Lahaie et al. v. Attorney General of Canada et al. [Indexed as: Lahaie v. Canada (Attorney General)]

101 O.R. (3d) 241

2010 ONCA 516

Court of Appeal for Ontario,

Simmons, LaForme and Epstein JJ.A.

July 20, 2010

Charter of Rights and Freedoms -- Search and seizure -- Police obtaining warrants to search plaintiffs' premises for evidence of offence under ss. 9(1)(c) and 10(1)(b) of Radiocommunication Act in 1998 -- Canadian courts divided at that time on question of whether those provisions applied to signals originating outside Canada -- Information to obtain search warrants stating that s. 9(1)(c) of Act "clearly provides" absolute prohibition against decoding of encrypted subscription program signals unless they emanate from lawful distributor in Canada and that distributor authorizes decoding -- Plaintiffs successfully suing for damages under s. 24(1) of Charter after charges against them were stayed -- Defendant's appeal allowed -- No Ontario case law existing on issue of whether ss. 9(1)(c) and 10(1)(b) of Act applied to foreign signals at time of application for search warrant -- Affiant of ITO having no duty to disclose conflicting case law from outside Ontario -- Police not acting unre asonably in relying on decision of Federal Court of Appeal as setting out accurate statement of law -- Police not having duty to consider alternatives to obtaining search warrants -- Trial judge erring in finding that police acted without good faith and that their conduct was malicious -- No basis existing for setting aside search warrants -- Searches not infringing plaintiffs' rights under s. 8 of Charter -- Canadian Charter of Rights and Freedoms, ss. 8, 24(1) -- Radiocommunication Act, R.S.C. 1985, c. R-2, ss. 9(1)(c), 10(1)(b).

In 1998, the police obtained warrants to search the plaintiffs' premises for evidence of an offence under ss. 9(1) (c) and 10(1)(b) of the Radiocommunication Act. At that time, Canadian courts were divided on the question of whether those provisions applied to signals originating from outside Canada. No Ontario court had ruled on the issue. The only appellate decision in Canada conclusively interpreting the relevant sections was a decision of the Federal Court of Appeal, which held that s. 9(1)(c) of the Act applied to encrypted signals coming from the United States, regardless of whether there were lawful distributors in Canada. The information to obtain the search warrants stated that s. 9(1) (c) of the Act "clearly provides an absolute prohibition against the decoding of encrypted subscription program signals unless they emanate from a lawful distributor in Canada and that distributor authorizes their decoding". Charges against the plaintiffs were subsequen tly stayed. The plaintiffs brought a civil action against the defendants for damages under s. 24(1) of the Canadian Charter of Rights and Freedoms. The trial judge set aside the warrants based on findings that the police acted maliciously and without good faith by obtaining the warrants without disclosing the existence of conflicting case law from outside Ontario concerning the proper interpretation of ss. 9(1)(c) and 10(1)(b) and without considering alternatives to obtaining a search warrant. Finding that the police conducted an extensive and unjustified warrantless search, the trial judge awarded the plaintiffs damages of $100,000. The defendants appealed.

Held, the appeal should be allowed. [page242]

The affiant of the ITO had no duty to disclose conflicting case law from outside Ontario that was not binding in Ontario. In the absence of Ontario authority, it was not unreasonable for the police to rely on a decision of the Federal Court of Appeal as setting out an accurate statement of the law. The police did not have an obligation to consider alternative modes of enforcement to obtaining a search warrant. The trial judge erred in finding that the police acted without good faith and that their conduct was malicious. There was no basis for setting aside the search warrants. The plaintiffs' Charter rights were not infringed.

APPEAL from the judgment of Power J., 2008 CanLII 68124 (ON SC), [2008] O.J. No. 5276, 303 D.L.R. (4th) 213 (S.C.J.) for the plaintiffs in an action for damages under s. 24(1) of the Charter. [page243]

Elizabeth Richards and Alexander Gay, for appellants/ respondents by way of cross-appeal.

Joseph Y. Obagi and Elizabeth Quigley, for respondents/ appellants by way of cross-appeal.

Cases referred to ExpressVu Inc. v. NII Norsat International Inc., [1997] F.C.J. No. 1563, 222 N.R. 213, 81 C.P.R. (3d) 345, 75 A.C.W.S. (3d) 832 (C.A.), affg 1997 CanLII 6357 (FC), [1997] F.C.J. No. 1004, [1998] 1 F.C. 245, 134 F.T.R. 264, 73 A.C.W.S. (3d) 229 (T.D.); R. v. King, 1997 CanLII 9531 (NB CA), [1997] N.B.J. No. 106, 187 N.B.R. (2d) 185, 34 W.C.B. (2d) 108 (C.A.), revg [1996] N.B.J. No. 449, [1996] N.B.R. (2d) (Supp.) No. 56, 32 W.C.B. (2d) 230 (Q.B. (T.D.)); R. v. Miles of Music Ltd. (1989), 1989 CanLII 255 (ON CA), 74 O.R. (2d) 518, [1989] O.J. No. 391, 31 O.A.C. 380, 48 C.C.C. (3d) 96, 23 C.I.P.R. 16, 24 C.P.R. (3d) 301, 69 C.R. (3d) 361, 43 C.R.R. 294, 7 W.C.B. (2d) 93 (C.A.), consd R. v. Branton (2001), 2001 CanLII 8535 (ON CA), 53 O.R. (3d) 737, [2001] O.J. No. 1445, 199 D.L.R. (4th) 321, 144 O.A.C. 187, 154 C.C.C. (3d) 139, 44 C.R. (5th) 275, 82 C.R.R. (2d) 285, 49 W.C.B. (2d) 589 (C.A.), affg [2000] O.J. No. 3323, [2000] O.T.C. 558, 47 W.C.B. (2d) 296 (S.C.J.), distd Other cases referred to Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, J.E. 2002-775, 166 B.C.A.C. 1, 100 B.C.L.R. (3d) 1, 18 C.P.R. (4th) 289, 93 C.R.R. (2d) 189, REJB 2002-30904, 113 A.C.W.S. (3d) 52; CanadianOxy Chemicals Ltd. v. Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 S.C.R. 743, [1998] S.C.J. No. 87, 171 D.L.R. (4th) 733, 237 N.R. 373, J.E. 99-861, 122 B.C.A.C. 1, 133 C.C.C. (3d) 426, 29 C.E.L.R. (N.S.) 1, 23 C.R. (5th) 259, 41 W.C.B. (2d) 411; R. v. Araujo, [2000] 2 S.C.R. 992, [2000] S.C.J. No. 65, 2000 SCC 65, 193 D.L.R. (4th) 440, 262 N.R. 346, J.E. 2001-74, 143 B.C.A.C. 257, 149 C.C.C. (3d) 449, 38 C.R. (5th) 307, 79 C.R.R. (2d) 1, 48 W.C.B. (2d) 65; R. v. Ereiser, 1997 CanLII 11293 (SK QB), [1997] S.J. No. 276, [1997] 7 W.W.R. 522, 156 Sask. R. 71, 35 W.C.B. (2d) 103 (Q.B.); R. v. Hollohan, [1996] B.C.J. No. 2479, 33 W.C.B. (2d) 169 (S.C.); R. v. Knibb, 1997 CanLII 22755 (AB PC), [1997] A.J. No. 513, [1997] 8 W.W.R . 115, 51 Alta. L.R. (3d) 294, 198 A.R. 161, 34 W.C.B. (2d) 449 (Prov. Ct.); R. v. LeBlanc, [1997] N.S.J. No. 476 (S.C.); R. v. Love, 1997 CanLII 22877 (MB QB), [1997] M.J. No. 109, 117 Man. R. (2d) 123, 34 W.C.B. (2d) 216 (Q.B.); R. v. Maton, [2005] B.C.J. No. 697, 2005 BCSC 330, 133 C.R.R. (2d) 72, 65 W.C.B. (2d) 186, [2005] B.C.T.C. 330 (S.C.); R. v. Mitton, [1996] N.B.J. No. 471, [1996] N.B.R. (2d) (Supp.) No. 69 (Q.B. (T.D.)); R. v. Morris, 1998 NSCA 229, [1998] N.S.J. No. 492, 173 N.S.R. (2d) 1, 134 C.C.C. (3d) 539, 23 C.R. (5th) 354, 42 W.C.B. (2d) 157 (C.A.); R. v. Open Sky Inc., [1995] M.J. No. 530, 106 Man. R. (2d) 37, 29 W.C.B. (2d) 271 (C.A.), affg [1994] M.J. No. 734, 27 W.C.B. (2d) 532 (Prov. Ct.) [Leave to appeal refused 1996 CanLII 18107 (MB CA), [1996] M.J. No. 208, 110 Man. R. (2d) 153, 30 W.C.B. (2d) 429 (C.A.)]; R. v. Quality Electronics (Taber) Ltd., [1998] A.J. No. 628 (Q.B.) Statutes referred to Canadian Charter of Rights and Freedoms, s. 24(1) Criminal Code, R.S.C. 1985, c. C-46, s. 490 [as am.] Radiocommunication Act, R.S.C. 1985, c. R-2, ss. 9(1)(c), 10(1) (b)

[1] BY THE COURT: -- In its 2002 decision in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, the Supreme Court of Canada confirmed that ss. 9(1)(c) and 10(1)(b) of the Radiocommunication Act, R.S.C. 1985, c. R-2 (the "Act") [See Note 1 below] make it an offence for Canadian residents to decode encrypted programming signals, regardless of the signal's origin, without proper authorization, even where there is no lawful distributor of the signals in Canada. Prior to this decision, courts across the country were divided on the question of whether these provisions apply to signals originating from outside of Canada.

[2] The issues in this appeal relate to the validity of search warrants issued in 1998 to search the respondents' premises for items that would disclose evidence of an offence under ss. 9(1)(c) and 10(1)(b) of the Act.

[3] The respondents carried on business importing and supplying satellite equipment and "smart cards" designed for receiving and decoding encrypted satellite television broadcasts emanating from the United States.

[4] At the time the search warrants were issued, no Ontario court had ruled on the proper interpretation of ss. 9(1)(c) and 10(1)(b) of the Act. Charges against the respondents, based on evidence gathered in the execution of the search warrants, were stayed following this court's decision in R. v. Branton (2001), 2001 CanLII 8535 (ON CA), 53 O.R. (3d) 737, [2001] O.J. No. 1445 (C.A.), [See Note 2 below] holding that s. 9(1)(c) is ambiguous as it relates to foreign signals and should therefore be interpreted in a manner favourable to the accused.

[5] In March 2002, the respondents commenced a civil action arising from the search, seizure and subsequent prosecution.

[6] In the context of the respondents' claim for damages under s. 24(1) of the Canadian Charter of Rights and Freedoms, the only issue that proceeded to trial, the trial judge set aside the warrants to search the respondents' premises based on findings that the police acted maliciously and without good faith by obtaining the warrants without disclosing the existence of conflicting [page244] case law from outside of Ontario concerning the proper interpretation of ss. 9(1)(c) and 10(1)(b) and without considering alternatives to obtaining a search warrant.

[7] Holding that the police conducted an extensive and unjustified warrantless search, the trial judge awarded $100,000 damages to the respondents, but dismissed their claims for punitive damages.

[8] The appellants challenge the legal underpinnings of the trial judge's findings of malice and lack of good faith as well as his application of the legal test for obtaining a search warrant. The respondents cross-appeal, claiming that the trial judge erred in failing to award punitive damages.

[9] For the reasons that follow, we allow the appeal, set aside the award of damages and dismiss the respondents' action and cross-appeal. Background

[10] On November 24, 1998, RCMP officer Jean-Louis Noreau obtained search warrants for the respondents' premises based on an information to obtain alleging an offence had been committed under ss. 9(1)(c) and 10(1)(b) of the Act.

[11] In the information to obtain, Officer Noreau stated that s. 9(1)(c) of the Act "clearly provides an absolute prohibition against the decoding of encrypted subscription program signals unless they emanate from a lawful distributor in Canada and that distributor authorizes their decoding".

[12] Although there were, at the time, several decisions from outside Ontario setting out conflicting opinions concerning whether s. 9(1)(c) applied to foreign signals, [See Note 3 below] Officer Noreau did not bring those decisions to the attention of the justice of the peace who issued the warrant. [page245]

[13] Later on November 24, 1998, Officer Noreau led a search team to carry out the search. Charges were laid against the respondents in February and July 1999, but they were eventually stayed based on this court's decision in Branton. No action was taken to reinstate the charges following the Supreme Court of Canada's decision in Bell ExpressVu.

[14] In the context of the civil action for damages under s. 24(1) of the Charter, the trial judge concluded that the warrants to search the respondents' premises should be set aside because the "lack of candour" of the police officer affiant in the information to obtain was subversive of the prior authorization process.

[15] In addition, the trial judge found that the appellants acted "without good faith" and that their conduct was "malicious". In the end, the trial judge awarded the respondents $100,000 in damages plus costs totalling $425,000, holding that the appellants breached the respondents' rights to be free of unreasonable search and seizure. Discussion

[16] As the issues on appeal are interrelated, we will deal with them together.

[17] The trial judge's conclusions that the appellants acted without good faith, that their conduct was malicious, that the warrants should be set aside and that damages should be awarded rested on three central premises.

[18] First, the trial judge held [at para. 265] that the police officer affiant had an obligation to "include in [the] information [to obtain] a clear statement of the judicial uncertainty" concerning the then prevailing state of the law concerning whether ss. 9(1)(c) and 10(1)(b) of the Act disclosed an offence known to law on these facts.

[19] Second, in the context of the police officer affiant's knowledge of the conflicting case law, the trial judge found [at para. 131] untenable the police officer affiant's statement in the information to obtain that s. 9(1)(c) of the Act "clearly provides an absolute prohibition against the decoding of encrypted subscription program signals unless they emanate from a lawful distributor in Canada and that distributor authorizes their decoding" (emphasis added).

[20] Third, the trial judge found that the police had an obligation to consider alternatives to obtaining a search warrant in circumstances where there were conflicting decisions relating to the existence of an offence and where the execution of a [page246] search warrant could result in "a termination" of the respondents' business.

[21] In our opinion, the trial judge's three central premises are wrong and taint his findings concerning the conduct of the appellants. That, in turn, undermines the trial judge's conclusions that the search warrants should be set aside. In the end, we see no basis for an award of Charter damages.

First premise

[22] As we have said, in its 2002 decision in Bell ExpressVu, the Supreme Court of Canada held that ss. 9(1)(c) and 10(1)(b) of the Act make it an offence to decode encrypted signals without authorization, no matter where the signals emanate from and whether there is a lawful distributor in Canada. As a result of this decision, it is essentially undisputed that about 97 per cent of the business carried on by the respondents on November 24, 1998 (the date on which the initial search warrants were obtained and executed) is, and always was, illegal.

[23] Although it is true that as of November 24, 1998 there were conflicting decisions in other provinces concerning whether the provisions in issue applied to foreign signals for which there was no lawful Canadian distributor, there were no decisions on point in Ontario at the time. Moreover, the only appellate decision in Canada conclusively interpreting the relevant sections was a decision from the Federal Court of Appeal (though it, like Bell ExpressVu, was a civil case), which effectively held that s. 9(1)(c) of the Act applies to encrypted signals coming from the United States, regardless of whether there are lawful distributors in Canada: ExpressVu Inc. v. NII Norsat International Inc., supra, at paras. 4-5. [See Note 4 below]

[24] We are sceptical that an affiant police officer has a duty to bring conflicting case law concerning whether a statutory provision discloses an offence to the attention of a justice of the peace considering whether to issue a search warrant.

[25] It is not the function of the justice of a peace (or, for that matter, of the police) to finally determine the question of whether the essential elements of the offence are made out when issuing a search warrant. Rather, that is the task of the trial judge: see CanadianOxy Chemicals Ltd. v. Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 S.C.R. 743, [1998] S.C.J. No. 87, at paras. 21-22. [page247]

[26] Although we agree that it would be improper for a police officer to present a one-sided review of conflicting case law, the essential obligations of the police on a search warrant application are to identify the relevant statutory provision(s) and to present full and fair disclosure of the material facts.

[27] In any event, as of November 24, 1998, no Ontario court had opined on the question of whether ss. 9(1)(c) and 10(1)(b) of the Act applied to foreign signals where there is no lawful distributor in Canada. Accordingly, there was no Ontario authority on point at the time, let alone conflicting authority. In these circumstances, we are satisfied that the police officer affiant of the information to obtain had no duty to disclose conflicting case law from outside the province that was not binding in Ontario.

Second premise

[28] Further, contrary to the submissions of the respondents, we do not read the police officer affiant's statement in the information to obtain that s. 9(1)(c) "clearly" provides an absolute prohibition as presenting a one-sided view of the existing case law. Read fairly and in context, the statement in issue relates to the wording of the s. 9(1)(c) itself. Although we agree that it was not the role of the affiant officer to express an opinion about the clarity of the section, we see no basis for characterizing the officer's statement as a misrepresentation concerning the state of the existing jurisprudence.

[29] In any event, in the light of the decision of the Federal Court of Appeal in NII Norsat, in our view the trial judge's conclusion that the police could not rely on their understanding of the provisions in applying for the warrant is simply wrong. In the absence of Ontario authority, we do not consider it unreasonable for the police to rely on a decision of the Federal Court of Appeal as setting out an accurate statement of the law.

Third premise

[30] Finally, we conclude that the trial judge erred in holding that the police had an obligation to consider alternative modes of enforcement to obtaining a search warrant on the facts of this case.

[31] Unlike the situation in Branton, the seizure here did not extend beyond goods that police were authorized to seize under the search warrant.

[32] Further, we do not read the dissenting opinion in R. v. Miles of Music Ltd. (1989), 1989 CanLII 255 (ON CA), 74 O.R. (2d) 518, [1989] O.J. No. 391 (C.A.), nor the trial-level decision in R. v. King, supra, as creating [page248] authority for the proposition that the police have an obligation to consider alternative mechanisms for enforcement in circumstances such as these.

[33] As we have said, no Ontario court had opined on whether the sections in issue created an offence on these facts at the time the search warrants were issued and the only appellate court that had definitively interpreted the sections held that the sections indeed created an offence in these circumstances. Moreover, it is undisputed that approximately 97 per cent of the respondents' business involved the sale of satellite equipment, software and related material, which, on the authority of the NII Norsat decision, was illegal. We note as well that the respondents did not avail themselves of the procedure under s. 490 of the Criminal Code, R.S.C. 1985, c. C- 46 for obtaining the return of the seized goods pending trial.

Findings of lack of good faith and malicious conduct

[34] As we have said, in our view, the trial judge's errors concerning these three premises taint his findings that the police acted without good faith and that their conduct was malicious.

[35] As the police officer affiant had no obligation to disclose conflicting case law from outside of Ontario, his failure to do so cannot support a finding that he acted without good faith. Nor can his statement that s. 9(1)(c) "clearly" creates an absolute prohibition support such a finding. Contrary to the trial judge's conclusion, the officer's statement was an opinion about the clarity of the section and not a misrepresentation concerning the state of the jurisprudence. Further, although expressing this opinion was itself improper, that is a matter that would have been obvious to the justice of the peace.

[36] Finally, given that the police were entitled to obtain the search warrants, we fail to see how the fact that executing the warrants may have led to shutting down the respondents' business supports a finding of malice.

[37] The trial judge accepted [at para. 265] that "[Officer] Noreau and the RCMP believed there was a reasonable prospect of conviction when seeking the search warrants". Given this finding and our conclusions that the police did not have an obligation to disclose conflicting case law or to consider alternatives to a search warrant, we see no basis for the finding of malice. The fact that a consequence of police conduct may be to shut down a business does not support a finding of malice where the police have a good faith belief that an offence is being committed and are taking proper steps to enforce the law. [page249]

Validity of the search warrants

[38] In the result, we see no basis for setting aside the search warrants.

[39] The trial judge did not apply the customary test for reviewing a search warrant, namely, whether on the record as excised and amplified, the authorizing judge could have issued the warrant: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, [2000] S.C.J. No. 65, at paras. 51-59. Rather, he adopts the language of Romilly J. in R. v. Maton, 2005 BCSC 330, [2005] B.C.J. No. 697, 133 C.R.R. (2d) 72 (S.C.), at para. 22, concluding [at para. 265] that the "lack of candour" by the police officer affiant of the information to obtain "was so subversive of the prior authorization process that the resulting warrant must be set aside to protect the process and the preventive function it serves".

[40] Although it is open to a reviewing judge to consider quashing a search warrant where the affiant is shown to have deliberately given false material statements or deliberately omitted material facts from an information to obtain with the intention of misleading a justice of the peace, the threshold for setting aside a search warrant in such circumstances is high: see R. v. Morris, 1998 NSCA 229, [1998] N.S.J. No. 492, 134 C.C.C. (3d) 539 (C.A.), at paras. 42-43, quoted with approval in Araujo, at para. 54:

These cases stress that errors, even fraudulent errors, do not automatically invalidate the warrant.

This does not mean that errors, particularly deliberate ones, are irrelevant in the review process. While not leading to automatic vitiation of the warrant, there remains the need to protect the prior authorization process. The cases just referred to do not foreclose a reviewing judge, in appropriate circumstances, from concluding on the totality of the circumstances that the conduct of the police in seeking prior authorization was so subversive of that process that the resulting warrant must be set aside to protect the process and the preventive function it serves.

[41] While the trial judge may have had some justifiable concerns about some aspects of the police officer affiant's credibility at trial (for example, in relation to his testimony concerning whether he read the relevant case law before applying for the search), once the trial judge's core findings concerning absence of good faith and malice are set aside, this is simply not a case that meets the test for setting aside a search warrant based on deliberate misconduct by the police.

[42] The respondents also raise concerns about some of the background information provided by the police officer affiant in the information to obtain concerning how direct-to-home satellite systems operate, the mechanisms being used by persons like the respondents for decrypting U.S. satellite signals and the basis [page250] for asserting that those mechanisms are illegal. They allege that the officer copied many of the statements in issue from Crown pleadings in a civil action against the government without any knowledge about the material facts and claim that this is another clear indication of the officer's intention to mislead.

[43] We do not accept this submission.

[44] First, we note that the trial judge made no such finding. His concern was that the background information, which he described [at para. 128] as "the template [the officer was] intending to treat . . . as an agreed statement of fact [from both side's pleadings]" was misleading concerning "the state of the law".

[45] For the reasons we have explained, we are not persuaded that the affiant officer had an obligation to disclose the existence of conflicting judicial views concerning the state of the law. Although some of the affiant officer's statements are, in effect, an assertion of how ss. 9(1)(c) and 10(1)(b) of the Act should be interpreted, [See Note 5 below] the affiant officer did not refer to case law as the basis for his assertions and therefore did not present a misleading picture of the state of the jurisprudence.

[46] Second, the officer testified at trial that when he was first assigned to this file, he reviewed a police binder addressing the Act, satellite systems and satellite signals, the Federal Court of Appeal decision and the pleadings in a civil action in which a satellite subscription retailer was seeking an injunction against the government. Although the officer's reference at trial to "an agreed statement" of fact may have been inaccurate, based on our review of the record, we are not persuaded that the respondents demonstrated that the police officer affiant lacked knowledge of any portion of the background information that was material to issuing the warrants. Conclusion

[47] Based on the foregoing reasons, we conclude that the trial judge erred by setting aside the search warrants.

[48] As the trial judge's finding that the respondents' rights to be free of unreasonable search and seizure was premised on his [page251] conclusions that the police conducted a warrantless search and that, in any event, the police had an obligation to consider alternatives to obtaining a search warrant, his findings of a Charter breach and the award of damages must be set aside.

[49] Further, as we see no basis in the record for either conclusion, we substitute an order dismissing the respondents' action with costs to the appellants on a partial indemnity scale fixed in the amount of $250,000, inclusive of disbursements and GST, and dismiss the respondents' cross- appeal.

[50] Costs of the appeal and cross-appeal are to the appellants on a partial indemnity scale fixed in the amount of $25,000, inclusive of disbursements and GST.

Appeal allowed.

APPENDIX

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

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; . . . . .

10(1) Every person who . . . . . (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, . . . . .

is guilty of an offence punishable on summary conviction and is liable, in the case of an individual, to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding one year, or to both, or, in the case of a corporation, to a fine not exceeding twenty-five thousand dollars.

Notes

Note 1: Sections 9(1)(c) and 10(1)(b) of the Act have been reproduced in the Appendix following these reasons.

Note 2: The trial-level decision in Branton is reported at [2000] O.J. No. 3323, [2000] O.T.C. 558 (S.C.J.).

Note 3: See R. v. Open Sky Inc., [1994] M.J. No. 734, 27 W.C.B. (2d) 532 (Prov Ct), affd [1995] M.J. No. 530, 106 Man. R. (2d) 37 (Q.B.), leave to appeal refused, 1996 CanLII 18107 (MB CA), [1996] M.J. No. 208, 110 Man. R. (2d) 153 (C.A.); R. v. King, 1997 CanLII 9531 (NB CA), [1997] N.B.J. No. 106, 187 N.B.R. (2d) 185 (C.A.), revg [1996] N.B.J. No. 449, [1996] N.B.R. (2d) (Supp.) No. 56 (Q.B. (T.D.)); R. v. Ereiser, 1997 CanLII 11293 (SK QB), [1997] S.J. No. 276, 156 Sask. R. 71 (Q.B.); R. v. Mitton, [1996] N.B.J. No. 471, [1996] N.B.R. (2d) (Supp.) No. 69 (Q.B. (T.D.)); R. v. Hollohan, [1996] B.C.J. No. 2479, 33 W.C.B. (2d) 169 (S.C.); R. v. Knibb, 1997 CanLII 22755 (AB PC), [1997] A.J. No. 513, 198 A.R. 161 (Prov. Ct.); R. v. Love, 1997 CanLII 22877 (MB QB), [1997] M.J. No. 109, 117 Man. R. (2d) 123 (Q.B.); ExpressVu Inc. v. NII Norsat International Inc., 1997 CanLII 6357 (FC), [1997] F.C.J. No. 1004, [1998] 1 F.C. 245 (T.D.), affd [1997] F.C.J. No. 1563, 222 N.R. 213 (C.A.); R. v. LeBlanc, [1997] N.S.J. No. 476 (S.C.); R. v. Quality Electronics (Taber) Ltd., [1998] A.J. No. 628 (Q.B.).

Note 4: While there were a few appellate court decisions from other provinces involving ss. 9(1)(c) and 10(1)(b) of the Act (see footnote #3 above), these decisions did not interpret the provisions.

Note 5: For example, in para. 14 of the information to obtain the officer wrote, "[u]nder the Radiocommunication Act, subscribers must obtain the authorization of the lawful distributor in Canada in order to decode the signal for reception on the subscribers television sets". Further, at para. 19, the officer explained, "[l]ike many electronic devices on the market, it was not long before a variety of Access Devices were developed to emulate and defeat Access or Smart Card security functions for digital satellite theft . . . . Their common purpose remained that of satellite signal thefts."