Her Majesty the Queen v. Branton et al. [Indexed as: R. v. Branton]

53 O.R. (3d) 737

[2001] O.J. No. 1445

Docket No. C35006

Court of Appeal for Ontario

Catzman, Weiler and Rosenberg JJ.A.

April 20, 2001

Charter of Rights and Freedoms--Search and seizure--Search warrants--Accused charged with offence under s. 9(1) (c) of Radiocommunication Act--Motions judge quashed three warrants to search accused's business premises--Section 9(1)(c) of Radiocommunication Act ambiguous--Offence in this case not known to law--Affidavit sworn in support of issuance of search warrants did not make frank and fair disclosure--Affidavit contained misstatements of fact, partial presentation of law, unnecessary narrative and ill-founded conclusions--Search warrants invalid on their face as they did not comply with s. 487 of Criminal Code--Accused's rights under s. 8 of Charter violated--Crown appeal dismissed--Canadian Charter of Rights and Freedoms, s. 8--Criminal Code, R.S.C. 1985, c. C-46, s. 487 --Radiocommunication Act, R.S.C. 1985, c. R-2, s. 9(1)(c).

The respondents openly sold "direct to home" ("DTH") satellite systems with access cards that could decode United States DTH satellite programming signals. The police obtained three search warrants which were executed at the respondents' business premises. Police seized electronic systems and devices intended for private and Canadian broadcasting reception; most of the respondents' documents; a surveillance video recording of the police execution of the warrant; third party electronic goods being repaired at the respondents' stores; all of the office computers; a box containing files with solicitor-client correspondence relating to a civil action; employee records; unopened mail; money; and other items unrelated to the nature of the charges. The respondents were charged with violating ss. 9 and 10(1)(b) of the Radiocommunication Act. They successfully applied to quash the warrants, for an order for the return of the seized property and for a declaration that their right to be secure against unreasonable search or seizure was violated under s. 8 of the Canadian Charter of Rights and Freedoms. The motions judge found that the affidavit sworn in support of the issuance of the warrants did not make full, fair and frank disclosure and that the search warrants were invalid. He also found that the search warrants disclosed no offence known to law. The Crown appealed.

Held, the appeal should be dismissed.

The seizure and detention of business records caused significant financial hardship to the respondents and would ultimately have put them out of business if their property were not returned. At the time the application for prerogative relief was brought, the Crown had not provided any disclosure and a date for the preliminary inquiry had not been set. Even on the date of judgment in the application, there was no approaching trial date. In the circumstances, it would not have been appropriate for the motions judge to defer all issues concerning the validity of the search warrants to the trial court for determination.

In order for a search warrant to be issued, there must be reasonable grounds to believe that the search will afford evidence of an offence under the Criminal Code or another Act of Parliament. Section 9(1)(c) of the Radiocommunication Act is ambiguous. The weight of authority supports the interpretation that it is not an offence in Canada to subscribe to foreign satellite programming. As s. 9(1)(c) is ambiguous, an interpretation favourable to the accused should be adopted. The motions judge was correct in determining that the offence in this case was not one known to law.

The affiant of the Information to obtain the search warrants started out with 11 paragraphs copied from an Information prepared by another officer. Those paragraphs had nothing to do with the police investigation relating to the respondents. The affiant cited two cases favourable to his interpretation of the law and omitted a case against his interest which was contained in the precedent which he copied. The Information contained misstatements of fact and ill-founded conclusions. The affiant did not make full, fair and frank disclosure to the issuing justice. This failure deprived the justice of his right to assess all of the circumstances in deciding whether it was appropriate to issue the warrant. The usable contents of the search warrant failed to satisfy the statutory grounds for issuing the warrant.

The warrants were also invalid on their face for failure to comply with s. 487 of the Criminal Code. The warrants purported to authorize the search and seizure of "things . . . that are being sought as evidence in respect of the commission, suspected commission or intended commission of an offence against the Radiocommunication Act . . .". The warrant was issued pursuant to s. 487(1)(b) of the Criminal Code. That section limits a search to "evidence with respect to the commission of an offence". In authorizing a search for evidence of the "suspected or intended commission" of an offence, the warrants exceeded the authority prescribed in s. 487.

APPEAL from an order quashing search warrants.

Bell Expressvu Ltd. Partnership v. Rex (2000), 2000 BCCA 493, 79 B.C.L.R. (3d) 250, 191 D.L.R. (4th) 662, [2000] 9 W.W.R. 205 (B.C.C.A.); R. v. Thériault, [2000] J.Q. No. 3094, consd Cases referred to Church of Scientology and R. (No. 4), Re (1985), 1985 3615 (ON SC), 17 C.C.C. (3d) 499 (Ont. H.C.J.); ExpressVu Inc. v. NII Norsat International Inc. (1997), 1997 6386 (FCA), 141 F.T.R. 240n, 222 N.R. 213, 81 C.P.R. (3d) 345, [1997] F.C.J. No. 1563 (C.A.), affg 1997 6357 (FC), [1998] 1 F.C. 245, 134 F.T.R. 264; 65302 British Columbia Ltd. v. Canada, 1999 639 (SCC), [1999] 3 S.C.R. 804, 69 B.C.L.R. (3d) 201, 179 D.L.R. (4th) 577, 248 N.R. 216, [2000] 1 W.W.R. 195, 99 D.T.C. 5799; Marcotte v. Canada (Deputy Attorney General) (1974), 1974 1 (SCC), [1976] 1 S.C.R. 108, 19 C.C.C. (2d) 257, 3 N.R. 613, 51 D.L.R. (3d) 259 (sub nom. Marcotte, ex parte); R. v. Beacock, [2000] O.J. No. 4300; R. v. Budd (2000), 2000 17014 (ON CA), 150 C.C.C. (3d) 108 (Ont. C.A.); R. v. Ereiser, 1997 11293 (SK QB), [1997] S.J. No. 276 (Q.B.); R. v. Gregory Électronique Inc., [2000] J.Q. No. 4923; R. v. Hosie (1996), 1996 450 (ON CA), 37 C.R.R. (2d) 97, 107 C.C.C. (3d) 385, 49 C.R. (4th) 1 (Ont. C.A.); R. v. Knibb (1997), 1997 22755 (AB CJ), 51 Alta. L.R. (3d) 294, [1997] 8 W.W.R. 115 (Prov. Ct.), affd (sub nom. R. v. Quality Electronics (Taber) Ltd. and Knibb), [1988] A.J. No. 628 (Q.B.) [Leave to appeal dismissed, Alta. C.A., April 15, 1999]; R. v. Krazy Krazy Audio Video Experts, [2000] O.J. No. 3942 (C.J.); R. v. LeBlanc, [1997] N.S.J. No. 476 (S.C.); R. v. Love, 1997 22877 (MB QB), [1997] M.J. No. 109 (Q.B.); R. v. Mac, 2001 24177 (ON CA), [2001] O.J. No. 375 (C.A.); R. v. McIntosh, 1995 121 (SCC), [1995] 1 S.C.R. 686, 21 O.R. (3d) 797n, 1995 124 (SCC), 178 N.R. 161, 95 C.C.C. (3d) 481, 36 C.R. (4th) 171; R. v. Paré, 1987 1 (SCC), [1987] 2 S.C.R. 618, 45 D.L.R. (4th) 546, 80 N.R. 272, 38 C.C.C. (3d) 97, 60 C.R. (3d) 346; R. v. S.D.S. Satellite Inc. & Claude Difazio (October 31, 2000) Laval, No. 540-73-000055-980 (C.Q.); R. v. Scullion and Callan, [2001] J.Q. No. 324 (C.Q. (Crim. Div.)); R. v. Zevallos (1987), 1987 169 (ON CA), 22 O.A.C. 76, 32 C.R.R. 373, 37 C.C.C. (3d) 79, 59 C.R. (3d) 153 (C.A.); Rizzo & Rizzo Shoes Ltd., Re, 1998 837 (SCC), [1998] 1 S.C.R. 27, 36 O.R. (3d) 418n, 154 D.L.R. (4th) 193, 221 N.R. 241, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 C.L.L.C. 210-006 (sub nom. Ontario Ministry of Labour v. Rizzo & Rizzo Shoes Ltd., Adrien v. Ontario Ministry of Labour) Statutes referred to Broadcasting Act, S.C. 1991, c. 11 Canadian Charter of Rights and Freedoms, s. 8 Criminal Code, R.S.C. 1985, c. C-46, s. 487 Radiocommunication Act, R.S.C. 1985, c. R-2, ss. 2 [as am. S.C. 1991, c. 11, s. 81(2)], 3(3), 9, 10(1) Authorities referred to House of Commons Debates (September 19, 1988) at pp. 19398-99 House of Commons Debates (September 27, 1988) at pp. 19679-81 House of Commons Debates (December 4, 1990) at p. 16257 House of Commons Debates (July 19, 1998) at p. 17746 Sullivan, R., Driedger on the Construction of Statutes, 3d ed. (Toronto: Butterworths, 1994)

D.D. Graham Reynolds, Q.C., for appellant. Alan D. Gold and Maureen J. McGuire, for respondents.

The judgment of the court was delivered by

WEILER J.A.: --

I. Overview

[1] The appellant, the Attorney General of Canada, appeals from the Orders of the motions judge, dated September 8 and 11, 2000, in which he quashed three warrants to search the business premises of the respondents and ordered all evidence seized under the warrants forthwith returned.

[2] The Attorney General of Canada challenges the quashing of the search warrants on the following three grounds:

1. That the motions judge ought not to have entertained the application to quash the warrants but ought to have deferred all issues to the trial court for determination;

2. That the motions judge did not employ the proper test in reviewing the warrants; and

3. That the motions judge erred in determining that no underlying offence existed at law.

For the reasons that follow, I would reject the appellant's submissions and uphold the decision of the motions judge.

II. The Facts

[3] Dawn Branton is a businesswoman in the town of Lindsay. She is the sole shareholder and officer of the corporate respondent, Tech Electronics and Electronics Plus. She is in the business of selling electronic goods, including the sale of television satellite systems that receive programming signals directly from a satellite transmitting source. These systems are most commonly used to view a wide range of televised programming signals, most of which originate from the United States. This "direct to home" ("DTH") satellite reception requires a small satellite dish and a decoder box to decode satellite signals.

[4] The Canadian Radio and Television Commission ("CRTC") licenses two providers in Canada to distribute DTH encrypted satellite programming signals. Subscribers purchase the necessary receiving satellite dish, the receiving box, and an access card to decode the signals. The access card is activated by DTH providers for a monthly or annual fee.

[5] The same DTH systems sold in Canada are also sold in the U.S. but are sold with different access cards to decode signals targeted to U.S. subscribers by U.S. DTH providers. Because satellite signals tend to impinge territorial boundaries, many U.S. DTH signals are received in Canada. U.S. DTH providers are not licensed to transmit signals into Canada and do not sell their services to individuals or businesses in Canada. For potential Canadian subscribers to obtain access to U.S. DTH signals, U.S. distributors require a U.S. address.

[6] The respondents sold DTH satellite systems with access cards that could decode U.S. DTH satellite programming signals. These systems were openly sold in the respondents' stores located on main streets in the town of Lindsay, and are sold openly by other merchants across Canada. The respondents arranged for purchasers of their DTH systems to subscribe to the U.S. service by providing a billing address in the U.S. so that they could pay for and receive the U.S. DTH signals.

[7] Three warrants were obtained on November 8, 1999 upon the Informations of Royal Canadian Mounted Police ("RCMP") Constable Mervin Lane ("Lane") and were executed the next day at the business premises and warehouse of Tech Electronics, and the business premises of Electronics Plus. All three Informations were virtually identical. Lane testified that certain portions sworn by him were copied from an Information sworn by Corporal Brian Johnson ("Johnson") in another case. (On September 28, 1999, however, before Lane used portions of Johnson's Information, the Crown consented to an order quashing Johnson's Information.)

[8] On November 10, 1999, police seized 320 complete satellite systems, 286 receivers and 96 satellite dishes. The breadth of the warrants was over-encompassing. The RCMP seized electronic systems and devices intended for private and Canadian broadcasting reception; most of the respondents' documents; a surveillance video recording of the police execution of the warrant (an item that was omitted from the police report); third party electronic goods being repaired at the respondents' stores; all of the office computers; a box containing files with solicitor-client correspondence relating to a civil action; employee records; unopened mail; money; and other items unrelated to the nature of the charges.

[9] On November 12, 1999 the respondents were charged with one count of violating the provisions of ss. 9 and 10(1)(b) of the Radiocommunication Act, R.S.C. 1985, c. R-2 ("RCA") and a further count of theft of satellite signals under the Criminal Code, R.S.C. 1985, c. C-46 (which was later withdrawn by the Crown). The relevant portions of the RCA provide:

2. In this act,

"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.

"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.

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.

[10] On December 10, 1999 the respondents brought an application (1) to quash the warrants; (2) for the return of the seized property; and (3) for a declaration made that the respondents' rights under s. 8 of the Canadian Charter of Rights and Freedoms had been violated. The respondents were successful on all three grounds. The motions judge found that the search warrants were invalid. The affidavit sworn in support of the issuance of the warrants did not make full, fair and frank disclosure. In supplementary reasons, the motions judge held that the search warrant disclosed no offence known to law. He quashed the warrants.

III. Analysis

1. Should the motions judge have deferred all issues concerning the validity of the search warrants to the trial court for determination?

[11] This ground of appeal does not require a detailed analysis. The search warrant executed by the RCMP resulted in a massive and unnecessarily over-inclusive seizure of the respondents' inventory. The seizure and the detention of business records caused significant financial hardship and would have ultimately put the respondents out of business if their property were not returned.

[12] At the time the application for prerogative relief was brought, the Crown had not provided any disclosure and a date for the preliminary inquiry had not been set. Even on September 8, 2000, the date of judgment in this application, there was no approaching trial date that would have dealt with the search and seizure issues.

[13] The motions judge was correct in his September 8 reasons, [2000] O.J. No. 3323 when he stated at para. 56:

Here the application was brought to obtain the return of the property seized. Further, is this not a case where the interests of justice clearly indicate the advantage of seeking a prerogative remedy. Was it necessary to succeed in a prosecution of Branton for allegedly breaching s. 9(1)(c) and s. 10(1)(b) of the RCA to seize many hundreds of thousands of dollars of merchandise including, I believe, perfectly legal-for-sale merchandise thereby effectively putting her out of business before any finding of guilt. . . . Would it not have been less intrusive and equally effective to have had an RCMP undercover officer or agent simply purchase alleged illegal-for-sale merchandise from her store and then charge her with the offence and obtain a verdict on the issue before effectively putting her out of business and, I should think, exposing her to a significant financial loss.

[14] The Crown's case against the respondents was not dependent on the admissibility of the property seized pursuant to the search warrant. Prerogative relief is available to an applicant for the return of seized property, particularly where, as here, the overall interests of justice favour the granting of relief prior to trial: R. v. Zevallos (1987), 1987 169 (ON CA), 37 C.C.C. (3d) 79 at pp. 86-87, 22 O.A.C. 76 (C.A.). This was a proper case for the motions judge to deal with these issues and not defer them to the trial court for determination.

2. Did the motions judge employ the proper test in reviewing the warrants?

[15] In order to issue a search warrant the issuing judge must be satisfied by affidavit that certain minimum statutory conditions have been met. There must be reasonable grounds to believe that the search will afford evidence of an offence under the Criminal Code or Act of Parliament: see s. 487(1)(b).

(a) Reasonable grounds to believe that a crime has been committed

[16] One of the requirements for the issuance of a search warrant is that the search will provide evidence with respect to an offence known to law.

[17] The motions judge heard the application on June 26 and July 31, 2000. He released his reasons for judgment on September 8, followed by supplementary reasons on September 11 ([2000] O.J. No. 3325). In his reasons released on September 8, the motions judge stated at para. 27:

Needless to say, the case law is in extreme conflict which could be regarded as a message to the Government of Canada that the law needs to be clarified so as to save Canadians, like the applicants and seemingly many others, the business losses and legal costs incurred to make answer to the charges laid by the RCMP seeking to enforce a poorly-worded quasi- criminal provision in the RCA. If the Government of Canada wants to prohibit Canadians from receiving satellite signals from any source other than those which it approves of, then the Government should say so clearly so Canadians will be aware that receiving unauthorized signals will be treated as an offence.

[18] On September 11, 2000, the motions judge released his supplementary reasons after considering a B.C. Court of Appeal decision in Bell Expressvu Ltd. Partnership v. Rex (2000), 2000 BCCA 493, 191 D.L.R. (4th) 662, 79 B.C.L.R. (3d) 250 (C.A.). The B.C. Court of Appeal considered the interpretation of s. 9(1)(c) of the RCA and concluded that the section was unclear and suggested a clearer law would be needed to prohibit Canadians from receiving satellite television signals from other jurisdictions. The motions judge adopted the B.C. Court of Appeal's reasons as persuasive and concluded that a further ground existed for quashing the search warrants: the respondents' business activity was not being carried on contrary to law.

[19] The appellant submits that this determination was erroneous. The appellant submits that the wording of s. 9(1)(c) of the RCA is not ambiguous and that the plain wording of the legislation, when read in context and with a purposive approach, imposes an absolute bar on the reception of signals from other jurisdictions. The majority judgment of Finch J.A. of the B.C. Court of Appeal rejected this argument at paras. 39-43 per Huddart J.A.:

Section 9(1)(c) is directed at regulation of the recipient, but, with respect, I am unable to see in the section anything that suggests the regulation is intended to apply to foreign signals. As the learned chambers judge said at (2000), 2000 BCCA 493, 191 D.L.R. (4th) 662 at para. 18 it would have been easy enough for Parliament to choose language prohibiting the reception of encrypted subscription program signals no matter where they originated. But it did not do so. It chose to regulate in respect only of signals sent by "lawful distributors" or in other words, those authorized under Canadian legislation.

The plaintiff also pointed to the words in the definition of "subscription program signal" as a radio communication intended for receipt "in Canada or elsewhere" as evidence of a legislative intention to prohibit reception of an encrypted subscription program signal originating outside Canada. However, the fact that a subscription program signal originating outside Canada was intended for reception outside Canada, does not avoid the requirement in s. 9(1)(c) that the decoding of such signals is only unlawful if it is done without the authorization of a lawful distributor.

It is also, in my view, important to remember that this legislation bears penal consequences. Section 10(1)(b) of the RCA makes it an offence to facilitate the activity proscribed in s. 9(1)(c). The offence is punishable by fine or imprisonment. If there is any ambiguity in s. 9(1)(c) it must therefore be interpreted narrowly: see R. v. McIntosh, 1995 124 (SCC), [1995] 1 S.C.R. 686, and Marcotte v. Deputy Attorney General of Canada, 1974 1 (SCC), [1976] 1 S.C.R. 108, 51 D.L.R. (3d) 259.

The appellant's interpretation of the section would include conduct not clearly prohibited by the language of the section, and would extend the ambit of the offence to decoding foreign encrypted subscription program signals originating outside Canada. Language clearly creating such an offence is not used in the statute. The scope of the offence created should not be enlarged by implication or by reading in.

In my respectful view, these considerations are sufficient to conclude that the learned chambers judge did not err in his interpretation of the section, and that the appeal should therefore be dismissed.

[20] The weight of authority supports the B.C. Court of Appeal's interpretation of s. 9 of the RCA, that it is not an offence in Canada to subscribe to foreign satellite programming: R. v. LeBlanc, [1997] N.S.J. No. 476 (S.C.) at paras. 14-16 ; R. v. Ereiser, 1997 11293 (SK QB), [1997] S.J. No. 276 (Q.B.) at paras. 19-20; R. v. Scullion and Callan, [2001] J.Q. No. 324 (C.Q. (Crim. Div.)); R. v. Love, 1997 22877 (MB QB), [1997] M.J. No. 109 (Q.B.) at paras. 55-57, 67; R. v. Krazy Krazy Audio Video Experts, [2000] O.J. No. 3942 at paras. 10-12 (C.J.); R. v. Thériault, [2000] J.Q. No. 3094 at paras. 32-33; R. v. Gregory Electronique Inc., [2000] J.Q. No. 4923 at paras. 29-30.

[21] Other decisions have, however, held that s. 9 of the RCA should be interpreted as providing an absolute prohibition against the decoding of encrypted subscription program signals unless they emanate from a lawful distributor in Canada and that the distributor authorizes decoding of the signal. These decisions have concluded that the intention, object, and scheme of the regulatory regime for encrypted subscription programming signals are to ensure the maintenance of a distinctive Canadian broadcasting industry: R. v. Knibb, 1997 22755 (AB CJ), [1997] 8 W.W.R. 115 at p. 126, 51 Alta. L.R. (3d) 294 (Prov. Ct.), affd (sub nom. R. v. Quality Electronics (Taber) Ltd. and Knibb), [1988] A.J. No. 628 (Q.B.) (leave to appeal dismissed, Alta. C.A., April 15, 1999); Bell ExpressVu, supra, at para. 49 (per Huddart J.A., dissenting). The reasoning in Knibb, supra, was adopted in ExpressVu Inc. v. NII Norsat International Inc., 1997 6357 (FC), [1998] 1 F.C. 245, 134 F.T.R. 264, affd (1997), 222 N.R. 213, [1997] F.C.J. No. 1563 (C.A.).

[22] The Supreme Court has recognized [See Note 1 at end of document] that the modern, contextual approach to statutory interpretation is as set out in Driedger on the Construction of Statutes, 3d ed. (Toronto: Butterworths, 1994) at p. 131:

There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning.

[23] With this approach in mind, the purpose of the legislation, gleaned from Parliament, as evidenced from Parliamentary debates and committee transcripts regarding the Broadcasting Act, S.C. 1991, c. 11, leads to the conclusion that the law was never intended to prevent Canadians from receiving television programming from the U.S.: see Appendix A for relevant excerpts.

[24] To further verify Parliament's intention, it is necessary to look at the French version of the wording in s. 9(1)(c) of the RCA. The French wording of the section was considered in R. v. Thériault, supra, and R. v. S.D.S. Satellite Inc. & Claude Difazio (unreported decision of Court of Quebec, District of Laval, Dufour J.C.Q., October 31, 2000, No. 540-73-000055-980). The French version of s. 9(1) reads:

Il est interdit:

(c) de décoder, sans l'autorisation de leur distributeur légitime ou en contravention avec celle-ci, un signal d'abonnement ou une alimentation réseau.

[25] In Thériault, the court noted that the word "leur" is defined as a possessive adjective and connotes possession by several persons. This means that s. 9(1)(c) prohibits the decoding of a subscription programming signal without authorization from "their" lawful distributor. The court held that the English text, which provides that no person shall decode a subscription programming signal "otherwise than under and in accordance with an authorization from the lawful distributor of the signal or feed" is to the same effect. Had Parliament intended to provide for a total prohibition, it would have prohibited decoding of a subscription programming signal except in accordance with "an authorization from a lawful distributor of a signal or feed". The legislation does not prohibit the making available in Canada, without authorization of the lawful distributor, the content of foreign programs, but rather the decoding of the signal of lawful distributors without their authorization. (After writing its decision, the court in Thériault indicated it had had the benefit of the reasons of the B.C. Court of Appeal in Bell ExpressVu, supra, and that it agreed with the majority in that case.)

[26] In ascertaining Parliament's intention, the appellant submits that the court must look to the definition of "subscription programming signal" in s. 2 of the RCA. "[S]ubscription programming signal" is defined as "radio communication 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". The appellant submits that the wording "or elsewhere" denotes that signals arriving in Canada from foreign distributors are intended to be included in the regulatory scheme. I do not agree with this interpretation. The preferred interpretation is that the wording "or elsewhere" is limited to the type of situation contemplated in s. 3(3) of the RCA. That section states:

3(3) This Act applies within Canada and on board

(a) any ship, vessel or aircraft that is

(i) registered or licensed under an Act of Parliament, or

(ii) owned by, or under the direction or control of, Her Majesty in right of Canada or a province;

(b) any spacecraft that is under the direction or control of

(i) Her Majesty in right of Canada or a province,

(ii) a citizen or resident of Canada, or

(iii) a corporation incorporated or resident in Canada; and

(c) any platform, rig, structure or formation that is affixed or attached to land situated in the continental shelf of Canada.

The definition of "subscription programming signal" does not sustain the broad interpretation of the legislation put forward by the appellant.

[27] The fact that different courts across the country have arrived at different interpretations of the wording supports the conclusion that, at the very least, the wording of s. 9(1) (c) is ambiguous. The significant difference in the reach of the section becomes important in the meaning to be given to it. In the criminal context, ambiguity must be resolved by choosing the interpretation that is most favourable to the accused: See Marcotte v. Canada (Deputy Attorney General) (1974), 1974 1 (SCC), [1976] 1 S.C.R. 108, 19 C.C.C. (2d) 257 at p. 115 S.C.R., pp. 261-62 C.C.C.; R. v. Paré, 1987 1 (SCC), [1987] 2 S.C.R. 618, 38 C.C.C. (3d) 97 at pp. 629-30 S.C.R., p. 106 C.C.C.; and R. v. McIntosh, 1995 124 (SCC), [1995] 1 S.C.R. 686, 95 C.C.C. (3d) 481 at pp. 704-05 S.C.R., p. 495 C.C.C. These three cases were considered in R. v. Mac, 2001 24177 (ON CA), [2001] O.J. No. 375 (C.A.) by Doherty J.A. when he stated at paras. 25-26:

The principle identified in these three cases and countless others is justified on at least two grounds. Persons who are subject to the coercive and stigmatizing power of the criminal law are entitled to fair notice of the conduct which will subject them to that power. Where a crime is defined in ambiguous terms, fair notice is only given with respect to the conduct which is captured by each of the meanings which are reasonably available upon a reading of the statute: A. Ashworth, Principles of Criminal Law [2d ed. (Oxford: Clarendon Press, 1995) at pp. 76-78].

The second justification underlying the principle arises out of our commitment to individual liberty, particularly where the criminal law power is engaged. Canadian society operates on the basis that individuals are free to do as they choose, subject to constitutionally permissible limits on that liberty imposed by Parliament (and not the Courts). Where it is unclear whether Parliament has chosen to prohibit conduct by making it criminal, the commitment to individual liberty commands that the doubt be resolved in favour of the maintenance of individual liberty: D. Stuart, Canadian Criminal Law [3d ed. (Toronto: Carswell, 1995) at pp. 71-72].

[28] As s. 9(1)(c) of the RCA is ambiguous, I would adopt an interpretation that is favourable to the accused.

(b) The interests of justice

[29] Recently, Rosenberg J.A. commented on the test for review of a search warrant in R. v. Budd (2000), 2000 17014 (ON CA), 150 C.C.C. (3d) 108 (Ont. C.A.) at paras. 14, 15 and 16 as follows:

Parliament has not explicitly provided for a review of the sufficiency of the warrant. An application for the review of the warrant may, nevertheless, be made to either the judge who granted the warrant or another judge of the court: R. v. Wilson (1983), 1983 35 (SCC), 9 C.C.C. (3d) 97 (S.C.C.) at 123. In a proper case the judge may set aside the warrant.

In R. v. Garofoli (1990), 1990 52 (SCC), 60 C.C.C. (3d) 161 (S.C.C.) at 188, Sopinka J. described the grounds upon which a reviewing court may set aside a wiretap authorization:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

He subsequently held that this test also applied to a review of search warrants: R. v. Grant (1993), 1993 68 (SCC), 84 C.C.C. (3d) 173 (S.C.C.) at 195. . . .

[Emphasis in original]

[30] Language in a search warrant that is so careless, filled with inaccuracies, or [reliant] on ritualistic phrases that it masks the true state of affairs and deprives a judicial officer of the opportunity to fairly assess whether the requirements for the issuance of a warrant have been met strikes at the core of the administration of justice: R. v. Hosie (1996), 1996 450 (ON CA), 107 C.C.C. (3d) 385 at pp. 398-400, 37 C.R.R. (2d) 97 (Ont. C.A.). If, after cross-examination of the affiant in support of the application for the warrant, there remains no basis upon which the authorizing judge could have granted the warrant, this will amount to a defect in jurisdiction and certiorari to quash the warrant will issue: R. v. Hosie, supra, and Re Church of Scientology and R. (No. 4) (1985), 1985 3615 (ON SC), 17 C.C.C. (3d) 499 at p. 500 ff. (Ont. H.C.J.).

[31] Lane's Information started out with 11 paragraphs ("the template") copied from an Information prepared by Cpl. Johnson. The template was found to be defective when it was originally sworn by Johnson and when it was further relied upon in R. v. Beacock, [2000] O.J. No. 4300. The template advises that "the theft of telecommunication signals" in the satellite television industry is "a relatively new area". However, Lane's Information excluded one paragraph from the Johnson template that referred to case law contradicting the RCMP's opinion. The motions judge was very critical of Lane's Information. The following excerpts from the motions judge's September 8 reasons [at paras. 37-39, 43] make up the substance of the motions judge's ruling on this point:

Constable Lane's affidavit leaves off at paragraph 11 citing ExpressVu Inc. v. NII Norsat International Inc., [1998] 1 F.C. 245 (T.D.). In cross-examination, Constable Lane was not sure what the state of the case law was when he prepared his affidavit, but had he even looked at the decision in ExpressVu v. Norsat, he would have seen cited R. v. Ereiser (1997), 156 Sask. R. 71 (Q.B.), a decision rejecting the interpretation of s. 9(1)(c) and 10(1)(b) advocated by the authorities. No mention was made of R. v. LeBlanc [[1997] N.S.J. No. 476 (S.C.)] as Corporal Johnson did in his affidavit. No mention was made of R. v. Love [1997 22877 (MB QB), [1997] M.J. No. 109 (Man. Q.B.)]. Is this full, frank and fair disclosure as the case law requires? I think not. Is reference to a decision on a motion for summary judgment in a civil action full, frank and fair disclosure? Again, I think not. In paragraph 9, Constable Lane cited R. v. Knibb [1997 22755 (AB CJ), [1997] 8 W.W.R. 115 (Alta. Prov. Ct.)], a decision favouring the view of the police authorities. Yet had Constable Lane looked at R. v. Knibb, he would have seen reference to LeBlanc.

This is not to say that the police authorities are required to know every decided case on point, but when an affiant cites two favourable cases and deliberately omits a case against his interest which is contained in the precedent which he is copying, then the logical inference is the disclosure is one-sided and designed to persuade the reviewing Justice to see matters his way.

Further, paragraphs 1 to 11 inclusive have nothing to do with the police investigation relating to Branton. Counsel for the respondent would have the court disregard all eleven paragraphs and treat them as "Preamble", to use his word. It is more than evident that no Justice of the Peace reading these paragraphs would regard them as preamble, but rather statements of fact applying to Branton. Paragraphs 2 and 3 use the word "theft"; paragraph 5 says: "This investigation concerns the theft of . . ."; paragraph 6 says: "It is illegal . . ."; and paragraph 7 says "These particular access cards . . .". Surely, these are statements of fact required to lay the foundation to enable the Justice of the Peace to conclude that there indeed does exist reasonable grounds to believe that an offence has been committed.

There was a lengthy exchange over the content of paragraph 7 but the up-shot of the exchange was that the entire paragraph dealing with "access cards" was totally irrelevant to Branton who was not dealing with "access cards". Yet the thrust of the paragraph is to inform the J.P. that Branton, on reasonable grounds, was in possession of stolen property, which was not at all the position of the RCMP as evident in the two counts subsequently charged. Also, the statement that "Internal investigations by NDS Americas suggest . . ." is misleading since this paragraph was simply copied from Corporal Johnson's precedent and it seems Johnson deleted it from his affidavit. The paragraph also states ". . . anyone who is reprogramming these cards . . . would be defrauding the American providers". The question was then asked "There is nothing in the Information that indicates my client was re-programming these cards to rip off American providers, is there sir?" Answer: "No, that's correct."

At paras. 44-52 the motions judge continued with a critical examination of Lane's Information and cross examination. At para. 52, he stated:

I believe the law concerning the content of the affidavit filed in support of the application for a search warrant is that the affiant must provide full, frank and fair disclosure of the material facts which will enable the reviewing Justice of the Peace to objectively and independently conclude that there is a "credibly based probability" that an offence has been committed and that the requested search and seizure will afford evidence to substantiate the alleged offence. Clearly that requires that the affiant preferably stick to statements of fact and keep the narrative and conclusion of law to an absolute minimum, should they be present at all. . . .

He concluded at para. 53:

In my view, the information provided to the Justice of the Peace was not full nor frank nor fair. There were misstatements of fact. There was a partial presentation of the law. There was far too much unnecessary narrative. There were ill-founded conclusions. All with the result that the Justice of the Peace was led to exceed his jurisdiction in authorizing the search warrants.

[32] A further basis on which the motions judge appears to have quashed the warrant appears in para. 56 of his reasons when he asked rhetorically:

Would it not have been less intrusive and equally effective to have had an RCMP undercover officer or agent simply purchase alleged illegal-for-sale merchandise from her store and then charge her with the offence and obtain a verdict on the issue before effectively putting her out of business and, I should think, exposing her to a significant financial loss.

[33] The appellant submits that the motions judge reviewing the search warrant did not state the appropriate legal test and did not apply it. The appellant further submits that the errors in the information presented to the authorizing judge would not lead to an automatic vitiation of the warrant and that what remained of the warrant was sufficient for authorization.

[34] The legal test for review of the search warrant is not an issue of dispute. It is whether sufficient reliable information remains to sustain the warrant: Budd, supra, at paras. 16-21. While the motions judge did not expressly state the legal test for review, he considered the appropriate factors. I would agree with the motions judge that the affiant failed to provide full, frank and fair disclosure to the justice of the peace issuing the warrant. This failure deprived the Justice of the Peace of his right to assess all of the circumstances in deciding whether it was appropriate to issue the warrant. The trial judge's decision to quash the warrant implies that the usable contents of the search warrant failed to satisfy the statutory grounds for issuing the warrant. I would agree.

(c) Facial invalidity

[35] An additional ground for quashing the warrants that was argued before the motions judge was whether the search warrants were invalid on their face for failure to comply with s. 487 of the Criminal Code. The search warrants purport to authorize the search and seizure of "things . . . that are being sought as evidence in respect of the commission, suspected commission or intended commission of an offence against the Radiocommunication Act. . . ." [Emphasis added]. The warrant was issued pursuant to s. 487(1)(b) of the Criminal Code. That section limits a search to "evidence with respect to the commission of an offence". In authorizing a search for evidence of the "suspected or intended commission" of an offence, the warrants exceeded the authority prescribed in s. 487.

[36] While the motions judge did not comment on this submission, it appears that the warrant was also invalid on its face.

[37] The motions judge properly quashed the warrants on review. Inasmuch as I would decide this appeal in the respondents' favour, I do not consider it necessary to address the Charter issue that was raised with respect to freedom of expression in s. 2(b).

IV. Conclusion

[38] In summary, s. 9(1)(c) of the RCA is ambiguous. Parliament's intention is not sufficiently clear to warrant the use of the coercive powers of the criminal law to punish individuals and companies engaged in the reception of DTH satellite programming signals from foreign countries. The content of foreign programming is not prohibited. It is the decoding of the signal that is of concern. The wording of the French version of the legislation suggests that the prohibition is not absolute and does not apply to foreign distributors. The justification for the principle that ambiguity in criminal legislation is to be resolved by choosing the interpretation most favourable to the accused applies to this case. As a result, I would hold that the motions judge was correct in determining that the offence in this case was not one known to law. The motions judge was also correct in concluding that the other requirements for the issuance of the warrants were not met.

[39] For these reasons I would dismiss the appeal.

V. Costs

[40] The respondent seeks an order for the full costs of the application below and on this appeal. The motion for costs which was filed before the motions judge was not heard as a result of the filing of this appeal. The respondent submits that having regard to the seriousness of the Charter violation of the appellant's right to be free from unreasonable search and seizure and the conduct of the Crown throughout the proceedings, such an order is appropriate.

[41] The real misconduct here was the overseizure of the respondent's goods, not the conduct of the litigation by the Crown. The motion and the appeal raise important legal issues and the Crown was entitled to pursue these issues. The remedy for the overseizure of the respondent's goods is a civil action for damages. Accordingly, while I would dismiss the appeal, I would not award costs against the Crown.

Appeal dismissed.

APPENDIX A

On July 19, 1988, the Minister of Communications, the Honourable Flora MacDonald, stated the goal of the proposed legislation:

This Bill does not seek to limit choice and does not restrict choices . . .

I want to make it very clear that this legislation does not erect barriers against programming that is not Canadian . . .

Commons Debates, July 19, 1998, p. 17746

On September 19, 1988, Sheila Finestone, the Opposition critic, proposed an amendment (motion number 45) to broaden the application of the Act by modifying a definition as follows:

Carried on in whole or in part within Canada, included the transmission of a broadcasting service wherever it may be originated to a member of the public in Canada, directly or indirectly where such transmission involves a contractual relationship with a member of the public, or with a distribution undertakings serving a member of the public.

Commons Debates, September 19, 1988, p. 19398

In the course of explaining the reasons for the proposed amendment, she stated:

The fact that the U.S. service may not have a business presence in Canada does not preclude the government from taking steps against the marketers or distributors of the service who generally operate in Canada.

The proposed amendment does not actually prohibit U.S. services from operating in Canada. However it would require them to obtain a C.R.T.C. license for the first time.

Commons Debates, September 19, 1988, p. 19399

This proposed modification was defeated and did not become law.

On September 27, 1988, Ms. Finestone noted that:

Elsewhere the response states that the government's policy is not to restrict access to foreign services . . .

It will lay the basis in Canadian law for allowing all American broadcasters who desire it to extend their reach into Canada.

The . . . absolute refusal by the Government to include in Bill C-136 any legislative basis whatsoever for limiting their access to Canada is a sure recipe for the rapid erosion of Canada's own broadcasting system.

Since the Government has stated explicitly that it is opposed in principle to any limits at all on the entry of foreign broadcasting into Canada . . .

Commons Debates, September 27, 1988, pp. 19679-81

2fOn December 4, 1990, the Honourable Marcel Masse, Minister of Communications, stated:

The new Act is designed to increase Canadian choices, not to restrict them. Technological advances including direct broadcasting from high powered satellites to which my Honourable friend referred, have made available new services over which the government and the C.R.T.C. technically have no control.

In the past my Honourable friend has suggested that foreign services be licenced by the C.R.T.C. I should point out that no Canadian laws regarding licensing can apply outside Canada.

Commons Debates, December 4, 1990, p. 16257

Notes

Note 1: See 65302 British Columbia Ltd. v. Canada., 1999 639 (SCC), [1999] 3 S.C.R. 804, 179 D.L.R. (4th) 577: Interpretation of the Income Tax Act, R.S.C 1985, c. 1 (5th Suppl.), s. 18(1)(a), (b), regarding whether levies, fines and penalties may be deducted as business expenses from a taxpayer's income; Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1988] 1 S.C.R. 27, 154 D.L.R. (4th) 193: Interpretation of the Employment Standards Act, R.S.O. 1980, c. 137, ss. 7(5), 40(1), (7), 40a, Employment Standards Amendment Act, 1981, S.O. 1981, c. 22, s. 2(3), and Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 121(1), to determine whether former employees of a bankrupt employer are entitled to claim termination and serverance payments.