TTRK Court today --One of those DREAM days in court!!!

[To The Real King!!]

Hi Everyone,

Well today was one of those rare DREAM DAYS in court.

The main RCMP witness (who we hadn’t cross examined yet) made several important admissions.

Firstly he admitted that the Receiver/dish/lnb is sold to the public WITH an Access Card and that this card is the property of the buyer of the IRD system. When he said this the Judge had a VERY puzzled look on his face and was writing with a fury normally not seen. Why the puzzled look? Well if I had to interpret that look, I would say that it said “Why the hell did you wait till the last day to make that admission when all along you have been trying to show that they belong to NDS.“

And if that’s not what the Judge was thinking, it sure as hell was on everyone else's mind. The Interpreters (french to English for my wife) thought that as did several other folks who have been here throughout the proceedings.

Then this RCMP investigator said that the seized documents at Mr. Scullions that revealed that the Access cards were purchased by Mr. Scullion from Mr. XXX who is the SAME MR. XXX that bought them from DTV in New York state. His company XXX.Co has an office in New York state and is based in Ontario, Canada. Not only did Mr. Scullion buy them from him but they were paid for in full and invoices submitted to this court indicated that they were originally bought and paid for from DirecTV. This information came from emails on Mr. Scullions computer to Mr. XXX where Mr. Scullion mentioned buying over one MILLION dollars worth of Access cards and additionally from his company books and records where the amount of each purchase in dollars, the number of cards purchased and the Check number, the Draft number or the amount of dollars paid was mentioned and recorded.

This literally BLEW the judge away to find out that all this was KNOWN by the prosecution, yet they tried to show through other witnesses that the cards belonged to NDS. How can the CROWN say both of these things when they KNOW for SURE that the cards were bought and paid for properly? Again more furious writing of notes by the Judge.

Well now comes the GOOD PART :)

As my wife and I are charged with almost 100 CRIMES (yup 100 crimes for apparently programming TV access cards) we have never been able to figure out which part of the evidence represented which essential element of each apparent crime or charge among the almost 100.

To explain this, each crime has several elements to it under the Criminal code. For instance if you are charged with theft of telecommunications, an essential element, each of which MUST be proven, is that (1) you programmed or sold an Access card or device. (2) That access card was sold under a reasonable inference that it was to be used to steal the a signal (3) That the signal belongs to a lawful distributor in Canada (4) that there is a LINK or nexus (which is the crowns burden to show) between the alleged “theft” and the lawful distributors LAWFUL RIGHT to collect a fee. (Supreme court ruling R v. Fulop). If he could not lawfully collect a fee, there is no theft. If he is NOT a lawful distributor, then there can be no “lawful charge”.
(5) That you did the act (the person charged). (6) that that person INTENDED to break the law with the selling of the card. (7) That the seller has no lawful excuse.
And so on. All of the essential elements of a crime must be shown in order for a defendant to be convicted.

Well we have NEVER understood WHICH elements of the evidence went to prove an essential element of which alledged crime. Pretty damn complicated when there are almost 100 charges, most of which are NOT for the substantive “crimes” but are proceeds of crime charges. However its always good to prove a crime when you allege “proceeds of crime” :)

So what happened? Well the Judge ordered and the Lawyers and crown agreed that the rest of the case (final arguments) be pleaded in WRITING. This is fantastic as the crown now must attach each element of PROOF or evidence, with an essential element of a crime and tell us how these relate to each other.

Because this will be done in writing by June 22, we will for the first time (a) understand what the charges really allege was done and (2) Show where in the crowns opinion, the proof contains the essential elements of EACH of the alleged crimes. In other words we will now know what they are saying and they WILL HAVE TO STICK TO THAT.

So far they have been very slimy and slippery, changing things when elements they thought were proof, turned bad and were shown to NOT be true. Now they will have to LIVE with what it is they state.

Now, once their argument is in, they can NO LONGER change what it is that they CLAIM.

Secondly we have until July 14 to RESPOND in writing to what they allege the proof shows. And we can point to the transcripts by page and refer to the exact statements of the witness if it isin’t proved. All that will be left then is for the Judge to decide WHO has stated the evidence correctly and if all of the essential elements of each crime have been proven for both myself and for my wife who will submit a similar response as it related to HER. If we do not agree, we can point out why and what elements are missing.

Best of all is that the Judge has set the timetable for a RULING and will rule on the issue on August 25.

So far, getting beyond their delays has been one of our biggest problems. Now the judge has put END to this constant delay and HE has given the timetable of dates by which he expects the crowns argument, the Defendants reply and the date he will RULE. I doubt seriously that he will give ANY delays and everyone has agreed to these dates.

I couldn’t possibly be more happy. Firstly I will find out about some of their sillier allegations and what it is they are claiming. Secondly they wont be able to change their storey after this is in. Third and most important is that the Crown prosecutors substitute, In my opinion is a ramblings type who goes on and on and ON. The Judge has indicated he doesn’t expect more than 50 pages. In my opinion she will need 300 pages and still wont be able to justify her position.

Most important of all is that Mr. Ian Angus who will pull my arguments together in the final draft is this type of person. He will write you a long letter and apologize by saying "SORRY FOR WRITING SUCH A LONG LETTER, BUT I DIDN’T HAVE TIME FOR A SHORT ONE.”

Now if you THINK about that it DOES make sense. It takes MUCH more time to write a precise, concise and punchy, hard hitting submission to the judge than it does to write a long rambling one where you try to say all that can be said, and a little more. That’s the crowns type and the judge wont be impressed. He was there too :).

I am sure that our reply (mostly already written) will be less than 20 pages, hard hitting but concise and utterly convincing. Mr. Ian Angus stands a mile taller than any other lawyer I know when it comes to his written submissions, especially when you understand the criteria.

I am also pretty sure that the Crowns will compete with the “US library of congress“ when it comes to size and I wont comment on quality.

While some of this may seem very obscure to some of you, believe me it AIN’T. Its absolutely the best thing that could have happened and I was concerned from the very start of this proceeding, that this IMPORTANT written summation might not be done. And now its the ONLY summation there will be :) :) http://www.dr7.com/temp/ttrk/smiletongue.gif
(third Smile for them).

I am ONE HAPPY CAMPER today!!!


Thanks,

To The REAL King!!
-----------------------
Freedom has nothing to fear from the truth!

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Now open with lots of useful resources at your disposal AT:
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[seed]

Sounds good, TTRK.

Could you describe how an admission that an access card is the property of the purchaser helps you? I would think that it would, but I'm curious what you can do with it.

Does it change the legality of "(1) you programmed or sold an Access card or device"? Surely programming an access card to perform as a calculator and even selling that modified card would be legal if you are the owner? Would it be illegal to even store a program that was capable of 'stealing' a signal, even if it could not be run without further programming or owner action? Could you use the card to store a calculator program, but not a program that could allow you to receive all channels?

Does the admission of ownership affect "(2) That access card was sold under a reasonable inference that it was to be used to steal the a signal" at all?

Thanks,
Seed

[To The Real King!!]

Hi Seed,

Actually we are charged with “receiving stolen goods” which charge related to the cards which the crown tries to say are the property of NDS due to the “prima facie” evidence of that. The fact that this is written on the card is only “ prima facie” or “on the face” evidence and that is defeated by evidence to the contrary. Its a little like a ticket given in a parking lot that says “not responsible for damage to your car” or a restaurant ticket that says they are not responsible for your coat in their “cloak room”.

Both of these are WRONG and they are responsible for your property no matter what the ticket says.

On top of this we are charged with “counterfeiting a document” which is the card (which is a chameleon) because we are also charged with “defrauding a computer” which is also the card in its other life when it becomes a computer :)

So , as you can imagine, all three of these charges are dependent on the CARDS being someone else’s property. If, in fact, they are your own property then all 3 charges are BOGUS (as they are) because you are entitled to “hit then with a hammer“ or ”chop them into pieces with an Axe” if they are yours. Can you imagine being charged with Counterfeiting your computer by programming it or to tampering with it for the purpose of theft by programming a card? Foolishness and it certainly cannot be stolen property if you bought and paid for it (and have the invoices to boot. Its also interesting that if they are NDS’s cards, how did DTV get them to sell? That tidbit remains unexplained as the NDS “expert“ didn’t know the answer and was given months to find out but never did :). That does NOT surprize me as they DO NOT want answers to come out of these miraculous transactions. Like how does RCA get them and WHO do they buy them from. Also unanswered by the purported “victim” DirecTv.

Seed we cannot steal a DSS signal in Canada because the Supreme Court of Canada (in R. v Fulop) has said that their MUST be a nexis or link between the apparent “theft” and the ability of the programmer to receive a lawful charge for the signal” and that this is a crown burden to prove. Well as DTV are NOT a lawful distributor in Canada (having a Canadian issued License by the CRTC) then they CANNOT charge a lawful fee so quite simply this LINK cannot be made.

Here is an example of our “generic” written argument pertaining to this. It requires a lot of reading but defines only ONE of our arguments that the LAW itself is unconstitutional because it erects a total prohibition to receiving of expression under section 2B of our Charter of Rights and Freedoms. Please remember that this is just ONE of several valid arguments we have that attack the law. But the short answer to your question is that Canadians are a “free people” and cannot be prevented from receiving an International signal when no theft is committed. To create “theft” you have to remove a property for which the owner could receive a revenue, thus depriving him of that revenue. If you ABANDON a signal (or your kids old 3 wheeled wagon on the trash heap) you cannot later assert ownership in it having already abandoned it. So if your neighbor takes the abandoned wagon from your trash at the roadside, you CANNOT assert “theft” for his actions. It ain’t yours anymore.



{Please note that this is a generic version of an Applicants REPLY that was filed in the defence of a defendent in a court in Quebec and so is now in the public record. There are certain parts that are missing as they could identify the defendents which I prefer NOT to do. I submitted this for these defendants a few days ago. TTRK!!}

The Prohibition created by s. 9(1)(c) and 10(1)(b)


1. It is the Crown’s position that s. 9(1)(c) and 10(1)(b) of the RC Act create an absolute prohibition against the decoding of encrypted programming signals, except as authorized by a "lawful distributor" in Canada, and otherwise not at all. In other words, the legislation does not simply protect the privileges granted by the lawful distributor’s license (i.e. by providing protection against signal piracy), it also prevents consumers from obtaining subscriptions to signals that originate in the U.S. or Internationally but are not authorized for distribution in Canada by the CRTC (ExpressVu Inc. v. NII Norsat Int. Inc, (1998) 1 F.C. 245, aff‚d).


Application of the Charter

2. There is no serious question about the Charter’s application, as the RC Act is clearly subject to the Charter. It is also clear that regulatory agencies, such as the CRTC exercising coercive authority conferred by statute are likewise bound by the Charter.

It is well established that an agency cannot exercise its discretion in a way that violates the Charter (Slaight Communications v. Davidson (1989) 1 SCR 1038).



3. The RC Act violates the expressive freedom of International or U.S. program suppliers who are prohibited from making their signals available to Canadian consumers by the operation of s. 9(1)(c) and 10(1)(b).


4. The RC Act violates the expressive freedom of Canadian vendors who engage in a variety of activities specifically targeted by s.10(1)(b) and can be punished for facilitating consumer access to U.S. program services and enabling Canadians to bypass the RC Act’s scheme for restricting access to programming to those who are "lawful distributors".


5. The RC Act violates the expressive freedom of would be Canadian purchasers of satellite dishes. The infringement is that individuals who would otherwise be free to purchase a satellite dish and subscription packages are prevented from doing so, both directly and indirectly - by the operation of s. 9(1)(c) and 10 (1)(b).

Their entitlement is as listeners, recipients and consumers, rather than as speakers. All that they need show is that there has been an interference with "the attempt to convey meaning" (Irwin Toy v. A.G. Quebec, (1989) 1 SCR 927).

6. A package of subscription services unquestionably constitutes an attempt to convey meaning. Legislation that prohibits the decoding of signals broadcast to the public which carry a package of meaning unquestionably interferes with the program suppliers attempt to convey meaning and the Canadian consumers attempt to receive it.



Validity of The Claim Under s. 2(b)


7. The permissibility of limits on expressive freedom is to be decided under s. 1 of the Charter. All that the analysis of a breach of s. 2(b) requires is a showing that there is an interference with the attempt to convey meaning.


8. It is well established that s. 2(b) of the Charter protects the rights of listeners and consumers. In Ford v. A.G. Quebec, [1988] 2 SCR 712, the Supreme Court of Canada acknowledged that commercial expression has "intrinsic value", and held that s. 2(b) protects that interests of listeners as well as speakers, because expression "plays a significant role in enabling individuals to make informed economic choices, an important aspect of individual self-fulfillment and personal autonomy." [at 767] Subsequently, in Rocket v. Royal College of Dental Surgeons and Physicians, [1990] 2 SCR 232, the Court invalidated near-absolute restrictions on advertising by dentists; in doing so it stated that "expression of this kind does serve an important public interest", and that „expression plays an important role in consumer choice" [at 247]. Then R.J.R. MacDonald v. A.G. Canada,[1995] 3 S.C.R. 199 found that the federal government’s absolute prohibition on tobacco advertising violated s. 2(b) and failed under s. 1, because consumers were denied "an important means of learning about product availability to suit their preferences and compare brand content" [at 343]. Most recently, Thomson Newspapers v. A.G. Canada, [1998] 1S.C.R. 877 invalidated an opinion poll blackout in the final 72 hours of a federal election; in doing so Bastarache J. stated that the Canadian voter is a "rational actor" whose access to important information could not be denied on grounds that polls might be misleading or unduly influential.


The Analogy Between a Bookstore and a Dealer in Satellite Receivers


9. In each case a bookseller and a satellite dealer forge a link between the speaker (i.e. author/publisher/program provider) and the listener. It is irrelevant that the bookseller/dealer may not engage in primary expressive activity, because the relationship of exchange between speaker and listener is protected in and of itself. In any event the bookstore/dealer has a s. 2(b) protection in its own right, as a matter of protected commercial expression (Little Sisters Book and Art Emporium et al v. Canada (Minister of Justice) (1998) 125 C.C.C. (3d) 484).



10. When a bookstore is charged under the Criminal Code provision for obscenity, there is a breach of expressive freedom and s. 2(b) of the Charter unquestionably applies (see R. v. Butler [1992] 1 S.C.R. 452). When magazines, books, or videos are seized at the border pursuant to provisions of the customs legislation, there is likewise a breach of expressive freedom and s. 2(b) of the Charter applies once again (see Little Sisters‚ Book and Art Emporium, supra).



11. By the same token, s. 9(1)(c) invokes s. 2(b) of the Charter because there is a breach of expressive freedom when the legislative process interposes itself between the speaker and the listener.




Speakers and Listeners


12. There is no question that speakers are protected by s. 2(b) of the Charter. There is also no question that the listeners‚ rights are protected by s. 2(b) of the Charter.



13. There is no question that program subscriptions attempt to convey meaning and are protected by s. 2(b) under the test set out in Irwin Toy v. A. G. Canada.


14. These defendants are unquestionably listeners and are unquestionably interested in expressive materials.


Interference with the Intent to Convey Meaning



15. The Irwin Toy Test is set out at page 978 of the SCR report:


When faced with an alleged violation of the guarantee of freedom of expression, the first step in the analysis is to determine whether the activity falls within the sphere of conduct protected by the guarantee. Activity which (1) does not convey or attempt to convey a meaning, and thus has no content of expression or (2) which conveys a meaning but through a violent form of expression, is not within the protected sphere of conduct.


If the activity falls within the protected sphere of conduct, he second step in the analysis is to determine whether the purpose or effect of the government action in issue was to restrict freedom of expression. If the government has aimed to control attempts to convey a meaning either by directly restricting the content of expression or by restricting a form of expression tied to content, its purpose trenches upon the guarantee. If the government’s purpose was not to restrict free expression, the plaintiff can still claim that the effect of the government‚s action was to restrict her expression.



The first step of the Test in Irwin Toy:


- was the activity within the sphere of conduct protected by freedom of expression?





16. Government legislation restricting an activity limits the guarantee only if the activity in issue was protected in the first place; however, if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee.



17. As long as the activity conveys or attempts to convey a meaning it doesn’t matter if the expression is of a public or commercial nature:


"there is no sound basis on which to exclude commercial expression, as a category of expression, from the sphere of activity protected by s. 2(b) of the
Canadian Charter" (Irwin Toy at p. 967)


18. It is not necessary to consider whether the Programming broadcast by a supplier of subscription programming services to the public is public or commercial expression, as both fall within the protected sphere of activity.


19. The nature of the expressive materials in this case which are regulated, and to which the listener can be denied complete access, fall squarely within the principles and values which underlie freedom of expression. The materials include programming, which includes language programming not otherwise available. These types of programs are not only essential to the core value of freedom of expression of "cultivating diversity in forms of individual self-fulfillment and flourishing" but also promote other Charter values. The StarChoice witness admits that 52 such channels provided by DirecTV alone are not available from a CRTC Licencee.

Section 27 of the Charter states:



This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.


20. A legislative provision which has the effect of making it impossible for an individual to receive certain programming pertaining to his or her language and culture, and for that matter any language and culture, violates freedom of expression in a profound manner.



The second step of the Irwin Toy test

Was the Purpose and Effect of Government action to restrict Freedom of Expression?


21. The court must decide whether the effect of the legislation enacted by the government is to control or restrict attempts to convey meaning, even if it wasn‚t the government‚s purpose.




22. In R. v Big M Drug Mart Ltd. (1985) 1 SCR 295 the Court noted (at pp 331-332):



"either an unconstitutional purpose or an unconstitutional effect can invalidate legislation"


23. As the government can almost always claim that its subjective purpose was to address some real or purported social need, the government’s purpose must be assessed from the standpoint of the guarantee in question. (Irwin Toy at p. 973)



24. If the government’s purpose is to restrict the content of expression by singling out particular meanings that are not to be conveyed, it necessarily limits the guarantee of free expression. (Irwin Toy at p.974)


25. If the government’s purpose is to restrict a form of expression in order to control access by others to the meaning being conveyed or to control the ability of the one conveying the meaning to do so, it also limits the guarantee.


The Covert Relationship Between Speaker and Listener


26. The fact that the Canadian consumer has a covert relationship with the foreign program provider cannot be raised against the Canadian consumer because the International or U.S. vendor is prevented by the law itself from acknowledging there is a contractual relationship. The RC Act, by making the U.S. vendor an unlawful distributor in Canada, prevents the U.S. vendor from selling its services to the Canadian consumer and from taking action against a Canadian consumer who does not pay them for the service.



27. To say that Canadian dealers or consumers have no claim for protection under s. 2(b) because the U.S. vendor won’t acknowledge them makes no sense if the law itself is the reason the relationship won’t be acknowledged.

In the absence of the law and the regulatory framework granting a monopoly to certain authorized distributors, the program providers, dealers, and consumers would be free to enter into whatever arrangements they wished.



28. Because of s. 9(1)(c) and the way in which the legislation has defined who cannot be a lawful distributor (as it is a requirement that a lawful distributor be a Canadian; no foreigners need apply), no unlawful distributor can admit they allow Canadians to subscribe.





A Canadian who wishes to obtain the signals of an unlawful distributor therefor has two choices:




(a) pretend he lives in the United States and arrange for authorization by giving false information about where he lives for basic services; or




(b) rely on the fact that the unlawful distributor is not permitted to charge a fee for his services in Canada, and use a receiving device that bypasses the need for authorization from the unlawful distributor for all services without telephone connection.



29. The RC Act doesn’t distinguish between these two ways ; the penalty of obtaining the U.S. service is the same for those who pay for it as for those who don’t. The defendants have chosen the latter way as their method of piercing the wall of prohibition erected by s. 9(1)(c).




Theft of Subscription Programming Signals



30. The Crown asserts (in paragraph 54) that unauthorized use of subscription programming signals has been made an offence under s. 327(1) "and is very correctly considered theft". This is correct only if the "theft"‚ is from a lawful distributor in Canada.



31. The RC Act has so restrictively defined who is legally entitled to collect a subscription fee that all other signals providers, be they Canadian or foreign have become unlawful distributors. Since only a lawful distributor can charge a subscription fee and unlawful distributors cannot, unlawful distributors are not protected by the Criminal Code section 327(1).



32. In fact the RC Act definition of lawful distributor eliminates the possibility of a foreign distributor charging a lawful fee, and since for s. 327(1) there must be a lawful fee that can be charged, receiving a subscription programming signal from a foreign distributor without payment cannot be a theft.








Broadcasts are Not Private Property



33. Section 9(1)(c) deals specifically with encrypted subscription programming signals.



A subscription programming signal is defined as a "radiocommunication" intended for reception by the public in Canada or elsewhere on payment of a subscription fee.




34. A subscription programming signal cannot be characterized as private property, and therefor not subject to protection by s. 2(b), although virtually all programs broadcast "to the public"‚ are privately owned but are broadcast over the "public airspace". As opposed to private communications which the owner desires to keep confidential, a program is broadcast "to the public"‚ and there is thus an open invitation for all to receive it at their own homes. The definition of a subscription programming signal requires that it is intended for reception "by the public in Canada or elsewhere". The listener who turns on his receiver is merely accepting the invitation.



The Barrier Between the Speaker and the Listener

35. There can be no question that television signals, have content that "attempts to convey meaning" and are prima facie within the scope of the guarantee. There can be no question that these signals are intended for reception by the public.



36. Section 9(1)(c) is a barrier between the listener and the speaker. This legislation erects a legislative wall that prohibits Canadians from having access to radiocommunication which is intended for reception by the public in Canada and elsewhere. Only the Canadian regulator can grant passage through this legislative wall.



37. These Defendants have breached that wall, and now are on trial for doing so.



Summary and Conclusion


38. The effect of the Crown’s interpretation of ss. 9 and 10 of the RC Act would be to regulate the manner in which one receives expressive materials, and more importantly to limit the ability of the individual to receive information which is not available through other means.



39. Further, by limiting access to the materials provided by authorized entities, the effect of the legislative provision is to violate freedom of expression by providing the government with control over what information is available to Canadians: see Canadian Broadcasting Corporation v. New Brunswick (Attorney General),(1996) 3 S.C.R. 480. The Crown’s interpretation of the legislation impacts the ability of individuals to receive certain information, and the ability of entities to make that information available to them. It is submitted that to ban Canadians from receiving mainstream programming from other countries which would not otherwise be available is wholly incompatible with a modern, democratic, and multicultural society.


40. The Crown submits that there could not be a Charter breach in this case because the context of the expression is private. It is submitted that such a submission entirely overlooks the fact that the forum in issue in this case is of an inherently public nature, that of airspace. The signals in this case are obtained from a non-private forum, that of public airspace. In this context, the circumstances of this case are analogous to Committee for the Commonwealth of Canada v. Canada, (1991) 1 S.C.R. 139 and Ramsden v. Peterborough, (1993) 2 S.C.R. 1084, where the Supreme Court of Canada held that restrictions on means of expression in public areas violated s. 2(b). Obtaining signals is compatible with the use of public space, and such use of the airspace in this case provides important information to members of the public; see Ramsden v. Peterborough, supra at p. 1103.


41. The Defendants respectfully submit that the circumstances of this case satisfy the test in Irwin Toy.. The Defendants activity is not excluded from the sphere of conduct protected by freedom of expression. The government’s purpose in enacting s. 9(1)(c) was to prohibit particular content of expression for the purpose of protecting the Canadian Broadcasting System. The effect of s. 9(1)(c) was to limit Canadians from receiving expressive meaning.


42. Section 9(1)(c) of the RC Act therefor trenches on the guarantee of freedom of expression given in s. 2(b) of the Charter as an infringement on that right.


43. It is further submitted that the infringement having been established, the Crown has not provided that the limitation can be justified through a Section 1 analysis, and is therefor not saved by the provisions of section 1.


As this may show, this matter is MUCH more complex than you might imagine on the surface and the legal arguments that are made to answer to the allegations of “theft” etc. are much more complex than this. In this case I submitted a “book of authorities” which consisted of 5 books, each over 3 INCHES thick and the total comprising some 1500 or so pages.

The issue that we are all awaiting in the CanAm case concerns the INTERPRETATION of the RC Act sections 9 (1) b and 10 (1) C which the court of “first instance” under Mr. Justice Donald Brenner already made at

http://www.legal-rights.org/rulings/canamruling.html

If this interpretation is UPHELD by the BC court of appeals at

http://www.courts.gov.bc.ca/Search/Queryhit.htm

then that interpretation already made will become the LAW in Canada. The Supreme Court of Canada (our TOP court) is likely to be asked to rule on that in the future and if they uphold it (which I expect them to) then it is IRREVERSIBLE LAW in Canada. The government would have to change the law and get parliaments approval to make it otherwise. Naturally NO GOVERNMENT in Canada is interested in showing Canadians they are NOT a free people and so that is EXTREMELY unlikely. In fact Shiela Finestone (an Ex-MNA) tried to pass an amendment like this in 1988 and parliament refused to ratify it, proving that prohibiting broadcasts was NEVER parliaments intent.

Defending against this has cost me well over $200,000.00 in Legal fees SO FAR and it ain’t over till the fat lady sings :)

Sorry for the long answer Seed, but you asked the question and with me your likely to get a complete answer when it comes to LAW :)


Thanks,

To The REAL King!!
-----------------------
[i]Freedom has nothing to fear from the truth!

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Now open with lots of useful resources at your disposal AT:
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[seed]

TTRK, hehe thanks for the response. I was wondering about your 'genuine counterfeit' post in the Hu forum and now I believe I see the connection. In thinking about your comments there, the property argument occurred to me. All that is owned by DTV is the signal and the intellectual property contained in the receiving device. Once you own the device you should be able to do with it as you please provided you don't do something illegal with it (like bludgeon someone with it).

Interesting to see the 'freedom of expression' part of the argument. Does everything ride on the 9(1)(c) interpretation? If 28(a) (of your posted argument) is deemed ok, is it likely that 28(b) will be ok also? Can 28(a) be deemed legal without a positive 9(1)(c) interpretation?


Thanks and good luck,
Seed

[To The Real King!!]

Hi Seed,

Here is the flow under Canadian law. I have bolded the relevant sections but that does not seem to stand out.


Section 52 The Constitution is the supreme law of Canada, and any law that is inconsistent with the provisions of the constitution is, to the extent of the inconsistency, of no force or effect.

Section 2. Everyone has the following fundamental freedoms:

(a)Freedom of conscience and religion;

(b)Freedom of thought, belief opinion and expression, including freedom of the press and other means of communication;

(c)Freedom of peaceful assembly; and

(d)Freedom of association.

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------------------------------------------------------------------------

THE INTERNATIONAL CONVENTION CIVIL AND POLITICAL RIGHTS (ICCPR)

-

Convention

-

Article 19

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public

So the 2B breach under the charter would strike 9 (1) c and 10 (1) b and make them of “no force or effect” if called on. It can ONLY be called on if a defendant is found GUILTY under that law therefore breaching his constitutional rights and the constitution act.

We also are a signatory to the International law known as the ICCPR and in fact our Charter of Rights and Freedoms was penned from this international law. Canadian law prohibits breaking International law and ( and 10 of the RC Act do break this International law) and so that is important too.

We believe that defendants CANNOT be found guilty because the Supreme Court of Canada (R v. Fulop) says it requires a LINK between the “alleged theft” or therefore the receiving of the DTV signal and the right of a lawful distributor to collect a lawful fee for that SIGNAL (not channel, not programming, not station). This link is a Crown burden (the Government must prove this as an essential element of the crime) and that is impossible as they (DTV) are NOT licensed to collect a lawful fee in Canada and therefore no theft can occur as they are NOT deprived of any revenue. Its the same as when I receive channel 5 in Poland Springs Maine and is perfectly allowed. That is where the interpretation comes in. If the court misinterprets parliaments clear words on this law, then the charter and other defences are called into play. If they interpret it correctly, then NO LAW is being broken by the defendants, no crime has occurred.

But in Quebec, the appeals courts INSIST that all of this (including the charter) be completely argued before ANY decision is made and the reason for this is that IF they reverse an acquittal for example, then the Appeals court simply send it back to the trial judge for a decision on the next issue (the charter) already argued

. We also have a defence called “officially induced into error (of law)” and that comes into play when a high official of the Government (in this case Mr. Keith Spicer, past chairman of the CRTC) who said the following in a Nationally broadcast interviews on Jan 17, 1995 on the CBC.

MS. WALLIN: "And how about those consumers that are going over the border in this country, buying their little satellite dishes and saying" a pox on your houses, this is how I'm going to do it?"

MR. SPICER: "Absolutely, they're right. They should do whatever they think is right. Whatever they want to do."

MS. WALLIN: "So you won't be clamping down on them?"

MR. SPICER: "Absolutely no. We have spent, this country and the western world has spent 40 years telling the Russians it was immoral to block broadcasts. We're certainly not going to start doing that in Canada. Canadians are free people and they should act freely."

We have this on tape and play it in courts when allowed. Mr. Spicer can also be subpoenaed into court to testify on what he said and this would prove it totally although the tape is usually fine as the person who originally taped it for me appears in court and testifies that this is what he taped on Jan 17 1995 at my request (I live in the country and do not get local channels where I am).

What are people to do when they are told by a high government official on National TV (the top authority here) that they ARE allowed to do this and then, later, the same law tries to prohibit them from doing it without any changes to the law. The RC Act has not changed or been amended in the 9 and 10 sections since 1991. They have bought the equipment and aren’t going to use it as a boat anchor. So our law allows this as a specific defence when you are induced into error. (Mr. Spicer knew that the law never intended to pprotect foreign broadcasters but rather only against theft from Canadian “lawful distributors”. Otherwise they would not say “lawful distributors“ at all and would say “ANY distributor“ which would then INCLUDE DTV. The reason they did NOT do that is that the Canadian parliament DO NOT have any authority to regulate broadcasts that eminate from foreign sources and the USA is JUST as foreign to Canada (in law) as is Iraq or Hungary. Just like the American Government cannot regulate broadcasts from Cuba for example.

So that’s how this will play out. We have so many GOOD defences that it is hard to see how we could lose, but they will certainly bleed us with the high cost of litigating each issue, depending on how far we must go.

Make NO Mistake but in MY PERSONAL OPINION, this is about a payoff, political or otherwise, by Canadas monoply broadcasters acting in concert with DTV who have a large Grey market (est 300,000 to 500,000 ) to protect. Its not really about right TO wrong or about law. But thats how they go about their dirty deeds and their “under the table” interests. And the PUBLIC pays the cost.

Bye the way there are SOME who would see us as MORALLY wrong to receive a signal that we are not paying for. I ask all readers here to understand that we are NOT bound by morals in our society. That is an individual choice and opinions vary on what is and what is not morally correct. WE ARE bound by law and we do NOT make the law but are obliged to follow it. Therefor every court we appear before is apprized of this moral issue and that we DO understand it but that it is NOT a standard that THIS CASE should be judged on. This is about LAW at the court level and Not morals and THAT LAW is the issue before the court. It is not, in my opinion, morally correct for the US Government to do what they did in Waco or in the Elian Gonzales case for example, but some may disagree with me. Morals are personal decisions and MUST not be considered at ALL when considering LAW.

Well the answers are getting shorter :)

Is this moral? :)http://www.legal-rights.org/images/reno.jpg

Thanks,

To The REAL King!!
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Freedom has nothing to fear from the truth!

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