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September 25th, 2000, 11:49 PM
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Here it is :
PROVINCE OF QUEBEC
DISTRICT OF DRUMMOND
COURT OF QUEBEC
Criminal chamber
No. - 405-73-000132-991
_____________________________________
September 18, 2000
BEFORE:
THE HONORABLE DANIELLE CÔTÉ, J.C.Q.
_____________________________________
THE QUEEN
Plaintiff
VS
RICHARD THÉRIAULT
JACQUES D'ARGY
Accused
_____________________________________
JUDGEMENT
The accused went to their trial based on the following accusations:
«On the or around December 18, 1998, in Drummondville, district of Drummond, had illegally in their possession at 910, Lévis in Drummondville, material, or disposition, or components therof, in circumstances that give rise to think that one or the other, was used in order to contravene article 9 of the Law on the Radiocommunication, had been or was destined to be so used:
405-73-132-991
- A decoder, model DRD403RA model, with serial number 618653453 and a blue card ACCESS CARD, with the serial number 0000-7175-4444,
modified to decode pay per view signals transmitted by satellite, contrary to the provisions of paragraph 10(1)b) of the Law on the Radiocommunication, L.R.C. 1985 cR-2, committing an infringement foreseen to article 10 (1) of the Law on the Radiocommunication.»
A few days before the beginning of the trial, the accused submitted to the Court and to the Crown attorneys a written statement or factum in which they claim that the legal provisions of the Radiocommunication ACT on which the accusations are founded violate their freedom of speech protected by the Canadian Charter of the Rights and Freedoms section 2b.
Since the beginning of the trial, the Crown declared themselves unable to answer this assertion because of the short delay between the notification of this statement or factum and the date set for the trial.
Taking into account the witnesses who were present and, more particularly, a witness coming from the outside of the country, the Court offered the accused to hear the Crown's evidence and to postpone the continuation of the trial in order to give them the opportunity to decide if they had the intention of presenting a defense. (witnesses)
Meanwhile, the Crown would have the opportunity to answer the constitutional arguments.
405-73-000132-991
On the resumption of the lawsuit, the accused informed the Court that they didn't intend to present a defense and that they would concentrate on and be content with presenting an argument on the law.
Because of the nature of this argument, it important to refer to the pertinent articles:
Definitions
Article 2
«Network feed» means any radiocommunication that is transmitted
(a) by a network operation to its affiliates,
(b) to a network operation for retransmission by it to its affiliates, or
(c) by a lawful distributor to a programming undertaking;
«Lawful distributor» lawful distributor, in relation to an encrypted subscription programming signal or encrypted network feed, means a person who has the lawful right in Canada to transmit it and authorize its decoding;
«Encrypted» "encrypted" means treated electronically or otherwise for the purpose of preventing intelligible reception;
«Radiocommunication»or «Radio» radiocommunication "or" radio" means any transmission, emission or reception of signs, signals, writing, images, sounds or intelligence of any nature by means of electromagnetic waves of frequencies lower than 3 000 GHz propagated in space without artificial guide;
« Subscription Signal» "subscription programming signal" means 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;
Article 9. (1) No person shall:
(c) decode an encrypted subscription programming signal or encrypted network feed otherwise than under and in accordance with an authorization from the lawful distributor of the signal or feed;
405-73-000132-991
Article 10. (1)
(b) without lawful excuse, manufactures, 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,
Upon reading the legislative texts, the Court is of opinion that there was no need to recap the details of the evidence presented by the Crown. It suffices to say that the accused were in possession of material permitting or having permitted to decode a subscription signal coming from the United States.
This subscription signal is broadcast by DIRECTV, who is not a lawful distributor in Canada.
The arguments of the accused are summarized as follows: first, the Crown did not prove the commission of an infringement since the prohibition to decode foreseen in articles 10(l)(b) and 9(l)(c) applies only to the decoding of a subscription signal broadcast by a lawful distributor in Canada; secondly if the prohibition foreseen by section 9 applies to the subscription signal coming from a satellite in space, then the said provision must be declared void, both because of imprecision (void for vagueness) and also because of the violation of the freedom of speech under section 2b of the Charter.
If all these arguments are rejected, the accused claims that the Crown did not meet the burden of proof required in the circumstances that gives reason to believe that a possible infringement of law has occurred.
What is therefore the range of the prohibition to decrypt foreseen in articles 10(l)(b) and 9(l)(c)?
The reading of the abundant statute law (jurisprudence) which was submitted by the parties permits noting a deep division in this jurisprudence.
405-73-000132-991
Some courts have stated that a reading of article 9(l)(c) prohibit all form of decoding of a subscription signal (total prohibition) and that, whether a lawful distributor of this signal exists in Canada or not.
Others are of the opinion that the provision only aims to protect the decoding of a subscription signal broadcast by a lawful distributor in Canada.
It is important not to confuse the decoding of a subscription signal from a distributor that isn't a lawful distributor in Canada and the programming content available in Canada by an authorized lawful distributor.
In their written argument, the Crown states:
«a) As for what is alleged in paragraph 3 of the petition, the plaintiff states that it is false to claim that the satellite receivers which have been put into evidence can only decode signal that are not available to Canada. Indeed, Mr. Claude Doucet, representing the CRTC and Me Scott Gibson, representing Star Choice, have both testified to the effect that there are actually two legitimate distributors of satellite television in Canada: Bell ExpressVu and Star Choice, who distribute more than 95% of the programming content available on the American networks, including those distributed by DirecTV.»
With all due respect, the Court does not share this opinion. Indeed, what article 9(l)(c) prohibits is not the broadcasting of foreign programming without the authorization of a lawful distributor but the decoding of a subscription signal. (intended for the public in Canada)
It is clearly evident from the testimony of Mr. Michel Clavet, inspector for Industry Canada, that the signals that can be decoded by the devices seized are those of DIRECTV and not those of a lawful Canadian distributor. Indeed, the technology used by DIRECTV is not the same as the ones used by the two legitimate Canadian distributors.
405-73-000132-991
The question consists therefore in deciding what subscription signal is aimed at by this prohibition: all subscription signals or the subscription signal coming from a lawful distributor?
The written evidence given by the defense, with, and we must admit, a lot of collaboration on behalf of the Crown's attorney, reveal that there was always a zone of uncertainty as for the interpretation of this law.
For example, it suffices to compare the content of the service notes of the officer responsible for the section of the federal business to the under-management of the federal business and immigration dated May 19, 1999 (exhibit D-7), to the flyer prepared by Industry Canada.
As mentioned previously, this uncertainty is echoed in statute law.
It is the Court's opinion that the supporters of a total prohibition to decode all subscription signal convelute the very terms of the article: It is very well possible that perhaps the legislative intent was to promulgate such a prohibition but, in criminal and quasi - criminal matter, there can be no punishment without a crime.
The article foresees that it is prohibited from decoding, without the authorization of their lawful distributor (... ) a subscription signal. To conclude that the prohibition is total removes all meaning of the use of that possessive adjective.
To decree a total decoding prohibition, the legislator would have had to prohibit the decoding of a subscription signal without the authorization of a lawful distributor. The use of the term their is used only in relation with the words "subscription signal."
Le Petit Robert dictionary gives the following definition:
" THEIR - possessive Adjective of the 3rd person of the two kinds relating to several owners. Who is (are) to them, to them. [(theirs) possessive.]
405-73-000132-991
Thus, when one integrates the definitions to the text of the article 9(l)c, while taking into account the use of this possessive adjective, one gets: it is prohibited to decoding a subscription signal without the authorization of the person lawfully authorized in Canada to transmit this subscription signal and to authorize its decoding.
So that a lawful distributor can give the authorization to decode a subscription signal, it is necessary that he has himself the ability to decode this subscription signal himself...
With all due respect for the contrary opinion, to conclude otherwise is equivalent to barring out the word «their» from the provision that creates the infringement.
The reading of the English text goes to the same meaning: the text foresees that one cannot decode the subscription signal «otherwise than under and in accordance with an authorization from the lawful distributor of the signal or feed.».
If the legislator had wanted to foresee a total prohibition he would have used the terms «an authorization from a lawful distributor of a signal or feed».
It is possible that the legislator intention was a total prohibition but this intention was not translated in the words of the enactment of the law.
In the circumstances, the Court is of opinion that the Crown did not prove one of the essential elements of the accusation, to wit,: the decoding of a subscription signal emanating from a lawful distributor in Canada.
After the writing of this present judgment, the Court became aware of the decision of the Court of Appeal of British Colombia in the Bell Expressvu v. Rex and al., 2000 BCCAS 493 and takes the view expressed by the majority decision there.
405-73-000132-991
FOR THESE REASONS, THE COURT,::
ACQUITS the accused of the infringement they were accused of.
DANIELLE CÔTÉ, J.C.Q.
Me Manon Lavoie
Crown attorney
The accused personally (for themselves)
Here it is :
PROVINCE OF QUEBEC
DISTRICT OF DRUMMOND
COURT OF QUEBEC
Criminal chamber
No. - 405-73-000132-991
_____________________________________
September 18, 2000
BEFORE:
THE HONORABLE DANIELLE CÔTÉ, J.C.Q.
_____________________________________
THE QUEEN
Plaintiff
VS
RICHARD THÉRIAULT
JACQUES D'ARGY
Accused
_____________________________________
JUDGEMENT
The accused went to their trial based on the following accusations:
«On the or around December 18, 1998, in Drummondville, district of Drummond, had illegally in their possession at 910, Lévis in Drummondville, material, or disposition, or components therof, in circumstances that give rise to think that one or the other, was used in order to contravene article 9 of the Law on the Radiocommunication, had been or was destined to be so used:
405-73-132-991
- A decoder, model DRD403RA model, with serial number 618653453 and a blue card ACCESS CARD, with the serial number 0000-7175-4444,
modified to decode pay per view signals transmitted by satellite, contrary to the provisions of paragraph 10(1)b) of the Law on the Radiocommunication, L.R.C. 1985 cR-2, committing an infringement foreseen to article 10 (1) of the Law on the Radiocommunication.»
A few days before the beginning of the trial, the accused submitted to the Court and to the Crown attorneys a written statement or factum in which they claim that the legal provisions of the Radiocommunication ACT on which the accusations are founded violate their freedom of speech protected by the Canadian Charter of the Rights and Freedoms section 2b.
Since the beginning of the trial, the Crown declared themselves unable to answer this assertion because of the short delay between the notification of this statement or factum and the date set for the trial.
Taking into account the witnesses who were present and, more particularly, a witness coming from the outside of the country, the Court offered the accused to hear the Crown's evidence and to postpone the continuation of the trial in order to give them the opportunity to decide if they had the intention of presenting a defense. (witnesses)
Meanwhile, the Crown would have the opportunity to answer the constitutional arguments.
405-73-000132-991
On the resumption of the lawsuit, the accused informed the Court that they didn't intend to present a defense and that they would concentrate on and be content with presenting an argument on the law.
Because of the nature of this argument, it important to refer to the pertinent articles:
Definitions
Article 2
«Network feed» means any radiocommunication that is transmitted
(a) by a network operation to its affiliates,
(b) to a network operation for retransmission by it to its affiliates, or
(c) by a lawful distributor to a programming undertaking;
«Lawful distributor» lawful distributor, in relation to an encrypted subscription programming signal or encrypted network feed, means a person who has the lawful right in Canada to transmit it and authorize its decoding;
«Encrypted» "encrypted" means treated electronically or otherwise for the purpose of preventing intelligible reception;
«Radiocommunication»or «Radio» radiocommunication "or" radio" means any transmission, emission or reception of signs, signals, writing, images, sounds or intelligence of any nature by means of electromagnetic waves of frequencies lower than 3 000 GHz propagated in space without artificial guide;
« Subscription Signal» "subscription programming signal" means 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;
Article 9. (1) No person shall:
(c) decode an encrypted subscription programming signal or encrypted network feed otherwise than under and in accordance with an authorization from the lawful distributor of the signal or feed;
405-73-000132-991
Article 10. (1)
(b) without lawful excuse, manufactures, 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,
Upon reading the legislative texts, the Court is of opinion that there was no need to recap the details of the evidence presented by the Crown. It suffices to say that the accused were in possession of material permitting or having permitted to decode a subscription signal coming from the United States.
This subscription signal is broadcast by DIRECTV, who is not a lawful distributor in Canada.
The arguments of the accused are summarized as follows: first, the Crown did not prove the commission of an infringement since the prohibition to decode foreseen in articles 10(l)(b) and 9(l)(c) applies only to the decoding of a subscription signal broadcast by a lawful distributor in Canada; secondly if the prohibition foreseen by section 9 applies to the subscription signal coming from a satellite in space, then the said provision must be declared void, both because of imprecision (void for vagueness) and also because of the violation of the freedom of speech under section 2b of the Charter.
If all these arguments are rejected, the accused claims that the Crown did not meet the burden of proof required in the circumstances that gives reason to believe that a possible infringement of law has occurred.
What is therefore the range of the prohibition to decrypt foreseen in articles 10(l)(b) and 9(l)(c)?
The reading of the abundant statute law (jurisprudence) which was submitted by the parties permits noting a deep division in this jurisprudence.
405-73-000132-991
Some courts have stated that a reading of article 9(l)(c) prohibit all form of decoding of a subscription signal (total prohibition) and that, whether a lawful distributor of this signal exists in Canada or not.
Others are of the opinion that the provision only aims to protect the decoding of a subscription signal broadcast by a lawful distributor in Canada.
It is important not to confuse the decoding of a subscription signal from a distributor that isn't a lawful distributor in Canada and the programming content available in Canada by an authorized lawful distributor.
In their written argument, the Crown states:
«a) As for what is alleged in paragraph 3 of the petition, the plaintiff states that it is false to claim that the satellite receivers which have been put into evidence can only decode signal that are not available to Canada. Indeed, Mr. Claude Doucet, representing the CRTC and Me Scott Gibson, representing Star Choice, have both testified to the effect that there are actually two legitimate distributors of satellite television in Canada: Bell ExpressVu and Star Choice, who distribute more than 95% of the programming content available on the American networks, including those distributed by DirecTV.»
With all due respect, the Court does not share this opinion. Indeed, what article 9(l)(c) prohibits is not the broadcasting of foreign programming without the authorization of a lawful distributor but the decoding of a subscription signal. (intended for the public in Canada)
It is clearly evident from the testimony of Mr. Michel Clavet, inspector for Industry Canada, that the signals that can be decoded by the devices seized are those of DIRECTV and not those of a lawful Canadian distributor. Indeed, the technology used by DIRECTV is not the same as the ones used by the two legitimate Canadian distributors.
405-73-000132-991
The question consists therefore in deciding what subscription signal is aimed at by this prohibition: all subscription signals or the subscription signal coming from a lawful distributor?
The written evidence given by the defense, with, and we must admit, a lot of collaboration on behalf of the Crown's attorney, reveal that there was always a zone of uncertainty as for the interpretation of this law.
For example, it suffices to compare the content of the service notes of the officer responsible for the section of the federal business to the under-management of the federal business and immigration dated May 19, 1999 (exhibit D-7), to the flyer prepared by Industry Canada.
As mentioned previously, this uncertainty is echoed in statute law.
It is the Court's opinion that the supporters of a total prohibition to decode all subscription signal convelute the very terms of the article: It is very well possible that perhaps the legislative intent was to promulgate such a prohibition but, in criminal and quasi - criminal matter, there can be no punishment without a crime.
The article foresees that it is prohibited from decoding, without the authorization of their lawful distributor (... ) a subscription signal. To conclude that the prohibition is total removes all meaning of the use of that possessive adjective.
To decree a total decoding prohibition, the legislator would have had to prohibit the decoding of a subscription signal without the authorization of a lawful distributor. The use of the term their is used only in relation with the words "subscription signal."
Le Petit Robert dictionary gives the following definition:
" THEIR - possessive Adjective of the 3rd person of the two kinds relating to several owners. Who is (are) to them, to them. [(theirs) possessive.]
405-73-000132-991
Thus, when one integrates the definitions to the text of the article 9(l)c, while taking into account the use of this possessive adjective, one gets: it is prohibited to decoding a subscription signal without the authorization of the person lawfully authorized in Canada to transmit this subscription signal and to authorize its decoding.
So that a lawful distributor can give the authorization to decode a subscription signal, it is necessary that he has himself the ability to decode this subscription signal himself...
With all due respect for the contrary opinion, to conclude otherwise is equivalent to barring out the word «their» from the provision that creates the infringement.
The reading of the English text goes to the same meaning: the text foresees that one cannot decode the subscription signal «otherwise than under and in accordance with an authorization from the lawful distributor of the signal or feed.».
If the legislator had wanted to foresee a total prohibition he would have used the terms «an authorization from a lawful distributor of a signal or feed».
It is possible that the legislator intention was a total prohibition but this intention was not translated in the words of the enactment of the law.
In the circumstances, the Court is of opinion that the Crown did not prove one of the essential elements of the accusation, to wit,: the decoding of a subscription signal emanating from a lawful distributor in Canada.
After the writing of this present judgment, the Court became aware of the decision of the Court of Appeal of British Colombia in the Bell Expressvu v. Rex and al., 2000 BCCAS 493 and takes the view expressed by the majority decision there.
405-73-000132-991
FOR THESE REASONS, THE COURT,::
ACQUITS the accused of the infringement they were accused of.
DANIELLE CÔTÉ, J.C.Q.
Me Manon Lavoie
Crown attorney
The accused personally (for themselves)