carry on a broadcasting undertaking issued by the CRTC under the Broadcasting Act and therefore was a person described in paragraph 18(1)(c) was clearly established. The fact that it did not yet operate a DBS service was irrelevant. The other plaintiffs each held an interest in the content of a subscription programming signal by virtue of licences granted by copyright owners and were thus persons described in paragraph 18(1)(a).
(2) Norsat's activities gave rise to a reasonable inference that the equipment had been used, or was intended to be used, for the purpose of contravening section 9. Norsat proposed an interpretation of subsection 9(1) such that where there is no lawful distributor in Canada, paragraph 9(1)(c) should be interpreted so as not to constitute it an offence to decode a DTH signal emanating from a DBS service provider outside of Canada where the authorization of the service provider has been obtained. Rather, Norsat submits that 9(1)(c) should be interpreted so as to create an offence where an encrypted subscription signal is decoded without the consent of the originator, wherever he might be, or as an "anti-piracy" provision.
The analysis and interpretation of Judge LeGrandeur in R. v. Knibb, using the modern purposive approach to statutory interpretation (establishing the legislative purpose by relying on legislators' statements, commission reports, Hansard, academic texts, as well as the words of the legislation read in context) should be adopted. Accordingly, paragraph 9(1)(c) of the Act should be interpreted as providing an absolute prohibition against the decoding of encrypted subscription program signals unless they emanated from a lawful distributor in Canada and that distributor authorizes their decoding. An interpretation that would allow unfettered access to encrypted signals from outside Canada would fly in the face of the broadcast regulatory policy that the Canadian system operates under. Such an interpretation would authorize completely unregulated broadcasting into Canada by DBS service providers in the United States and perhaps elsewhere that are completely beyond the reach of Canadian government policy and regulation. This would be inconsistent with the purpose or object of the Broadcasting Act, which purpose must be considered when reading the provisions of the Radiocommunication Act which is part of the regulatory scheme of broadcasting in Canada.
The defendant did not seek to strike paragraph 9(1)(c) as being contrary to the freedom of expression provisions of the Charter, paragraph 2(b); rather, it argued that it is a principle of statutory interpretation that the Court should interpret legislation so as to comply with entrenched constitutional values. However, as was stated by the Supreme Court of Canada in Canada (Attorney General) v. Mossop, absent a Charter challenge, the Charter cannot be used as an interpretive tool to defeat the purpose of legislation or to give legislation an effect Parliament clearly intended it not to have.
On that interpretation, Norsat's conduct was contrary to paragraph 10(1)(b) of the Radiocommunication Act in that it gave rise to a compelling inference that the equipment was intended to be used for the purpose of contravening section 9 through the decoding of encrypted subscription programming signals without authorization from a person who had the lawful right in Canada to transmit those signals.
(3) ExpressVu has suffered loss or damage and will continue to do so unless present practices are dramatically altered. Even though ExpressVu has not yet commenced to offer a DBS service, there was no doubt that the activities of Norsat, the retailers to whom it sells, the purchasers from those retailers and those who facilitate those purchasers in activating their decoders continue to occupy an increasing share of the Canadian market for DBS services. And the evidence showed that the other plaintiffs have suffered some loss or damage by reason of the fact that programming to which they have exclusive rights in all or part of Canada by virtue of licences from copyright holders is being received and viewed in Canada without their authorization.
statutes and regulations judicially considered
Broadcasting Act, S.C. 1991, c. 11, s. 3(1).
Federal Court Rules, C.R.C., c. 663, RR. 432.1 (as enacted by SOR/94-41, s. 5), 432.2 (as enacted idem), 432.3 (as enacted idem), 432.4 (as enacted idem), 432.5 (as enacted idem), 432.6 (as enacted idem), 432.7 (as enacted idem).
Radiocommunication Act, R.S.C., 1985, c. R-2 (as am. by S.C. 1989, c. 17, s. 2), ss. 2 (as am. by S.C. 1991, c. 11, s. 81) "encrypted", "lawful distributor", "subscription programming signal", 9(1) (as am. by S.C. 1989, c. 17, s. 6; 1991, c. 11, s. 83), 10(1)(b ) (as am. by S.C. 1989, c. 17, s. 6), (2.5) (as am. idem; 1991, c. 11, s. 84), 18 (as enacted idem, s. 85).
cases judicially considered
applied:
R. v. Knibb, [1997] A.J. No. 513 (Prov. Ct.) (QL).
not followed:
R. v. Ereiser (1997), 156 Sask. R. 71 (Q.B.).
referred to:
Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; (1989), 58 D.L.R. (4th) 577; 25 C.P.R. (3d) 417; 94 N.R. 167.
MOTION by defendants for summary judgment or to strike statement of claim in an action for an injunction to restrain the sale of equipment for decoding encrypted television signals not broadcast by a lawful distributor in Canada. Motion dismissed.
counsel:
K. William McKenzie, Karen L. Wilford and Patrick J. Lassaline for plaintiff.
J. L. McDougall, Q.C. and Craig R. Vander Zee for defendant A.C.E. Imports.
Andrew J. Roman and Derek J. Ferris for defendant NII Norsat International.
Ian MacPhee for defendant Price Costco.
solicitors:
Crawford, McKenzie, McLean & Wilford, Orillia, Ontario, for plaintiff.
Fraser & Beatty, Toronto, for defendant A.C.E. Imports.
Miller Thomson, Toronto, for defendant NII Norsat International.
Lapointe Rosenstein, Montréal, for defendant Price Costco.
The following are the reasons for order rendered in English by
Gibson J.:
INTRODUCTION
By notice of motion filed the 13th of November, 1996, the defendant NII Norsat International Inc. c.o.b. "Aurora Distributing" (Norsat) and two other defendants applied for summary judgment, or, alternatively to strike out the statement of claim in its entirety, or, in the further alternative, to strike out "such claims and pleadings in the statement of claim as the Court considers just." By order of the Associate Chief Justice dated the 5th of December, 1996, Norsat's motion together with other motions were set down for hearing at Toronto commencing the 23rd of June, 1997. By further order of the Associate Chief Justice dated the 20th of May, 1997, the participation of two other defendants with Norsat in its motion for summary judgment was withdrawn. In the result, Norsat's motion for summary judgment proceeded before me commencing the 24th of June and continuing on the 25th of June with Norsat as the only applicant. Motions of A.C.E. Imports International Inc. and of the plaintiffs, also for summary judgment, were scheduled to be heard before me in the same week of June 1997.
The bases for Norsat's motion for summary judgment were stated in the following terms:
1) There are no genuine issue for trial, the only issues being questions of law . . . ;
2) The Federal Court has no jurisdiction over claims based on the Ontario Business Practices Act or the Criminal Code of Canada . . . ;
3) The plaintiff ExpressVu has no active business, and no contracts with any consumers, hence no legally recognized rights which have been harmed . . . ;
4) The action is premature, and the claims made are hypothetical and speculative as there is no Canadian direct broadcast satellite ("DBS") service currently operating . . . ;
5) The plaintiffs have not given any undertaking to compensate the defendant if their action for an injunction fails at trial ;
6) There is no valid claim against these defendants [now Norsat] under the Broadcasting Act as neither they nor the U.S. DBS service providers are broadcasting anything in Canada . . . ;
7) There is no valid claim against these defendants [now Norsat] under sections 9 or 10 of the Radiocommunication Act as these sections do not make it an offence for a Canadian consumer to subscribe, by whatever means, to a U.S. DBS service . . . ;
8) The interpretation of the Radiocommunication Act proposed by the plaintiffs is incorrect, contrary to the legislative intention, and in conflict with the Canadian Charter of Rights and Freedoms;
9) The copyright/programming rights claim has no merit, and no relevance to these defendants because:
i) they are not copying or broadcasting anything;
ii) the claim is premature/speculative/hypothetical until ExpressVu is in operation;
iii) the alleged rights, even if they exist, are not being violated by the actions of these defendants;
iv) the signals being broadcast by the U.S. DBS service providers are not the same as the programs/signals for which the plaintiffs are the authorized distributors;
v) the plaintiffs' programming rights are non-existent, or not exclusive, for DBS services; and
vi) the claim is unforceable given U.S. DBS systems whose spillover into Canada is inevitable . . . .
The initials "DBS" used throughout these reasons stand for "direct broadcast satellite".
This action revolves around the operations of DBS service providers in the United States, apparently licensed to provide direct to home (DTH) satellite television services to homes and other establishments in the United States. The signals of these DBS service providers have a "footprint" that encompasses not only all of the United States but also most, if not all, of Canada, and Mexico and parts of the Caribbean. While DBS service providers have been licensed by the appropriate authorities in Canada, to this point in time, neither of the Canadian-based DBS service providers is in full operation.
The claims of the plaintiffs, as set forth in their statement of claim filed the 10th of July, 1996 are in the following terms:
a. For an interim and permanent injunction prohibiting the Defendants, their agents, servants, representatives, or anyone on their behalf from directly or indirectly manufacturing, importing, distributing, leasing, selling, offering for sale, installing, modifying, operating or possessing equipment or devices of any kind whatsoever (or any component thereof) that is designed to be used or can be modified to be used to directly or indirectly decode encrypted subscription programming signals that are not transmitted or broadcast by a lawful distributor in Canada including but not limited to, encrypted signals broadcast or transmitted by any party in the United States of America.
b. For an accounting of all monies earned or received by the defendants with respect to any of the actions set out in the previous clause.
c. For an accounting of all monies earned or received by the defendants or any of them as compensation for services rendered, directly or indirectly, that have as their object assisting, aiding, abetting or enabling any party to subscribe to, receive, or decode any encrypted subscription programming signal.
d. For an interim and permanent injunction prohibiting the defendants, or any of them, their servants, agents, representatives, or anyone on their behalf from advising or offering advice or information to any person that would directly or indirectly encourage, assist, aid or abet any person in Canada to decode an encrypted subscription programming signal the contents of which are in whole or in part made up of programming for which one or more of the plaintiffs, or one or more of them, have the exclusive distribution rights in Canada, without the written authorization of the respective plaintiff or plaintiffs.
e. Without limiting the generality of the foregoing, for an interim and permanent injunction prohibiting the defendants, their servants, agents, representatives, or anyone on their behalf from directly or indirectly providing information or advice to any person describing one or more methods whereby any person can subscribe for, receive or decode encrypted subscription programming signals that originate in the United States of America;
f. For damages in the amount of $50,000,000.00;
g. For punitive, aggravated and exemplary damages in the amount of $5,000,000.00;
h. For pre and post judgment interest;
i. For solicitor and client costs;
j. For such further and other relief as counsel may advise and this Honourable Court permit;
It is against all of these claims for relief that Norsat seeks summary judgment.
THE PARTIES
The plaintiff ExpressVu Inc. is a Canadian corporation having its head office at Mississauga, Ontario. On the 20th of December, 1995, it was granted a broadcasting licence by the Canadian Radio-television and Telecommunications Commission (the CRTC) to carry on a new, national, DTH satellite distribution undertaking in Canada. In the result, ExpressVu has the lawful right in Canada to transmit encrypted subscription programming signals by satellite and authorize their decoding by subscribers who have paid for the right to do so.
The plaintiffs Allarcom Pay Television Limited (Allarcom), The Family Channel Inc. (Family Channel) and TMN Networks Inc. (TMN) are owners and operators of television services in Canada which distribute television subscription programming for viewing by television viewers throughout Canada for a fee. Each of them holds a licence issued by the CRTC to carry on a programming or broadcasting undertaking in Canada. Each of them holds an interest in the content of a subscription programming signal by virtue of a licence granted by a copyright owner.
The defendant Norsat is a corporation, the shares of which are publicly traded, with a diversified business both within and outside Canada. Its business includes the importation and sale at wholesale of receivers (small satellite dishes) and decoders for receiving DBS signals originating in the United States.
The defendant A.C.E. Imports International Inc. (A.C.E.), which has filed a separate motion for summary judgment against the plaintiffs and which was the only other defendant to take an active part in the hearing before me, is a British Columbia corporation engaged, like Norsat, among other things, in the sale at wholesale of small satellite dishes and decoders for receiving DBS signals originating in the United States.
SUMMARY JUDGMENT RULES
Federal Court Rules 432.1 to 432.7 [C.R.C., c. 663 (as enacted by SOR/94-41, s. 5)] govern the practice on applications for summary judgment before this Court. Subsection 432.1(2) provides as follows:
Rule 432.1 . . .
(2) A defendant may, after filing and serving a defence and at any time prior to the fixing of the time and date for trial, make a motion to a judge, with supporting affidavit material or other evidence, for summary judgment dismissing all or part of the claim in the statement of claim.
Subsection 432.3(3) provides as follows:
Rule 432.3 . . .
(3) Where a judge is satisfied that the only genuine issue is a question of law, the judge may determine the question and grant summary judgment accordingly.
Counsel before me were in agreement that the only genuine issue for trial in this matter, in so far as the claim of the plaintiffs is based on section 18 of the Radiocommunication Act,1 is a question of law. I am in agreement with counsel on this conclusion.
SUMMARY OF RELEVANT FACTS
The relevant facts underlying the question of law were presented to me by counsel for Norsat in essentially the following terms:
First, Norsat Imports DBS equipment from the United States and sells it at wholesale to retailers in Canada who in turn sell it to consumers or "viewers"; second, the DBS equipment imported and sold by Norsat at wholesale is capable of use for only one purpose, that being to receive and decode certain encrypted DBS signals originating in the United States; third, the broadcasters who broadcast these signals in the United States are not licensed broadcasters in Canada; fourth, the U.S. DBS broadcasters have a practice of not accepting subscriptions for their services from within Canada, that is to say, they will not activate a customer service where the billing address provided is outside of the United States; fifth, a number of persons in Canada and in the U.S. provide U.S. billing addresses to Canadians who do not themselves have a convenient U.S. billing address. In fact, Norsat itself provides such a service which some of its retailers and their customers make use of; sixth, U.S. based DBS providers seem to be aware of the existence of those who facilitate Canadians in receiving the U.S. D.B.S. signals in a decoded form and at least tacitly encourage their operations; seventh, unless U.S. based DBS providers are paid for their services they will normally deactivate or cut off the non-paying customer; and finally, piracy or theft of the signals of U.S. based DBS providers through the use of counterfeit chips or cards designed to permit a user to receive the signals in decoded form without payment for the services is not at issue in this law suit.
THE RADIOCOMMUNICATION ACT
The Radiocommunication Act was substantially amended by chapter 11 of the Statutes of Canada, 1991 which came into force on the 4th of June, 1991. A new section 18 was added to the Act. The relevant portions of that section for the purposes of this matter read as follows:
18. (1) Any person who
(a) holds an interest in the content of a subscription programming signal . . . by virtue of copyright ownership or a licence granted by a copyright owner,
(b) is authorized by the lawful distributor of a subscription programming signal . . . to communicate the signal . . . to the public,
(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.
. . .
(4) For the purposes of an action under subsection (1), the Federal Court is a court of competent jurisdiction.
The relevant portion of subsection 9(1) [as am. by S.C. 1989, c. 17, s. 6; 1991, c. 11, s. 83] reads as follows:
9. (1) No person shall
. . .
(c) decode an encrypted subscription programming signal . . . otherwise than under and in accordance with an authorization from the lawful distributor of the signal . . . .
A related amendment added the following subsection to section 10 [as am. by S.C. 1989, c. 17, s. 6; 1991, c. 11, s. 84]:
10. . . .
(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.
The following definitions were added in section 2 [as am. by S.C. 1991, c. 11, s. 81] of the Act:
2. . . .
"encrypted" means treated electronically or otherwise for the purpose of preventing intelligible reception;
"lawful distributor", in relation to an encrypted subscription programming signal . . . means a person who has the lawful right in Canada to transmit it and authorize its decoding;
. . .
"subscription programming signal" means radio-communication 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.
The new offence created by paragraph 9(1)(c) of the Act interrelated with a pre-existing provision in section 10 in the following terms:
10. (1) Every person who
. . .
(b) without lawful excuse, manufacturers, 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.
Reading the relevant portion of subsection 9(1) together with the relevant definitions quoted above, it would read as follows:
No person shall decode a radiocommunication that has been treated electronically or otherwise for the purpose of preventing intelligible reception and 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 . . . . otherwise than under and in accordance with an authorization from a person who has the lawful right in Canada to transmit the signal . . . and authorize its decoding;
The plaintiffs' claim, in so far as it is based on the Radiocommunication Act, derives from the statutory cause of civil action created by section 18 of that Act. In order to succeed on that basis, the plaintiffs must establish: first, that they are persons described in one or more of paragraphs (a) to (d) of subsection 18(1); second, that there has been conduct of the defendants contrary to any of paragraphs 9(1)(c), (d) or (e) or 10(1)(b) of the Act; and third, that they have suffered loss or damage as a result of that conduct.
I return then to the facts set out above that are not in dispute. Norsat admits that it imports into Canada, distributes, offers for sale, sells and possesses equipment the sole end use of which is to receive and decode encrypted DBS signals originating in the United States. Put another way, and in the jargon of the Radiocommunication Act, the sole end use of such equipment is to receive and decode an encrypted subscription programming signal. Further, I take it to be acknowledged on behalf of all parties before me that the originators of such signals are not "lawful distributors" in that, in relation to the relevant encrypted subscription programming signal, they are not persons who have the lawful right in Canada to transmit those signals and authorize their decoding. The originators of the signals might well have such a lawful right in the United States and it is not of their volition that the encrypted signals that they originate and transmit to a stationary satellite over the equator return with a "footprint" that, by hazard, covers all or virtually all of Canada. But whether they have such a lawful right in the United States is not a relevant concern.
POSITIONS OF THE PARTIES
The position taken on behalf of Norsat before me can be briefly stated as follows: the plaintiffs have no cause of action under section 18 of the Radiocommunication Act because, although Norsat acknowledges that ExpressVu is a person described in paragraph 18(1)(c) and the other plaintiffs are persons described in paragraph 18(1)(a), the facts of this matter disclose no conduct that is contrary to paragraph 9(1)(c), the only one of paragraphs 9(1)(c), (d) and (e) that could be relevant, and therefore Norsat cannot be found to be engaging in conduct that is contrary to paragraph 10(1)(b) of the Act. Counsel urged that to interpret paragraph 9(1)(c) in such a way as to find a contravention of that paragraph on the facts before me would be perverse. He argued that it has never been an offence for persons in Canada to receive and watch American-originated television signals through the use of "rabbit-ears" or roof-top antennas or other such primitive technology and to now find that such conduct has been made an offence by Parliament in the more current circumstances where signals are encrypted and are available through the medium of a satellite rather than through direct line-of-sight reception from the transmitter would surely be contrary to Parliament's intention in enacting the amendments to the Radiocommunication Act that are referred to above. He further argued that such an interpretation would be inconsistent with the Canadian Constitution because it would impose a severe restriction on Canadians generally or, alternatively, on some Canadians, receiving publicly available information. For this proposition, counsel cited Irwin Toy Ltd. v. Quebec (Attorney General).2
While not much was made of the point, counsel on behalf of Norsat took the position that the evidence provided on behalf of the plaintiffs as to loss or damage was insubstantial at best.
Counsel urged that I should be very wary of giving any weight to decisions of criminal courts that have interpreted paragraph 9(1)(c) of the Act since there have been decisions interpreting the provision both for and against the position he advocates. He urged that it was Parliament's intent, and I should so interpret paragraph 9(1)(c), to limit its scope to the "theft" of signals through the unauthorized decoding of encrypted signals wherever they might originate.
As indicated earlier in these reasons, the defendant A.C.E. was the only other defendant that took an active part in the hearing before me. As also indicated, A.C.E. has itself filed a motion for summary judgment against the plaintiffs. In very brief submissions, counsel for A.C.E. adopted the position enunciated on behalf of Norsat and emphasized that a result other than that advocated on behalf of Norsat would be inconsistent with the realities of modern-day technology and the interests of Canadians as a whole.
Counsel for the plaintiffs urged that the plaintiffs were among those on whom Parliament intended to confer a statutory right of civil action in enacting sections 9, 10 and 18 of the Radiocommunication Act. He urged that I should find that the plaintiffs have suffered loss or damage by reason of the conduct of Norsat in importing, distributing, offering for sale, selling and possessing satellite dishes and decoders capable only of use in receiving and decoding DBS signals emanating from a DBS service provider in the Unites States.
Counsel acknowledged that the success or failure of the plaintiffs' claim under section 18 of the Act turns on the interpretation of paragraph 9(1)(c). He urged that I should adopt a purposive test in interpreting that paragraph and that, in applying such a test, I should have regard not simply to sections 9, 10 and 18 of the Act but to the total context in which those sections are found, including the whole of the Radiocommunication Act and the Broadcasting Act.3 He urged that the Broadcasting Act represents part of the same legislative scheme as the Radiocommunication Act and that, more particularly, the broadcasting policy for Canada enunciated in subsection 3(1) of the Broadcasting Act, and substantially revised and expanded in the same amending Act by which paragraph 9(1)(c) of the Radiocommunication Act was enacted, constitutes an essential element in a purposive interpretation of the interaction of sections 9, 10 and 18 of the Radiocommunication Act.
Counsel referred me to R. v. Knibb4 where the Honourable Judge LeGrandeur undertook what counsel urged was a thorough and compelling analysis of the interpretation of paragraph 9(1)(c) of the Radiocommunication Act in arriving at an interpretation favourable to the plaintiffs in this matter.
ANALYSIS
I repeat here for ease of reference the relevant portions of the text of section 18 of the Radiocommunication Act.
18. (1) Any person who
(a) holds an interest in the content of a subscription programming signal . . . by virtue of copyright ownership or a licence granted by a copyright owner,
(b) is authorized by the lawful distributor of a subscription programming signal . . . to communicate the signal . . . to the public,
(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.
. . .
(4) For the purposes of an action under subsection (1), the Federal Court is a court of competent jurisdiction.
I reiterate, to establish a cause of action under subsection 18(1), the plaintiffs must establish; first, that they are persons described in one or more of paragraphs (a) to (d) of that subsection; second, that there has been conduct of the defendants contrary to any of paragraphs 9(1)(c), (d) or (e) or 10(1)(b) of the Act; and third, that they have suffered loss or damage as a result of that conduct.
That the plaintiff ExpressVu holds a licence to carry on a broadcasting undertaking issued by the Canadian Radio-television and Telecommunication Commission under the Broadcasting Act and therefore is a person described in paragraph 18(1)(c) is clearly established on the evidence before me. A licence was issued to ExpressVu by decision of the CTRC dated the 20th of December, 1995 to carry on a "[n]ew, national, direct-to-home satellite distribution undertaking which is a broadcasting undertaking." The evidence before me does not disclose that ExpressVu yet operates a DBS service. But whether it does or not, while relevant to the question of whether ExpressVu has suffered loss or damage, is not relevant to the question of whether or not it is a person described in paragraph 18(1)(c ). There can be no doubt that it is such a person.
Similarly, I am satisfied that the evidence before me establishes that the other plaintiffs each hold an interest in the content of a subscription programming signal, that is to say, 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, by virtue of one of more licences granted by a copyright owner or owners. Once again, while the evidence before me as to the nature and extent of the licences was limited, the existence of such licences was not open to dispute. Thus, each of the plaintiffs other than ExpressVu is a person described in paragraph 18(1)(a).
I turn then to paragraph 10(1)(b). It was undisputed before me that Norsat imports, distributes, offers for sale, sells and possesses equipment, namely DBS service reception dishes and decoders capable of only one end use, the reception of DBS signals emanating from a United States DBS service provider. No "lawful excuse" is disclosed by the evidence before me. The question then remains, do the circumstances under which Norsat engages in such activities "give rise to a reasonable inference that the equipment . . . has been used, or is or was intended to be used, for the purpose of contravening section 9"?
Once again, for ease of reference, I repeat the relevant portions of subsection 9(1) with the appropriate portions of the definitions of defined terms incorporated in the place of the defined terms themselves:
No person shall decode a radiocommunication that has been treated electronically or otherwise for the purpose of preventing intelligible reception [that is to say, an "encrypted" 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 . . . . otherwise than under and in accordance with an authorization from a person who has the lawful right in Canada to transmit it and authorize its decoding;
In my analysis of the application of the above-quoted expansion of a portion of subsection 9(1) on the facts before me, I adopt much of the analysis of his Honour Judge LeGrandeur in the Knibb case cited earlier. I will quote extensively from his reasons.
Judge LeGrandeur wrote [at paragraphs 11-13]:
Defence counsel urges the Court to interpret this section such that unless there is a lawful distributor, (i.e. a person who has the lawful right to transmit an encrypted radio communication and authorizes its decoding in Canada), it cannot be an offence to decode an encrypted subscription signal.
The Crown on the other hand argues that the section shall be interpreted such that no encrypted radio communication may be decoded by any person in Canada unless there is a lawful distributor of that signal in Canada . . . .
Application of the Defence interpretation would mean that as long as there was no lawful distributor in Canada for the signal intercepted [decoded], there could be no offence and therefore any Canadian may intercept [decode] any encrypted subscription signal.
As I understand the arguments of counsel before me, Norsat, which takes a position similar to that of the defence before Judge LeGrandeur, does not go so far as did counsel for the defence. Rather, counsel for Norsat urges me to interpret subsection 9(1) such that where there is no lawful distributor in Canada, paragraph 9(1)(c) should be interpreted so as not to constitute it an offence to decode a DTH signal emanating from a DBS service provider outside of Canada where the authorization of the service provider has been obtained. Counsel takes the position that paragraph 9(1)(c) should be interpreted so as to create an offence where an encrypted subscription signal is decoded without the consent of the originator, wherever he might be. Put another way, counsel urges that paragraph 9(1)(c) should be interpreted as an "anti-piracy" provision and notes that the agreed facts earlier set out in these reasons disclose that "piracy" or theft of encrypted subscription signals is not here at issue.
Nonetheless, as with the position of the Crown before Judge LeGrandeur, the position of the plaintiffs here is to urge an interpretation of paragraph 9(1)(c) that is clearly broader than that advocated on behalf of Norsat in that it would make any decoding of encrypted subscription signals emanating from outside Canada, with or without authorization of the originator, a contravention of paragraph 9(1)(c).
I adopt the following analysis of Judge LeGrandeur [at paragraphs 22-41]:
The modern purposive approach to statutory interpretation seeks to determine the purpose and object of the legislation and to give it such interpretation as best shares [ensures] the attainment of such object and purpose. (see Jodrey's Estate v. Province of Nova Scotia and the Attorney General of British Columbia, [1982] 2 S.C.R. 774 at 802, per Dixon, J.). [It appears to me this citation should be Covert et al v. Minister of Finance of Nova Scotia, [1980] 2 S.C.R. 774, at p. 807 per Dickson J.]
This is the approach that is to be applied in all cases regardless of whether the section or sections in the statute under consideration are ambiguous or not.
The purpose or object of the legislation is to be gleaned from the whole. The construction of a section of a statute must be considered in the context of the whole statute. It can't be looked at in isolation, but must be considered in the context of the whole statute and its determined object and purpose. Driedger on the Construction of Statutes, 3rd edition at p. 44 describes the process thus:
"In purposive analysis every factor [feature] of legislation from the overall conception to small [and] linguistic detail is presumed to be there for a reason. It is presumed to address a concern, anticipate a difficulty or in some way promote the legislature's goals."
At page 34 [35] of Driedger, supra, it is stated:
"Under a purposive approach, the definitive legislative task is not creation of a text, but the adoption of appropriate policies and goals and a plan for implementation. On this approach the text is thought of as a map or blueprint and the primary focus and interpretation is not so much the meaning of the text as the reasons for enacting it and the directions in which it points. Under a purposive approach, the Court defers to the legislature not by decoding its language, but by insuring that its plans are carried out."
Legislative purpose may be established by reliance on a description of purpose emanating from authorized sources including statements made by the legislature itself and also descriptions of purpose appearing in the extra-legislative sources like commission reports, Hansard, academic texts and the like. Legislative purpose may also be established by the courts construing a plausible account of purpose out of the words of the legislation read in context. (See Driedger, Construction of Statute page 50 through 51).
More often than not, establishing the legislative purpose or object of a statute or legislative scheme is attained by application of both the aforementioned approaches.
In my view, given the statute as a whole, what I perceive the legislative purpose of the Radiocommunication Act and related statutes to be, it is my conclusion that s. 9(1)(c) of the Radiocommunication Act provides an absolute prohibition against the decoding of encrypted subscription program signals unless they emanated from a lawful distributor in Canada and that distributor authorizes their decoding. This of course is subject to one exception, that being the exception provided by s. 10(2.3) of the Radiocommunication Act.
The Radiocommunication Act itself does not set out an authoritative statement of purpose which the Court can consider in determining the intended application of s. 9(1)(c) of the statute. The Court is left to infer the purpose of the statute and the application of s. 9(1)(c) in effecting that purpose and in doing so may consider the scheme of the legislation, the material conditions existing when it was first enacted and any subsequent amendments. From reading the legislation in this context, the Court may infer the legislature's reasons for introducing a particular program or including a particular provision or detail in the legislation. (See Driedger, supra, p. 52)
It is important in my view to look at the nature of the act, its legislative history, whether there are other statutes enacted on the same subject or which touch the same subject, and if so what the disclosed statement of purpose or object is with respect to that statute or statutes.
In 1989 the Radio Act, then in existence, was amended and thereafter became known as the Radiocommunication Act, [R.S.C., 1985, c. R-2 as amended by] S.C. [1989] c. 17. Many provisions of the Radio Act were deleted and other provisions established by the new legislation. The Act was an acknowledgment that the world of radio communication was evolving at a significant pace and that the legislation in place theretofore had not kept pace. New legislation was deemed necessary to keep pace and manage the radio spectrum environment. The Bill served to repeal or revise obsolete provisions, cure defects and increase the flexibility of the Act's application. It was also directed at strengthening the enforcement of compliance by providing for increased fines and administrative recourse rather than having to apply Criminal Code Court procedures. It represented or attempted to regulate the radio frequency spectrum for the benefit of Canada and all Canadian [interests]. (see Hansard, Commons Debates May 25th, 1989, pp. 2130 through 2136). My reference to Hansard for purposes of interpretation of the purpose and object of a statute is supported by the Alberta Court of Appeal case, Tschritter v. Alberta (Childrens' Guardian) (1989), 65 Alta. L.R. (2d) 289.
The amended act did not include s. 9(1)(c), (d) or (e). Section 10(1)(b) was therefore meaningful at that time only in the context of s. 9(1)(a) or (b). The amendment of the Radio Act in 1989 also amended certain provisions of the Broadcasting Act, R.S.C. 1985, c. B-9. In 1991 the Broadcasting Act, supra, was repealed and replaced with a new Broadcasting Act, S.C. 1991, c. 11, and by that Act the Radiocommunication Act was amended to include the subsections 9(1)(c), (d) and (e). The amendments also added to the Radiocommunication Act specific definitions and changed definitions and added a process of civil remedies for persons who had specific proprietary interests in radiocommunication signals and whose interests had been infringed contrary to the provisions of s. 9(1)(c), (d) and (e) and s. 10(1)(b) of the Radiocommunication Act. It is not insignificant in my view that the definition of broadcasting was changed in the Broadcasting Act and the Radiocommunication Act to include any transmission of programs, whether or not encrypted. The prior definition had made no reference to encrypted programs.
The new Broadcasting Act, which was proposed in 1989 and only gained royal assent in 1991, attempted to address the changes in technology and society in the area of radio communication and established a broadcast policy for all of Canada. The amendments to the Radiocommunication Act in 1991, through the new Broadcasting Act S.C. 1991, C-11 were part of the mechanism by which that stated policy was to be fulfilled.
This new broadcast policy which was first proposed in 1989 and ultimately came into effect in 1991, is set out in s. 3 of the Broadcasting Act. This policy is in my view, fundamental to the determination of the intention of the legislature with respect to the intended application of s. 9(1)(c).
It is clear in my view that the changes to the Broadcasting Act were directed at regulating more completely the broadcasting industry for the benefit of Canada and Canadian culture. The amendments to the Radiocommunication Act specifically the addition of subsections 9(1)(c), (d) and (e) were part of the mechanism by which this regulation was to take place.
Clearly part of the scheme embodied in the Broadcasting Act legislation in 1991 was the protection of Canadian culture through the regulation of program services, program materials and program undertakings. These included encrypted and unencrypted radio communications.
The Broadcasting Act declared that the entire broadcasting system was a single system to be regulated and controlled by a single entity. (See s. 3(2) of the Broadcasting Act, S.C. 1991, c. 11.) It is my view, having regard to the provisions of the Broadcasting Act, the stated policy therein, the definitions and provisions therein, that the policy set out in s. 3 is directed at all aspects of radio communication including encrypted radio signals.
The Broadcasting Act and the Radiocommunication Act must be seen as operating together as part of a single regulatory scheme. The provisions of each statute must accordingly be read in the context of the other and consideration must be given to each statute's roll in the overall scheme. (Driedger, supra, p. 286).
The addition of s. 9(1)(c), (d) and (e) and other sections to the Radiocommunication Act through the provisions of the Broadcasting Act, 1991 are supportive of that approach in my view. Subsections 9(1)(c), (d) and (e) of the Radiocommunication Act must be seen as part of the mechanism by which the stated policy of regulation of broadcasting in Canada is to be fulfilled.
It is clear from the stated policy in the Broadcasting Act that there is only one broadcast system in Canada that is to be regulated by a single entity. Programs that are not a part of the Canadian Broadcasting system, eg. encrypted satellite signals from outside Canada that are not distributed by a lawful distributor in Canada are not capable of regulation in the normal sense, that is by regulation of the distributor. This of course means that there can be no regulation in the context of the policy set out in s. 3 of the Broadcasting Act. It is impossible to prevent the transmission of satellite signals emanating from outside Canada because it is impossible to block such signals once transmitted. The regulation of encrypted signals that are not or do not become part of the Canadian Broadcasting system can only occur by regulation of the recipient. That is, to prohibit such reception except in circumstances where the signal is subject to the regulated control of the Canadian Broadcasting system, i.e. through a lawful distributor.
This prohibition serves to protect and enhance the purposes of the regulatory legislation as set out in s. 3 of the Broadcasting Act. Concurrently it protects and enhances the business of broadcasting in Canada by giving Canadian broadcasters a flat playing field on which to compete with other providers of services, that is in the sense that everyone entitled to broadcast, or distribute does so under the same terms and conditions. This same policy and flat playing field hopefully will allow Canadian broadcasters to expand and it also serves to assure the protection of Canadian culture requirements and the concern that we could effectively be deculturized by unregulated programming from outside services. (see Commons Debates on Bill C-40 Hansard, (November the 3rd), 1989, pp. 5546 through 5565.)
This interpretation of s. 9(1)(c) is, I would suggest, one that is plausible in the context of the overall regulatory scheme relating to broadcasting. The interpretation that would allow unfettered access to encrypted signals from outside Canada would fly in the face of the broadcast regulatory policy that the Canadian system operates under. It would be an interpretation that authorizes completely unregulated broadcasting in Canada. That is not consistent in my view with the purpose or object of the Broadcasting Act which purpose must be considered when reading the provisions of the Radiocommunication Act which is part of the regulatory scheme of broadcasting in Canada.
While I might not have used the same words as Judge LeGrandeur in respect of some of the points made by him, or expressed the analysis in quite the same way, I am satisfied that the substance of his analysis is sound and I adopt it as my own. As did he, I conclude that paragraph 9(1)(c) of the Radiocommunication Act must be read 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. As Judge LeGrandeur noted, this is subject to one exception, that being the exception provided by subsection 10(2.3) of the Radiocommunication Act which is irrelevant for the purpose of this matter. One other comment on the long quotation from Judge LeGrandeur's reasons. In the last paragraph of that quotation he states:
It [the interpretation of paragraph 9(1)(c) advocated on behalf of the defendants before him] would be an interpretation that authorizes completely unregulated broadcasting in Canada.
I would make a small but, in my opinion significant, modification in this sentence. In my view, the interpretation advocated on behalf of the defendants before Judge LeGrandeur, and equally the interpretation advocated on behalf of Norsat before me, would be an interpretation that authorizes completely unregulated broadcasting into Canada by DBS service providers in the United States and perhaps elsewhere that are completely beyond the reach of Canadian government policy and regulation.
I am cognizant of the fact that other judges in other courts have arrived at different interpretations of paragraph 9(1)(c) of the Radiocommunication Act.5 I have reviewed a number of such decisions to which I have been referred by counsel. With great respect, I find the analysis by Judge LeGrandeur more compelling.
I find no basis on which I could conclude that the interpretation arrived at by Judge LeGrandeur and which I have adopted is inconsistent with the Constitution of Canada. Once again, Judge LeGrandeur considered this question. He wrote [at paragraphs 49-51]:
Defence counsel does not seek to strike s. 9(1)(c) as being contrary to the Freedom of Expression provisions of the Charter, that is s. 2(b); but rather argues that it is a principle of statutory interpretation that the Court should interpret legislation so as to comply with entrenched constitutional values. In R. v. Zundel, [1992] 2 S.C.R. 731 at p. 771. McLachlin, J. writes:
"These authorities confirm the following basic propositions: that the common law should develop in accordance with the values of the Charter . . . . and that where a legislative provision, on a reasonable interpretation of its history and on the plain meaning of its text, is subject to two equally persuasive interpretations, the Court should adopt that interpretation which accords with the Charter and the values to which it gives expression."
Freedom of expression extends to the recipients as well as the originators of a communication. I do not intend in this case to make a determination as to whether the interpretation of s. 9(1)(c) such that it becomes an absolute prohibition against reception of certain radio communications is or is not a breach of s. 2(b) of the Charter. This section has not been challenged under the Charter and cannot be indirectly challenged through a principle of interpretation. Defence counsel is asking the Court to interpret s. 9(1)(c) in accordance with defence submissions because to interpret [it] otherwise means the section has the effect of infringing s. 2(b) of the Charter. Even if I were to so conclude, without a Charter challenge properly in place, I cannot use this interp[reta]tive principle to override what I would otherwise conclude to be the intended meaning of Parliament. Lamer, CJ in the case, Canada (Attorney General) v. Mossop (1993), 100 D.L.R. (4th) 658 at 673 makes the following point:
"Absent a Charter challenge of its constitutionality, when Parliamentary intent is clear, Courts and administrative tribunals are not empowered to do anything else but to apply the law. If there is some ambiguity as to its meaning or scope, then the Court should, using the usual rules of interpretation, seek out the purpose of the legislation and if more than one reasonable interpretation consistent with that purpose is available, that which is more in conformity with the Charter should prevail.
But, I repeat, absent a Charter challenge, the Charter cannot be used as an interpretive tool to defeat the purpose of the legislation or to give the legislation an effect Parliament clearly intended it not to have."
In this case there is no Charter challenge and there is only one reasonable interpretation consistent with the purpose of the legislation.
Once again, I adopt the reasoning of Judge LeGrandeur as my own.
On the basis of my interpretation of paragraph 9(1)(c) that it provides 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, I conclude that the acknowledged activities of Norsat constitute conduct that is contrary to paragraph 10(1)(b) of the Radiocommunication Act in that it is conduct engaged in under circumstances that give rise to a reasonable inference, indeed a compelling inference given the single end-use of the equipment it imports, distributes, etc., that the equipment is intended to be used for the purpose of contravening section 9 through the decoding of encrypted subscription programming signals without authorization from a person who has the lawful right in Canada to transmit those signals. The only signals that the satellite dishes and decoders dealt in by Norsat are capable of receiving and decoding are signals that no one in Canada has a lawful right to transmit and decode.
I turn then to the last element essential to finding a right of civil action in the plaintiffs under section 18 of the Radiocommunication Act, that is to say that the plaintiffs have suffered loss or damage as a result of the conduct of Norsat that is contrary to paragraph 10(1)(b). Counsel for Norsat urged that ExpressVu cannot have suffered loss or damage since, on the evidence before me, despite the fact that it has been licensed to do so for some time, it has not yet commenced to offer a DBS service. I reject this argument. There is no evidence before me that would indicate that ExpressVu does not continue to intend to take advantage of the licence granted to it. While it prepares to do so, the activities of Norsat, the retailers to whom it sells, the purchasers from those retailers and those who facilitate those purchasers in activating their decoders continue to occupy an increasing share of the Canadian market for DBS services. While some of those who subscribe to United States originated services through the activities of Norsat and others might also subscribe to or even switch to ExpressVu's service when it is available, I am prepared to assume that not all will do so, so long as they are allowed to continue to receive the United States originated services. While the quantification of ExpressVu's loss or damage might be very difficult, that is not the issue. I am prepared to conclude that ExpressVu has suffered loss or damage and will continue to do so unless present practices are dramatically altered.
Similarly, with respect to the other plaintiffs, the evidence before me shows that they have suffered some loss or damage by reason of the fact that programming to which they have exclusive rights in all or part of Canada by virtue of licenses from copyright holders is being received and viewed in Canada without their authorization. I acknowledge that it is entirely possible, indeed perhaps likely on the evidence before me, that all or some of the programming is being received and viewed at times and on dates (in "windows") not covered by the licenses that the plaintiffs other than ExpressVu have received. Once again, I conclude that that possibility goes to quantum of loss or damage and not to the issue of whether the other plaintiffs have suffered some loss or damage. I conclude that the evidence before me demonstrates that they have and that they will continue to do so in the absence of a dramatic change in circumstances.
CONCLUSION
In the result then, I conclude that each of the plaintiffs has a right of civil action under section 18 of the Radiocommunication Act against Norsat. The issue of the remedies available to the plaintiffs and quantum of damages, if any, available to them was not argued before me and was not relevant for the limited purposes of Norsat's motion for summary judgment. I conclude that Norsat's motion for summary judgment, as it relates to the claims of the plaintiffs under section 18 of the Radiocommunication Act, must be dismissed. An order will go accordingly with costs to the plaintiffs against the defendant Norsat.
A similar motion on behalf of the defendant A.C.E. Imports International Inc. was not argued before me. That motion remains outstanding.
There is also outstanding before the Court a motion on behalf of the plaintiffs for "an interim and permanent injunction", other reliefs and for "summary judgment on all or part of the claim in the Statement of Claim on behalf of one or more plaintiffs as against one or more Defendants". The plaintiffs' motion also was not argued before me. That notwithstanding, to the extent of the claims of each of the plaintiffs based on section 18 of the Radiocommunication Act , and on the basis of the evidence that was before me, the result of the plaintiffs' motion for summary judgment would appear to be self evident on the basis of these reasons.
1 R.S.C., 1985, c. R-2 (as am. by S.C. 1989, c. 17, s. 2; 1991, c. 11, s. 85).
2 [1989] 1 S.C.R. 927, at pp. 968-971 and 975-977.
3 S.C. 1991, c. 11.
4 [1997] A.J. No. 513 (Prov. Ct.) (QL).
5 See, for ex: R. v. Ereiser (1997), 156 Sask. R. 71 (Q.B.), per Klebuc J.