HITEC, We are ready to hear about CANAM HERE!!!

[To The Real King!!]

Hi Hitec,

As our designated reporter we are all anxious to get your report today on the CanAm case. I realize it will be awhile as you are on Pacific time.

Please submit your report on the Canam case here. We are VERY anxious to hear how it went because about 7 or 8 cases in Eastern Canada are awaiting rulings and these judges are waiting for the CanAm ruling as guidance in their decisions.

If the CanAm ruling goes our way, it will be the HIGHEST Canadian authority on the Interpretation. If we lose in Canam SOME of the cases may still be won but if we WIN then they will almost SURELY all win.

So its pretty important to the entire industry.

I will report on my case here in the same forum in a few moments but it went VERY well :)

Thanks,

To The REAL King!!
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[sgt. shultz]

Does anyone know the trial times and where the courtroom is for this case. I wouldn't mine seeing this one.

[M_DeRuKe]

TTRK, I won't go into a big explaination, but I'll go over the gist of things.
The Judges were a male and 2 females. One of the female judges was only put on the case this morning and wasnt familiar with the case. The male judge seemed to me that he read and understood that the true interpretation only applied to Canadian broadcasters and he seems like he will see in our favour. One of the female judges seems to see things from both views, but being 50+ and not really understanding how tv/satellites work made things harder for her to understand, whereas Brenner seemed to be able to follow along A LOT better. That Judge made some funny comments a few times, about McKenzie, and his Ontario ways. 10 seconds in she told him sternly, "In B.C. we don't say 'good morning'". Exvu had 4 volumes for their factum with several hundred pages in each volume. They had to keep switching volumes, flipping pages, reading quotes, etc. Can-Am had a small, very direct, straight at the issues factum.

They let McKenzie ramble for 2 hours, a lot of it was just ranting, and not making a fluent case. He succeded in making a mess of things, and in my opinion, confusing the 2 lady Judges. The Judge that was assigned to the case this morning had difficulty understanding our defence, and didn't see that this ONLY applied to AUTHORIZED signal providers, and McKenzie kept on harping on how DTV and Echostar are NOT authorized!

I think the 2 female Judges will understand better Can-Ams defence once they look at all the information provided to them because they will see what is relavant and what isn't, what McKenzie has to prove, and the interpretation of 9(1)c. I'm hoping the male Judge can point out WHY Can-Am is right and McKenzie is wrong. One of the female Judges respects the Federal Court of Appeals decision if the facts are the same and said she has to rule that way if the facts are the same or that Judge errored in his judgement.

In the end, we're waiting on a Reserved Judgement which could take quite a while. My guess, 2 months! The Judges didn't really talk about Brenner too much, which disappointed me.

It's hard to judge what way the 3 judges will go, but I assume that they will see more of the light when reading the things that matters and not ranting and crap filling by McKenzie.


I don't have the names of the 3 Judges right now, thats why I refer to them as the 1 male and 2 female Judges. GS2 should be able to provide the names, if not, I'll find out.

[To The Real King!!]

Hi Mike,

Yes I just got off the phone with GS2 and he is quite a bit less optimistic. He thinks it went quite badly but I will let him make a complete report when he gets back. MR. D with him didn’t feel it was quite so bad, but he was not positive either.

From what I gather McKenzie was on rare form and dominated the speaking whereas Richard Peck made no direct replies (does not have the satellite experience possibly) to what McKenzie said.

Mike to correct you on the factum, I have McKenzies factum and Richard Pecks factums and have had them for over a week. What McKenzie was referring to was NOT his factum but rather his “BOOK OF AUTHORITIES” which has all the Jurisprudence he referred to such as the Norsat II case. It was NOT his factum which is about 15 to 20 pages.

Richard Pecks factum is MUCH better and to the issue than McKenzies is. McKenzies rambles and talks about copyright and other issues that the Appeals court acceptance DID NOT ALLOW.

Being an optimist, I will tell you that these Judges, especially the females who did not appear to have read the factums (and the one who was appointed as a replacement only this AM when the other Judge called in sick) will ABSOLUTELY have to do so before giving a written ruling. They will also have to look at the Appeals court document that OUTLINES what BASIS this debate can be argued on. What it permits and what it does NOT permit. They SHOULD have done that BEFORE the hearing but obviously did not. But they WILL have to.

When they discover that Copyright and other issues was NOT ALLOWED to be an issue and this was SUPPOSED to be ONLY on the narrow issue of the interpretation of the RC Act, they may be obliged by the interpretation Act (which sets the rules for Judges) to IGNORE all of what McKenzie said that was NOT about the interpretation.

I have often seen Judges let someone go on things that are not valid issues but then IGNORE what was said in their ruling, making that a total waste of time. I am surprised that an appeals court would do that as their time is considered too valuable and they usually tell the lawyer to forget that, its not at issue here. Possibly the didn’t yet read that document.

But this panel seems to have been extraordinarily NOT prepared and they may NOT have even not KNOWN what issues were to be argued.

But fortunately the law forbids them from considering non valid (non allowed) issues and judges are used to this. To NOT considering the part of the evidence that they are disallowed from hearing. That happens in almost every trial.

In my trial for instance, one witness kept on calling it a card programmed for “theft of communication” instead of programmed for “reception of a signal” when in fact that is THE ruling the Judge was there to make (illegal or legal). When my lawyers eventually objected to the word “theft” the judge unhesitatingly stated. “ I know who this witness is. He is NOT an independent witness and he is here to make the case for his employer, a supposed victim. Every time he says things like that, I STOP LISTENING. So Mr. La Leggia (one of my lawyers or my wifes lawyer) please do NOT worry about his improper terminology as I simply close my ears, stop listening and don’t hear it.

Now that is what the Judge said so I am sure that these judges will look up what the HAVE to rule on and MUST ignore the rest. They know that this will go to the SUPREME COURT OF CANADA and they do NOT want to be overturned on improper procedure. Similarly they MUST read the factums as they contain valid argument that the Judges MUST consider no matter what the lawyers said in court today. If the factum points are relevant and important then they MUST consider them and Richard Peck ‘s factum is a dynamite one.

So I am not as negative as the others such as GS2 and Mr. D but I am an optimist and am more involved with legal issues. They CERTAINLY have a better feel for how it went (in court) having attended. It seems overall like its a toss up. Could go either way and its sure not the slam dunk that was expected.

That’s pretty worrisome for the least.

What Richard Peck may not realize is that if we lose, WHO is going to pay to take it to the Supreme Court. All the donators are dependent on a win HERE to stay in business. If its a win then YES the money to go to the Supreme court can and will be raised BUT if its a loss then GS2, Mr. D, myself and many others WILL NOT be in business TO FINANCE IT. So many cases are dependent upon this ruling that none of us will have our money to finance anything in that case if its not won NOW.

I just hope that that these judges follow the rules because more money to litigate that will KILL us. There is a limit to the abilities of ALL of us and “justice delayed“ too long will be “justice denied” here by excessive litigation of every small issue!!!

Everything has been done that CAN be done so all that is left is for us to PRAY and hope!!

I am sure GS2 will have a much better blow by blow tomorrow.


Thanks,

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[M_DeRuKe]

Thanks for your correction re: McKenzie's factum. In Peck's factum, weren't quotes used IN the paragraphs that were facts, as opposed to, 'Volume 1, page 6, lines 4', etc?

I'm more optimistic than GS2 and right up there with you. I don't really see how anyone can interpret the law like McKenzie. Lawful distributor is defined perfectly as the authorized Canadian provider... for them to interpret it the way as McKenzie, you'd have to jump through hoops and cross t's that aren't supposed to be crossed. The TRUE interpretation seems very clear.

We both can guess what would happen to the industry if the appeal was overturned and went straight to Ottawa. But, if it went back to Brenner I'm sure he'd set things straight as HE knows the law.

[gunsmoke2]

I just got home and am very tired.. so can't give a full report now..

Mike,

Your own lawyers ( Peck ) are quoted as saying:

CAUTOUSLY Optomistic... What does that mean..it means they are hopeing.. thats it..nothing more.. just hopeing..

They are talking about a split decision.. two to one.. and are hopeing.. thats it.. it can go either way.. they already said minutes after the hearing:

It has to go to the supreme court in Ottawa.. so if we lose it had to go there anyway.. does that sound positive talking to you.?

I am realistic and yes was born to worry.. but have attended a few cases and can get a feel on whats going on.. thats why I flew there at my own expense.. to see and hear with my own eyes.. ears..

Mr D. was also very concerned.. and at one point turned to me and said he thought the case was lost.. he btw feels its 60/40 you lost.. the same as me.. two different people at the same hearing with some experienced.. same gut feelings.. the only difference is I am more emotional about it..

Its very clear you have once judge totally against you.. there is no question about it.. even your own lawyers will tell you that..

You have one judge ( the male) who appears to be on your side.. he hardly spoke at all but gave McPuke some hard questions to answer.. this judge it would appear had read the facts ( factum ) before the hearing..

The main judge is unperdictable.. no one has a clue which way she will go.. she went back and forth.. sometimes on your side.. sometimes on their side..

This judge is a loose cannon.. she was on the panel of judges on the child porn case and Peck was sure she was against him.. but big surprise to him.. she went with him..

Which way will she go.. will the male judge influence her or will the female judge influence her.. that will most likely be the deciding factor..

She also did not read the factums.. apparently she never does until after..

Because of not reading the factums I will call this a 50/50 btw that is same for Mr D.

McPuke was arrogrant and confident when he first came out on the first hearing.. expected a rubber stamp.. he was not prepared properly..

However he did not make that same mistake again.. yes if it was decided on who the judges like better.. which lawyer .. then you would win hands down.. but they will not be deciding on a popularity contest..

McPuke was able to law out a very manipulative persusion of his idea on the factors that have to be used in condidering the interpretation of the RC Act.. his factors are used as interpretive tools in deciding the interpretation.. the technical compliance of the equipment according to the standards of Industry Canada.. The license required by the CRTC.. and copyright infringement..

The fact he was able to lay this down along with his definitions ( such as a lawful distributor ) was very effective..

Only at the end did the main judge say that copyright was not an issue.. but the fact remains he got them to listen to his plan.. and they never stop him.. and he didn't care that the judge said that copyright is not an issue because he scored brownie points where he shouldn't have..but he did..

The judges have a problem with not being approved by the CRTC.. and bought into his arguement how can it be right or fair that his client goes through the proper procedules and the others don't.. why doesn't Echo just do the same the judges ask.. they ask if everything is fine why do you have to provide a fake address.. if you are not a lawful distributer than you must be an unlawful distributer they said.. why did they say and asked these questions if they thought that McPuke was full of kaka.. if they did they would have just said so.. like they did in the previous case heard before yours.. do you rember.. one lawyer didn't even have to speak.. the same judges threw it out and ruled right on the spot..

Peck did the best he could on what he knew.. but he couldn't rebuttal well on what he didn't know.. he was prepared to only debate a narrow arguement on the interpretation.. thats what was suppose to happen except in law and in trial it doesn't always happen the way it is suppose to.. otherwise you wouldn't have won in the first place..

The technical complaince is irrelevent.. but Peck never rebuttal it as I assume he simply was not aware of what this meant.. this came up in my trial but my lawyers were well prepared for it and my judge didn't consider it..

Peck unfortunately did not rebuutal well on why the US companies do not apply for a licence by the CRTC.. because they are not Canadian and there is a foreign ownership issue that unfortunatly Peck missed out on completely..

He was ask what you were.. Peck said you were facilotators.. that didn't come off too well as it played right into McPuke who said you aided and abeited with the US suppliers in breaking Canadian law..

The judges were not keen on Hansert's report.. they were divided on the charter whether there was an expressed right or not.. fortunately the main judge thought there was.. but McPuke was quick to point out the judge's opinion on the Spot case where he would not even consider a charter arguement.. he was quick to point out that there can not be an expressed right if the provider did not want you have that signal..it was not intended for you..

I was suprised because I thought that with Peck's experienced on charter issues he didn't respond as well as I thought he could have..

McPuke spoke well over two hours.. if the judges didn't buy into his arguements then he would have never got that far.. Peck spoke for 45 minutes at best..

For some unknown reason Peck turned it back to McPuke with 15 minutes to go.. why.. he gave McPuke a silver spoon to get in his last rebuttals..

McPuke captured the judges in spite of his arrogrant behaviour.. in fact he convinced one judge that the Norsat case in Federal court of appeals was the same set of circumstances.. do you remember what this judge said..

She said then she was bound by that court to rule the same.

This is going to be very close.. not sure if they are on total prohibition or not.. certainly one judge is..

Also they agree the act is not to errect barriers.. you simply come and apply for a license from the CRTC and broadcast....

I want you to win so badly.. because if you loose there is no Ottawa in supreme court in 2001.. something Mr Peck simply does not understand.. there will not be any one around by then.. the industry will be finished.. you lose.. then if I lose.. then I am finished along with many others..

Believe me I am hopeing and praying on this one..its true they need to read the factums.. that is the real only hope of winning.. the oral arguements are over..

Mike.. if you lose its agreed that there will be a PERMANENT injunction against Cam-Am.. are you aware of that?

Hitec,

Sorry but there simply is no excuse for not showing up.. thats twice now.. if they stop DSS machines and access cards from entering Canada.. what are the prospects of carrying out any type of a Satellite buiness.. it doesn't seem that Canadians really give a s h i t if they can't show up for support in the most important hearing in the industry that will decide the future.

GS2

[To The Real King!!]

Hi Everyone,

One thing to remember is that this seems like it will be a split decision 2 to 1 or 1 to 2 no matter what. It seems unlikely that it will be unanimous.

When that happens I understand that it is automatically accepted by the Supreme court no matter if overturned or ratified.

That could be interesting if I am right. But the issue is WHO will finance it if we lose at this stage as no boody will be left in business.

Mike,

Hopefully Mr. Pecks factum was all FACTS which is why its called a FACT um. :)

The Book of authorities contains the Court Rulings that back up those facts and shows that they are true. A good Book of A points to the exact page and paragraph that is pertinent, although lazy lawyers usually don’t do that :)

The 'Volume 1, page 6, lines 4', etc? shows WHERE in the BOOK of Authorities” to look for the relevant sections and is a very good way to do this. The easier you make it for the judges, the better for YOU.

I just finished presenting 5 Books of Authorities in the Gregory case in Montreal and I downloaded all the rulings in electronic form so that I could get perfect printouts. Often, judges get shuteye photostats of photostats which are hardly readable (the crown does this) and I am sure the Judge says “screw it, I cant read that”. So it is very worthwhile to go the extra mile and take 3 days to do this properly. The one I did took me and a friend 3 days to do with over 1500 perfect pages of rulings and cross references to the places that are important. I am a perfectionist however, but it sure cant hurt.

I have 2 more of these to do in the next few weeks for “Drummondville” and myself and you can be sure that they are perfect, beautiful bindings and perfect tabs etc.

We wont lose for lack of effort, I promise that.

As this is now in public record, I can post it here (Mr. Pecks factum) if nobody cares.

Please let me know as I think everyone would find it interesting.

Let me know and please DO NOT FORGET that I am expecting Richard to fax me a document of agreement at 1-450-451-6477.

Mike please make sure that this is done tomorrow as it is very important. I am sure you know what doc I mean :)

Here is MR. Pecks list of Book of Authority titles, to demonstrate what I mean



PART V

LIST OF AUTHORITIES

PAGE

CASES

Canada v. Mossop (1993), 100 D.L.R. (4th) 658 (S.C.C.) 18

C.B.C. v. New Brunswick (Attorney General), (1996) 3 S.C.R. 480 20, 23

Committee for the Commonwealth of Canada v. Canada, 19, 22
(1991) 1 S.C.R. 139

ExpressVu Inc. v. NII International Inc., (1996) 1 F.C. 245 (T.D.) 18, 21

ExpressVu Inc. v. NII International Inc., (1997) F.C.J. No. 1563 18
(Q.L.) (C.A.)

Haida Nation v. British Columbia (Minister of Forests) (1977), 6
153 D.L.R. (4th) 1 (B.C.C.A.)

Irwin Toy v. Quebec, (1989) 1 S.C.R. 927 19, 20

Marcotte v. Deputy Attorney General of Canada (1976), 9
19 C.C.C. 92D) 257 (S.C.C.)

Ramsden v. Peterborough, (1993) 2 S.C.R. 1084 19, 20, 22

R. v. Biniaris, (2000) S.C.J. No. 16 (Q.L.) 5

R. v. Ereiser, (1997) S.J. No. 276 (Q.L.) (Q.B.) 14, 15

R. v. Gladue, (1999), 133 C.C.C. (3d) 385 (S.C.C.) 10

R. v. LeBlanc, (1997) N.S.J. No. 476 (Q.L.) (S.C.) 10,14,15,18,19

R. v. Love, (1997) M.J. No. 109 (Q.L.) (Q.B.) 8, 14, 15

R. v. McIntosh, (1995), 95 C.C.C. (3d) 481 (S.C.C.) 9

R. v. Mills, (2000), 139 C.C.C. (3d) 321 (S.C.C.) 17, 18

R. v. Multiform Manufacturing Co., (1990), 58 C.C.C. 6
(3d) 257 (S.C.C.)

R.J.R. v. MacDonald (1995), 100 C.C.C. (3d) 449 (S.C.C.) 23

Rizzo & Rizzo Shoes Ltd. (Re), (1998) 1 S.C.R. 27 5, 6


STATUTES AND PARLIAMENTARY DEBATES

Commons Debates, July 19, 1988 11

Commons Debates, September 19, 1988 11, 12

Commons Debates, September 27, 1988 12

Commons Debates, December 4, 1990 13

Copyright Act, R.S.C. 1985, c. C-42 (as amended) 16

Radiocommunication Act, R.S.C. 1985, c. R-2 4-24

AUTHORS

Hogg, Peter, Constitutional Law of Canada 4th ed. 19
(Toronto: Carswell, 1996)




The “commons debates” are quoted out of Hansard, a standard tool for Judges and lawyers in book form. These are mostly all standard rulings and are mostly presented in every case.


Well I hope GS2 is wrong and I know he hopes that too but I have to defer to him as he WAS there. Spent a bundle to fly out there because this ruling is so important and he wanted to assess it himself.

The only positive thing is that court rulings are HARDER to call than football games and Appeals judges are USUALLY pretty “LAWFUL” themselves and when they discover that McKenzie argued a lot of issues THEY ARE NOT SUPPOSED TO CONSIDER (according to the document for the GROUNDS of Appeal) they may simply ignore all of that. If they DO NOT IGNORE that, them in the written ruling then Mr. Peck will have some very important issues to use in having THIS decision overturned, if it goes against him. I am not sure of what THAT procedure is But I will find out tomorrow.

Also in the EAST it is very unusual (virtually unheard of) for Appeals Judges not to have become completely informed on the Grounds for the appeal, the Factums on both sides and all the issues in an Appeal case. They usually DO NOT allow a lawyer to ramble about NON-issues in THIS appeal. They cut him short. They didn’t seem to have done any of that. You guys in BC sure do “march to the beat of a different drummer” :)

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