apn_64
May 3rd, 2002, 12:07 PM
Don't touch that dial
In its tortuous decision on satellite TV, the Supreme Court sidestepped the key question of Canadians' free speech right to watch what they want.
George Bragues
National Post (May 3rd)
Do we live in a country whose citizens have the free speech right to the television fare of their choice? That was the question the Supreme Court should have affirmatively answered in its unanimous decision to illegalize the grey market, where an estimated 200,000-800,000 Canadians subscribe to U.S. satellite services. Instead, the court needlessly prolonged the satellite wars by setting aside the free speech issue to another day in a poorly reasoned opinion that bodes ill for any future Charter challenge of existing satellite laws.
Bell ExpressVu v. Richard Rex of Can-Am Satellites centred on the interpretation of the Radiocommunication Act (RCA). It reads: "No person shall decode an encrypted subscription programming signal ... otherwise than under and in accordance with an authorization of the lawful distributor of the signal." The complicating factor here is that "lawful distributor" only refers to an entity that has been licensed by the CRTC to sell television programming in Canada, which leaves out DirecTV and DishNetwork, the two U.S. satellite services offered on the grey market. To Bell ExpressVu, Canada's leading satellite provider, this definition implied a complete ban on the reception of U.S. signals since no one is in a position to legally authorize their decoding. But for Can-Am Satellites, a grey market dealer in B.C., it meant that the RCA was only protecting Canadian broadcasters from unauthorized decoding, thereby allowing people to sign up for a U.S. service. The Can-Am side also insisted that their reading appropriately limited the government's power, given the quasi-criminal punishments specified in the RCA, and was better aligned with the Charter's free speech guarantee.
Since there was relatively little consideration of Charter-related arguments at the lower court levels, the Supreme Court refused to interpret the RCA with free speech rights in mind unless its provisions were ambiguous. The same condition needed to be satisfied before limiting the law's reach out of concern for its penal consequences. Acknowledging the law's ambiguity should have been obvious, if only because dozens of judges around the country had already looked at the RCA and come to divergent understandings of its meaning. Clarity, like beauty, is in the eye of the beholder. The court ruling itself declares a law to be ambiguous when the wording can entice two parties to hazard money in support of opposing views of its meaning. While this is precisely what the opposing sides did in this case, even after being repeatedly exposed to both interpretations of the RCA from judges, the Supreme Court found the law to be comprehensible.
Its tortuous attempts to elucidate the RCA belied this conclusion, as the opinion examined the grammatical and linguistic elements of both the French- and English-language versions of the law, offering extended dissections of terms like "an," "the," and "elsewhere." Yet this voyage back to grammar school could not obscure the sleight of hand that the justices employed in determining that the law prohibited all but the authorized reception of CRTC-approved signals. To have the law read in this form as a general ban with an exception, the court had to define the word "an" before "subscription programming signal" in the RCA as denoting "any", though it admitted that "an" can also mean "some". Declaring instead that only "some" signals are implicated would have left the possibility that only Canadian signals are subject to prohibition.
The justices didn't consider this equally justifiable alternative because they were looking to harmonize the RCA's words with the objectives of the Broadcasting Act. That the RCA is subordinated in this fashion is never actually stated in the law. Nor does it square with the fact that the provision at issue deals with reception of television, the demand side of the industry, while the Broadcasting Act covers the production and distribution of television, the supply side of the industry. But the court got around this by the simple expedient of citing a book on communications law. From here, it was just a matter of pointing out that permitting unregulated foreign signals into the country alongside a regulated framework would be inconsistent with the vision of a single system affirmed in the Broadcasting Act. Strange that the judges did not look further into that legislation, for they would have noticed that it additionally mandates respect for freedom of expression, programming that caters to Canada's multicultural population (U.S. satellites offer far more international channels), and a willingness to adapt to technological change.
Reversing what the Supreme Court wrought with a Charter challenge has been rendered all the more difficult, inasmuch as the ruling also linked the RCA to the copyright laws. Confronted with a free speech claim, the judges will now be bound to weigh this against the argument that allowing someone to watch, say, --- and the City on HBO with an American dish invades Bravo's rights to solely transmit that show in Canada. In trying to balance the two concerns, the judges may well be tempted by the domestic media lobby's contention that a lot of what is available on the U.S. systems is shown here by Canadian stations.
Worse, the court sympathized with the federal government's position in wondering how the whole enterprise of supporting Canadian culture with ownership restrictions and content requirements can possibly subsist if the border is opened to U.S. satellites. That is an ominous indication going forward, since the Charter permits free speech to be infringed if it can be shown that it is absolutely necessary to fulfill a compelling purpose. And it bears repeating, this was a unanimous decision among seven judges.
George Bragues teaches economics and humanities at Toronto's Humber College.
In its tortuous decision on satellite TV, the Supreme Court sidestepped the key question of Canadians' free speech right to watch what they want.
George Bragues
National Post (May 3rd)
Do we live in a country whose citizens have the free speech right to the television fare of their choice? That was the question the Supreme Court should have affirmatively answered in its unanimous decision to illegalize the grey market, where an estimated 200,000-800,000 Canadians subscribe to U.S. satellite services. Instead, the court needlessly prolonged the satellite wars by setting aside the free speech issue to another day in a poorly reasoned opinion that bodes ill for any future Charter challenge of existing satellite laws.
Bell ExpressVu v. Richard Rex of Can-Am Satellites centred on the interpretation of the Radiocommunication Act (RCA). It reads: "No person shall decode an encrypted subscription programming signal ... otherwise than under and in accordance with an authorization of the lawful distributor of the signal." The complicating factor here is that "lawful distributor" only refers to an entity that has been licensed by the CRTC to sell television programming in Canada, which leaves out DirecTV and DishNetwork, the two U.S. satellite services offered on the grey market. To Bell ExpressVu, Canada's leading satellite provider, this definition implied a complete ban on the reception of U.S. signals since no one is in a position to legally authorize their decoding. But for Can-Am Satellites, a grey market dealer in B.C., it meant that the RCA was only protecting Canadian broadcasters from unauthorized decoding, thereby allowing people to sign up for a U.S. service. The Can-Am side also insisted that their reading appropriately limited the government's power, given the quasi-criminal punishments specified in the RCA, and was better aligned with the Charter's free speech guarantee.
Since there was relatively little consideration of Charter-related arguments at the lower court levels, the Supreme Court refused to interpret the RCA with free speech rights in mind unless its provisions were ambiguous. The same condition needed to be satisfied before limiting the law's reach out of concern for its penal consequences. Acknowledging the law's ambiguity should have been obvious, if only because dozens of judges around the country had already looked at the RCA and come to divergent understandings of its meaning. Clarity, like beauty, is in the eye of the beholder. The court ruling itself declares a law to be ambiguous when the wording can entice two parties to hazard money in support of opposing views of its meaning. While this is precisely what the opposing sides did in this case, even after being repeatedly exposed to both interpretations of the RCA from judges, the Supreme Court found the law to be comprehensible.
Its tortuous attempts to elucidate the RCA belied this conclusion, as the opinion examined the grammatical and linguistic elements of both the French- and English-language versions of the law, offering extended dissections of terms like "an," "the," and "elsewhere." Yet this voyage back to grammar school could not obscure the sleight of hand that the justices employed in determining that the law prohibited all but the authorized reception of CRTC-approved signals. To have the law read in this form as a general ban with an exception, the court had to define the word "an" before "subscription programming signal" in the RCA as denoting "any", though it admitted that "an" can also mean "some". Declaring instead that only "some" signals are implicated would have left the possibility that only Canadian signals are subject to prohibition.
The justices didn't consider this equally justifiable alternative because they were looking to harmonize the RCA's words with the objectives of the Broadcasting Act. That the RCA is subordinated in this fashion is never actually stated in the law. Nor does it square with the fact that the provision at issue deals with reception of television, the demand side of the industry, while the Broadcasting Act covers the production and distribution of television, the supply side of the industry. But the court got around this by the simple expedient of citing a book on communications law. From here, it was just a matter of pointing out that permitting unregulated foreign signals into the country alongside a regulated framework would be inconsistent with the vision of a single system affirmed in the Broadcasting Act. Strange that the judges did not look further into that legislation, for they would have noticed that it additionally mandates respect for freedom of expression, programming that caters to Canada's multicultural population (U.S. satellites offer far more international channels), and a willingness to adapt to technological change.
Reversing what the Supreme Court wrought with a Charter challenge has been rendered all the more difficult, inasmuch as the ruling also linked the RCA to the copyright laws. Confronted with a free speech claim, the judges will now be bound to weigh this against the argument that allowing someone to watch, say, --- and the City on HBO with an American dish invades Bravo's rights to solely transmit that show in Canada. In trying to balance the two concerns, the judges may well be tempted by the domestic media lobby's contention that a lot of what is available on the U.S. systems is shown here by Canadian stations.
Worse, the court sympathized with the federal government's position in wondering how the whole enterprise of supporting Canadian culture with ownership restrictions and content requirements can possibly subsist if the border is opened to U.S. satellites. That is an ominous indication going forward, since the Charter permits free speech to be infringed if it can be shown that it is absolutely necessary to fulfill a compelling purpose. And it bears repeating, this was a unanimous decision among seven judges.
George Bragues teaches economics and humanities at Toronto's Humber College.