Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42

Bell ExpressVu Limited Partnership Appellant

v.

Richard Rex, Richard Rex, c.o.b. as ‘Can-Am Satellites’,

and c.o.b. as ‘Can Am Satellites’ and c.o.b. as

‘CanAm Satellites’ and c.o.b. as ‘Can Am Satellite’ and

c.o.b. as ‘Can Am Sat’ and c.o.b. as ‘Can-Am Satellites Digital

Media Group’ and c.o.b. as ‘Can-Am Digital Media Group’

and c.o.b. as ‘Digital Media Group’, Anne Marie Halley

a.k.a. Anne Marie Rex, Michael Rex a.k.a. Mike Rex,

Rodney Kibler a.k.a. Rod Kibler, Lee-Anne Patterson,

Michelle Lee, Jay Raymond, Jason Anthony, John Doe 1 to 20,

Jane Doe 1 to 20 and any other person or persons

found on the premises or identified as working at the

premises at 22409 McIntosh Avenue, Maple Ridge,

British Columbia, who operate or work for

businesses carrying on business under the name

and style of ‘Can-Am Satellites’, ‘Can Am Satellites’,

‘CanAm Satellites’, ‘Can Am Satellite’, ‘Can Am Sat’,

‘Can-Am Satellites Digital Media Group’, ‘Can-Am Digital

Media Group’, ‘Digital Media Group’, or one or more of them Respondents

and

The Attorney General of Canada, the Canadian Motion

Picture Distributors Association, DIRECTV, Inc., the

Canadian Alliance for Freedom of Information and Ideas,

and the Congres Iberoamericain du Canada Interveners

Indexed as: Bell ExpressVu Limited Partnership v. Rex

Neutral citation: 2002 SCC 42.

File No.: 28227.

2001: December 4; 2002: April 26.

Present: L’Heureux-Dubé, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for british columbia

Communications law -- Radiocommunications -- Direct-to-home distribution of television programming -- Decoding in Canada of encrypted signals originating from foreign satellite distributor -- Whether s. 9(1)(c) of Radiocommunication Act prohibits decoding of all encrypted satellite signals, with a limited exception, or whether it bars only unauthorized decoding of signals that emanate from licensed Canadian distributors -- Radiocommunication Act, R.S.C. 1985, c. R-2, s. 9(1).

Statutes -- Interpretation -- Principles -- Contextual approach -- Grammatical and ordinary sense -- “Charter values” to be used as an interpretive principle only in circumstances of genuine ambiguity.

Appeals -- Constitutional questions -- Factual record necessary for constitutional questions to be answered.

The appellant engages in the distribution of direct-to-home (DTH) television programming and encrypts its signals to control reception. The respondents sell U.S. decoding systems to Canadian customers that enable them to receive and watch U.S. DTH progamming. They also provide U.S. mailing addresses to their customers who do not have one, since the U.S. broadcasters will not knowingly authorize their signals to be decoded by persons outside the United States. The appellant, as a licensed distribution undertaking, brought an action in the British Columbia Supreme Court, pursuant to ss. 9(1) and 18(1) of the Radiocommunication Act, requesting in part an injunction prohibiting the respondents from assisting resident Canadians in subscribing to and decoding U.S. DTH programming. Section 9(1)(c) enjoins the decoding of encrypted signals without the authorization of the “lawful distributor of the signal or feed”. The chambers judge declined to grant the injunctive relief. A majority of the Court of Appeal held that there is no contravention of s. 9(1)(c) where a person decodes unregulated signals such as those broadcast by the U.S. DTH companies, and dismissed the appellant’s appeal.

Held: The appeal should be allowed. Section 9(1)(c) of the Act prohibits the decoding of all encrypted satellite signals, with a limited exception.

It is necessary in every case for the court charged with interpreting a provision to undertake the preferred contextual and purposive interpretive approach before determining that the words are ambiguous. This requires reading the words of the Act in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament. It is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids, including other principles of interpretation such as the strict construction of penal statutes and the “Charter values” presumption.

When the entire context of s. 9(1)(c) is considered, and its words are read in their grammatical and ordinary sense in harmony with the legislative framework in which the provision is found, there is no ambiguity and accordingly no need to resort to any of the subsidiary principles of statutory interpretation. Because the Radiocommunication Act does not prohibit the broadcasting of subscription programming signals (apart from s. 9(1)(e), which forbids their unauthorized retransmission within Canada) and only concerns decrypting that occurs in Canada or other locations contemplated in s. 3(3), this does not give rise to any extra-territorial exercise of authority. Parliament intended to create an absolute bar on Canadian residents’ decoding encrypted programming signals. The only exception to this prohibition occurs where authorization is acquired from a distributor holding the necessary legal rights in Canada to transmit the signal and provide the required authorization. The U.S. DTH distributors in the present case are not “lawful distributors” under the Act. This interpretation of s. 9(1)(c) as an absolute prohibition with a limited exception accords well with the objectives set out in the Broadcasting Act and complements the scheme of the Copyright Act.

The constitutional questions stated in this appeal are not answered because there is no Charter record permitting this Court to address the stated questions. A party cannot rely upon an entirely new argument that would have required additional evidence to be adduced at trial. “Charter values” cannot inform the interpretation given to s. 9(1)(c) of the Radiocommunication Act, for these values are to be used as an interpretive principle only in circumstances of genuine ambiguity. A blanket presumption of Charter consistency could sometimes frustrate true legislative intent, contrary to what is mandated by the preferred approach to statutory construction, and wrongly upset the dialogic balance among the branches of governance. Where a statute is unambiguous, courts must give effect to the clearly expressed legislative intent and avoid using the Charter to achieve a different result.

Cases Cited

Not followed: R. v. Love (1997), 1997 22877 (MB QB), 117 Man. R. (2d) 123; R. v. Ereiser (1997), 1997 11293 (SK QB), 156 Sask. R. 71; R. v. LeBlanc, [1997] N.S.J. No. 476 (QL); R. v. Thériault, [2000] R.J.Q. 2736, aff’d Sup. Ct. Drummondville, No. 405-36-000044-003, June 13, 2001; R. v. Gregory Électronique Inc., [2000] Q.J. No. 4923 (QL), aff’d [2001] Q.J. No. 4925 (QL); R. v. S.D.S. Satellite Inc., C.Q. Laval, No. 540-73-000055-980, October 31, 2000; R. v. Branton (2001), 2001 8535 (ON CA), 53 O.R. (3d) 737; referred to: Canada (Attorney General) v. Mossop, 1993 164 (SCC), [1993] 1 S.C.R. 554; R. v. Open Sky Inc., [1994] M.J. No. 734 (QL), aff’d (1995), 106 Man. R. (2d) 37, leave to appeal ref’d (1996), 1996 18107 (MB CA), 110 Man. R. (2d) 153; R. v. King, [1996] N.B.J. No. 449 (QL), rev’d (1997), 1997 9531 (NB CA), 187 N.B.R. (2d) 185; R. v. Knibb (1997), 1997 22755 (AB PC), 198 A.R. 161, aff’d [1998] A.J. No. 628 (QL); ExpressVu Inc. v. NII Norsat International Inc., 1997 6357 (FC), [1998] 1 F.C. 245, aff’d (1997), 222 N.R. 213; WIC Premium Television Ltd. v. General Instrument Corp. (2000), 272 A.R. 201, 2000 ABQB 628; Canada (Procureure générale) v. Pearlman, 2001 8993 (QC CQ), [2001] R.J.Q. 2026; Ryan v. 361779 Alberta Ltd. (1997), 1997 24703 (AB PC), 208 A.R. 396; R. v. Scullion, 2001 17268 (QC CQ), [2001] R.J.Q. 2018; Stubart Investments Ltd. v. The Queen, 1984 20 (SCC), [1984] 1 S.C.R. 536; Québec (Communauté urbaine) v. Corp. Notre-Dame de Bon-Secours, 1994 58 (SCC), [1994] 3 S.C.R. 3; Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27; R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688; R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, 2002 SCC 3; R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56; Stoddard v. Watson, 1993 59 (SCC), [1993] 2 S.C.R. 1069; Pointe-Claire (City) v. Quebec (Labour Court), 1997 390 (SCC), [1997] 1 S.C.R. 1015; Marcotte v. Deputy Attorney General for Canada, 1974 1 (SCC), [1976] 1 S.C.R. 108; R. v. Goulis (1981), 1981 1642 (ON CA), 33 O.R. (2d) 55; R. v. Hasselwander, 1993 90 (SCC), [1993] 2 S.C.R. 398; R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53; Westminster Bank Ltd. v. Zang, [1966] A.C. 182; CanadianOxy Chemicals Ltd. v. Canada (Attorney General), 1999 680 (SCC), [1999] 1 S.C.R. 743; Quebec (Attorney General) v. Carrières Ste-Thérèse Ltée, 1985 35 (SCC), [1985] 1 S.C.R. 831; Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 687 (SCC), [1999] 2 S.C.R. 203; Bisaillon v. Keable, 1983 26 (SCC), [1983] 2 S.C.R. 60; Perka v. The Queen, 1984 23 (SCC), [1984] 2 S.C.R. 232; Idziak v. Canada (Minister of Justice), 1992 51 (SCC), [1992] 3 S.C.R. 631; R. v. Gayle (2001), 2001 4447 (ON CA), 54 O.R. (3d) 36, leave to appeal to S.C.C. refused, [2002] 1 S.C.R. vii; Moysa v. Alberta (Labour Relations Board), 1989 55 (SCC), [1989] 1 S.C.R. 1572; Danson v. Ontario (Attorney General), 1990 93 (SCC), [1990] 2 S.C.R. 1086; Baron v. Canada, 1993 154 (SCC), [1993] 1 S.C.R. 416; R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668; Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342; RWDSU v. Dolphin Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573; Cloutier v. Langlois, 1990 122 (SCC), [1990] 1 S.C.R. 158; R. v. Salituro, 1991 17 (SCC), [1991] 3 S.C.R. 654; R. v. Golden, [2001] 3 S.C.R. 679, 2001 SCC 83; R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., [2002] 1 S.C.R. 156, 2002 SCC 8; Hills v. Canada (Attorney General), 1988 67 (SCC), [1988] 1 S.C.R. 513; Slaight Communications Inc. v. Davidson, 1989 92 (SCC), [1989] 1 S.C.R. 1038; R. v. Zundel, 1992 75 (SCC), [1992] 2 S.C.R. 731; R. v. Nova Scotia Pharmaceutical Society, 1992 72 (SCC), [1992] 2 S.C.R. 606; R. v. Lucas, 1998 815 (SCC), [1998] 1 S.C.R. 439; Symes v. Canada, 1993 55 (SCC), [1993] 4 S.C.R. 695; Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670; Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493.

Statutes and Regulations Cited

Broadcasting Act, Direction to the CRTC (Ineligibility of Non-Canadians), SOR/96-192.

Broadcasting Act, S.C. 1991, c. 11, ss. 2(1) “broadcasting”, “broadcasting undertaking”, “distribution undertaking”, (2) [rep. & sub. 1993, c. 38, s. 81], (3), 3.

Canadian Charter of Rights and Freedoms, ss. 1, 2(b).

Copyright Act, R.S.C. 1985, c. C-42, ss. 21 [rep. 1994, c. 47, s. 59; ad. 1997, c. 24, s. 14], 31(2) [rep. c. 10 (4th Supp.), s. 7; ad. 1988, c. 65, s. 63; s. 28.01 renumbered as s. 31, 1997, c. 24, s. 16].

Interpretation Act, R.S.C. 1985, c. I-21, ss. 10, 12.

Radiocommunication Act, R.S.C. 1985, c. R-2, ss. 2, “broadcasting”, “encrypted” [ad. 1991, c. 11, s. 81], “lawful distributor” [idem], “radiocommunication” or “radio”, “subscription programming signal” [idem], 3(3)(a), (b) [rep. & sub. 1989, c. 17, s. 4], (c) [idem; am. 1996, c. 31, s. 94], 5(1)(a), 9(1)(c) [ad. 1989, c. 17, s. 6, am. 1991, c. 11, s. 83], (e) [ad. 1991, c. 11, s. 83], 10(1)(b) [ad. 1989, c. 17, s. 6], (2.1) [ad. 1991, c. 11, s. 84], (2.5) [idem], 18(1) [idem, s. 85], (6) [idem].

Rules of the Supreme Court of Canada, SOR/83-74, Rule 32.

Authors Cited

Canadian Oxford Dictionary. Edited by Katherine Barber. Toronto: Oxford University Press, 1998, "a".

Crane, Brian A., and Henry S. Brown. Supreme Court of Canada Practice 2000. Scarborough, Ont.: Thomson Professional Publishing Canada, 1999.

Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.

Eliadis, F. Pearl, and Stuart C. McCormack. “Vanquishing Wizards, Pirates and Musketeers: The Regulation of Encrypted Satellite TV Signals” (1993), 3 M.C.L.R. 211.

Handa, Sunny, et al. Communications Law in Canada, loose-leaf ed. Toronto: Butterworths, 2000 (including Service Issues 2001).

Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994.

Willis, John. “Statute Interpretation in a Nutshell” (1938), 16 Can. Bar Rev. 1.

APPEAL from a judgment of the British Columbia Court of Appeal (2000), 191 D.L.R. (4th) 662, 9 W.W.R. 205, 142 B.C.A.C. 230, 233 W.A.C. 230, 79 B.C.L.R. (3d) 250, [2000] B.C.J. No. 1803 (QL), 2000 BCCA 493, dismissing an appeal from a decision of the British Columbia Supreme Court, [1999] B.C.J. No. 3092 (QL), refusing to grant an injunction. Appeal allowed.

K. William McKenzie, Eugene Meehan, Q.C., and Jessica Duncan, for the appellant.

Alan D. Gold and Maureen McGuire, for all respondents except Michelle Lee.

Graham R. Garton, Q.C., and Christopher Rupar, for the intervener the Attorney General of Canada.

Roger T. Hughes, Q.C., for the intervener the Canadian Motion Picture Distributors Association.

Christopher D. Bredt, Jeffrey D. Vallis and Davit D. Akman, for the intervener DIRECTV, Inc.

Ian W. M. Angus, for the intervener the Canadian Alliance for Freedom of Information and Ideas.

Alan Riddell, for the intervener the Congres Iberoamerican du Canada.

The judgment of the Court was delivered by

IACOBUCCI J. —

I. Introduction

1 This appeal involves an issue that has divided courts in our country. It concerns the proper interpretation of s. 9(1)(c) of the Radiocommunication Act, R.S.C. 1985, c. R-2 (as am. by S.C. 1991, c. 11, s. 83). In practical terms, the issue is whether s. 9(1)(c) prohibits the decoding of all encrypted satellite signals, with a limited exception, or whether it bars only the unauthorized decoding of signals that emanate from licensed Canadian distributors.

2 The respondents facilitate what is generally referred to as “grey marketing” of foreign broadcast signals. Although there is much debate -- indeed rhetoric -- about the term, it is not necessary to enter that discussion in these reasons. Rather, the central issue is the much narrower one surrounding the above statutory provision: does s. 9(1)(c) operate on these facts to prohibit the decryption of encrypted signals emanating from U.S. broadcasters? For the reasons that follow, my conclusion is that it does have this effect. Consequently, I would allow the appeal.

II. Background

3 The appellant is a limited partnership engaged in the distribution of direct-to-home (“DTH”) television programming. It is one of two current providers licensed by the Canadian Radio-television and Telecommunications Commission (“CRTC”) as a DTH distribution undertaking under the Broadcasting Act, S.C. 1991, c. 11. There are two similar DTH satellite television distributors in the United States, neither of which possesses a CRTC licence. The door has effectively been shut on foreign entry into the regulated Canadian broadcast market since April 1996, when the Governor in Council directed the CRTC not to issue, amend or renew broadcasting licences for non-Canadian applicants (SOR/96-192). The U.S. companies are, however, licensed by their country’s Federal Communications Commission to broadcast their signals within that country. The intervener DIRECTV is the larger of these two U.S. companies.

4 DTH broadcasting makes use of satellite technology to transmit television programming signals to viewers. All DTH broadcasters own or have access to one or more satellites located in geosynchronous orbit, in a fixed position relative to the globe. The satellites are usually separated by a few degrees of Earth longitude, occupying “slots” assigned by international convention to their various countries of affiliation. The DTH broadcasters send their signals from land-based uplink stations to the satellites, which then diffuse the signals over a broad aspect of the Earth’s surface, covering an area referred to as a “footprint”. The broadcasting range of the satellites is oblivious to international boundaries and often extends over the territory of multiple countries. Any person who is somewhere within the footprint and equipped with the proper reception devices (typically, a small satellite reception dish antenna, amplifier, and receiver) can receive the signal.

5 The appellant makes use of satellites owned and operated by Telesat Canada, a Canadian company. Moreover, like every other DTH broadcaster in Canada and the U.S., the appellant encrypts its signals to control reception. To decode or unscramble the appellant’s signals so as to permit intelligible viewing, customers must possess an additional decoding system that is specific to the appellant: the decoding systems used by other DTH broadcasters are not cross-compatible and cannot be used to decode the appellant’s signals. The operational component of the decoding system is a computerized “smart card” that bears a unique code and is remotely accessible by the appellant. Through this device, once a customer has chosen and subscribed to a programming package, and rendered the appropriate fee, the appellant can communicate to the decoder that the customer is authorized to decode its signals. The decoder is then activated and the customer receives unscrambled programming.

6 The respondent, Richard Rex, carries on business as Can-Am Satellites. The other respondents are employees of, or independent contractors working for, Can-Am Satellites. The respondents are engaged in the business of selling U.S. DTH decoding systems to Canadian customers who wish to subscribe to the services offered by the U.S. DTH broadcasters, which make use of satellites owned and operated by U.S. companies and parked in orbital slots assigned to the U.S. The footprints pertaining to the U.S. DTH broadcasters are large enough for their signals to be receivable in much of Canada, but because these broadcasters will not knowingly authorize their signals to be decoded by persons outside of the U.S., the respondents also provide U.S. mailing addresses for their customers who do not already have one. The respondents then contact the U.S. DTH broadcasters on behalf of their customers, providing the customer’s name, U.S. mailing address, and credit card number. Apparently, this suffices to satisfy the U.S. DTH broadcasters that the subscriber is resident in the U.S., and they then activate the customer’s smart card.

7 In the past, the respondents were providing similar services for U.S. residents, so that they could obtain authorization to decode the Canadian appellant’s programming signals. The respondents were authorized sales agents for the appellant at the time, but because this constituted a breach of the terms of the agency agreement, the appellant unilaterally terminated the relationship.

8 The present appeal arises from an action brought by the appellant in the Supreme Court of British Columbia. The appellant, as a licensed distribution undertaking, commenced the action pursuant to ss. 9(1)(c) and 18(1) of the Radiocommunication Act. As part of the relief it sought, the appellant requested an injunction prohibiting the respondents from assisting resident Canadians in subscribing to and decoding U.S. DTH programming. The chambers judge hearing the matter declined to grant the injunctive relief, and directed that the trial of the matter proceed on an expedited basis. On appeal of the chambers judge’s ruling, Huddart J.A. dissenting, the Court of Appeal for British Columbia dismissed the appellant’s appeal.

9 The appellant applied for leave to appeal to this Court, which was granted on April 19, 2001, with costs to the applicant in any event of the cause ([2001] 1 S.C.R. vi). The Chief Justice granted the respondents’ subsequent motion to state constitutional questions on September 4, 2001.

III. Relevant Statutory Provisions

10 The Radiocommunication Act is one of the legislative pillars of Canada’s broadcasting framework. It and another of the pillars, the Broadcasting Act, provide context that is of central importance to this appeal. I set out the most pertinent provisions below. I will cite other provisions throughout the course of my reasons as they become relevant.

11

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

2. In this Act,

“broadcasting” means any radiocommunication in which the transmissions are intended for direct reception by the general public;

“encrypted” means treated electronically or otherwise for the purpose of preventing intelligible reception;

“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;

“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 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.

(2.1) Every person who contravenes paragraph 9(1)(c) or (d) is guilty of an offence punishable on summary conviction and is liable, in the case of an individual, to a fine not exceeding ten thousand dollars or to imprisonment for a term not exceeding six months, or to both, or, in the case of a corporation, to a fine not exceeding twenty-five thousand dollars.

(2.5) No person shall be convicted of an offence under paragraph 9(1)(c), (d) or (e) if the person exercised all due diligence to prevent the commission of the offence.

18. (1) Any person who

(a) holds an interest in the content of a subscription programming signal or network feed, by virtue of copyright ownership or a licence granted by a copyright owner,

(c) holds a licence to carry on a broadcasting undertaking issued by the Canadian Radio-television and Telecommunications Commission under the Broadcasting Act, or

may, where the person has suffered loss or damage as a result of conduct that is contrary to paragraph 9(1)(c), (d) or (e) or 10(1)(b), in any court of competent jurisdiction, sue for and recover damages from the person who engaged in the conduct, or obtain such other remedy, by way of injunction, accounting or otherwise, as the court considers appropriate.

(6) Nothing in this section affects any right or remedy that an aggrieved person may have under the Copyright Act.

Broadcasting Act, S.C. 1991, c. 11

2. (1) In this Act,

“broadcasting” means any transmission of programs, whether or not encrypted, by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus, but does not include any such transmission of programs that is made solely for performance or display in a public place;

“broadcasting undertaking” includes a distribution undertaking, a programming undertaking and a network;

“distribution undertaking” means an undertaking for the reception of broadcasting and the retransmission thereof by radio waves or other means of telecommunication to more than one permanent or temporary residence or dwelling unit or to another such undertaking;

(2) For the purposes of this Act, “other means of telecommunication” means any wire, cable, radio, optical or other electromagnetic system, or any similar technical system.

(3) This Act shall be construed and applied in a manner that is consistent with the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings.

3. (1) It is hereby declared as the broadcasting policy for Canada that

(a) the Canadian broadcasting system shall be effectively owned and controlled by Canadians;

(b) the Canadian broadcasting system, operating primarily in the English and French languages and comprising public, private and community elements, makes use of radio frequencies that are public property and provides, through its programming, a public service essential to the maintenance and enhancement of national identity and cultural sovereignty;

(d) the Canadian broadcasting system should

(i) serve to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada,

(ii) encourage the development of Canadian expression by providing a wide range of programming that reflects Canadian attitudes, opinions, ideas, values and artistic creativity, by displaying Canadian talent in entertainment programming and by offering information and analysis concerning Canada and other countries from a Canadian point of view,

(iii) through its programming and the employment opportunities arising out of its operations, serve the needs and interests, and reflect the circumstances and aspirations, of Canadian men, women and children, including equal rights, the linguistic duality and multicultural and multiracial nature of Canadian society and the special place of aboriginal peoples within that society, and

(iv) be readily adaptable to scientific and technological change;

(t) distribution undertakings

(i) should give priority to the carriage of Canadian programming services and, in particular, to the carriage of local Canadian stations,

(ii) should provide efficient delivery of programming at affordable rates, using the most effective technologies available at reasonable cost,

(iii) should, where programming services are supplied to them by broadcasting undertakings pursuant to contractual arrangements, provide reasonable terms for the carriage, packaging and retailing of those programming services, and

(iv) may, where the Commission considers it appropriate, originate programming, including local programming, on such terms as are conducive to the achievement of the objectives of the broadcasting policy set out in this subsection, and in particular provide access for underserved linguistic and cultural minority communities.

(2) It is further declared that the Canadian broadcasting system constitutes a single system and that the objectives of the broadcasting policy set out in subsection (1) can best be achieved by providing for the regulation and supervision of the Canadian broadcasting system by a single independent public authority.

Copyright Act, R.S.C. 1985, c. C-42

21. (1) Subject to subsection (2), a broadcaster has a copyright in the communication signals that it broadcasts, consisting of the sole right to do the following in relation to the communication signal or any substantial part thereof:

(a) to fix it,

(b) to reproduce any fixation of it that was made without the broadcaster’s consent,

(c) to authorize another broadcaster to retransmit it to the public simultaneously with its broadcast, and

(d) in the case of a television communication signal, to perform it in a place open to the public on payment of an entrance fee,

and to authorize any act described in paragraph (a), (b) or (d).

31. ...

(2) It is not an infringement of copyright to communicate to the public by telecommunication any literary, dramatic, musical or artistic work if

(a) the communication is a retransmission of a local or distant signal;

(b) the retransmission is lawful under the Broadcasting Act;

(c) the signal is retransmitted simultaneously and in its entirety, except as otherwise required or permitted by or under the laws of Canada; and

(d) in the case of the retransmission of a distant signal, the retransmitter has paid any royalties, and complied with any terms and conditions, fixed under this Act.

IV. Judgments Below

A. Supreme Court of British Columbia, [1999] B.C.J. No. 3092 (QL)

12 In a judgment delivered orally in chambers, Brenner J. (now C.J.B.C.S.C.) noted that there is conflicting jurisprudence on the interpretation of s. 9(1)(c). It was the chambers judge’s opinion, however, that the provision is unambiguous, and that it poses no contradiction to the remainder of the Radiocommunication Act. He interpreted s. 9(1)(c) as applying only to the theft of signals from “lawful distributors” in Canada, and not applying to the “paid subscription by Canadians to signals from distributors outside Canada” (para. 20). He reasoned (at paras. 18-19):

The offence in that section that was created by the language Parliament chose to use was the offence of stealing encrypted signals from distributors in Canada. In my view, if Parliament had intended in that section to make it an offence in Canada to decode foreign encrypted transmissions originating outside Canada as contended by the [appellant], it would have said so. In s. 9(1)(c) Parliament could have used language prohibiting the unauthorized decoding of all or any subscription programming in Canada. This, it chose not to do.

The interpretation of s. 9(1)(c) asserted by the [appellant] makes no distinction between those who subscribe and pay for services from non-resident distributors and those who steal the signals of lawful distributors in Canada. That interpretation would create a theft offence applicable to persons in Canada who are nonetheless paying for the services they receive. If Parliament had intended s. 9(1)(c) to apply to such conduct, it would have said so in clear language. In my view the quasi criminal provisions in the Radiocommunication Act should not be interpreted in this manner in the absence of such clear parliamentary language.

13 Brenner J. therefore refused to grant the injunctive relief sought by the appellant. He directed that the trial of the matter proceed on an expedited basis.

B. Court of Appeal for British Columbia (2000), 79 B.C.L.R. (3d) 250, [2000 BCCA 493](https://www.canlii.org/en/bc/bcca/doc/2000/2000bcca493/2000bcca493.html)

14 The majority of the Court of Appeal, in a judgment written by Finch J.A. (now C.J.B.C.), identified two divergent strands of case law regarding the proper interpretation of s. 9(1)(c). The majority also noted that judgments representing each side had found the provision to be unambiguous; in its assessment, though, “[l]egislation which can reasonably be said to bear two unambiguous but contradictory, interpretations must, at the very least, be said to be ambiguous” (para. 35). For this reason, and the fact that s. 9(1)(c) bears penal consequences, the majority held that the “narrower interpretation adopted by the chambers judge ... must ... prevail” (para. 35). Conflicting authorities aside, however, the majority was prepared to reach the same result through application of the principles of statutory construction.

15 Section 9(1)(c) enjoins the decoding of encrypted signals without the authorization of the “lawful distributor of the signal or feed” (emphasis added). The majority interpreted the legislator’s choice of the definite article “the”, underlined in the above phrase, to mean that the prohibition applies only “to signals broadcast by lawful distributors who are licensed to authorize decoding of that signal” (para. 36). In other words, “[i]f there is no lawful distributor for an encrypted subscription program signal in Canada, there can be no one licensed to authorize its decoding” (para. 36). Consequently, according to the majority, there is no contravention of s. 9(1)(c) where a person decodes unregulated signals such as those broadcast by the U.S. DTH companies.

16 The majority characterized s. 9(1)(c) as being clearly directed at regulation of the recipient rather than the distributor, but stated that Parliament had not chosen language that would prohibit the decoding of encrypted signals regardless of origin. Rather, in the majority’s view, Parliament elected to regulate merely in respect of signals transmitted by parties who are authorized by Canadian law to do so. Dismissing the appellant’s argument regarding the words “or elsewhere” in the definition of “subscription programming signal”, the majority held that “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” (para. 40).

17 Basing its reasons on these considerations, the majority held that it was unnecessary to address “the wider policy issues” or the issues arising from the Canadian Charter of Rights and Freedoms (para. 44). Finding no error in the chambers judge’s interpretation, the majority dismissed the appeal.

18 Dissenting, Huddart J.A. considered the text of s. 9(1)(c) in light of the definitions set out in s. 2, and concluded that Parliamentary intent was evident: the provision “simply render[s] unlawful the decoding in Canada of all encrypted programming signals ... regardless of their source or intended destination”, except where authorization is given by a person having the lawful right in Canada to transmit and authorize the decoding of the signals (para. 48). She stressed that the line of cases relied upon by the chambers judge “[a]t most ... provides support for a less inclusive interpretation of s. 9(1)(c) than its wording suggests on its face because it has penal consequences” (para. 54), and proceeded to set out a number of reasons for which these cases should not be followed.

19 For one, “the task of interpreting a statutory provision does not begin with its being typed as penal. The task of interpretation is a search for the intention of Parliament” (para. 55). As well, the more restrictive reading of s. 9(1)(c) “ignores the broader policy objective” of the governing regulatory scheme, this being “the maintenance of a distinctively Canadian broadcasting industry in a large country with a small population within the transmission footprint of arguably the most culturally assertive country in the world with a population ten times larger” (para. 49). Huddart J.A. also referred to the existence of copyright interests, and stated that “[i]t can reasonably be inferred that U.S. distributors have commercial or legal reasons apart from Canadian laws for not seeking a Canadian market. ... Yet only Canada can control the reception of foreign signals in Canada” (para. 50).

20 Huddart J.A. declined the respondents’ invitation to read s. 9(1)(c) in a manner that “respect[s] section 2(b) of the Charter” (para. 57), relying on Canada (Attorney General) v. Mossop, 1993 164 (SCC), [1993] 1 S.C.R. 554, in this regard. She then concluded (at para. 58):

In summary, I am not persuaded the line of cases on which the chambers judge relied establish the provision is ambiguous or capable of contradictory meanings. I do not consider courts have found two entirely different unambiguous meanings for the provision. The words of section 9(1)(c), taken alone, provide a clear basis for the determination of Parliament’s intention. That meaning is consistent with the purpose of the entire regulatory scheme in the context of the international copyright agreements, with the purpose of the Act within that scheme, and with the scheme of the Act itself. Those cases interpreting the provision differently have done so with the purpose of narrowing its application to avoid penal consequences of what Parliament clearly intended to have penal consequences, as at least one of the judges taking that view explicitly acknowledged in his reasons. In my view it takes a convoluted reading of the provision to produce the result reached by the court in R. v. Love [(1997), 1997 22877 (MB QB), 117 Man. R. (2d) 123 (Q.B.)], and the decisions that have followed it.

Huddart J.A. would have allowed the appeal and granted the declaration requested by the appellant.

V. Issues

21 This appeal raises three issues:

1. Does s. 9(1)(c) of the Radiocommunication Act create an absolute prohibition against decoding, followed by a limited exception, or does it allow all decoding, except for those signals for which there is a lawful distributor who has not granted its authorization?

2. Is s. 9(1)(c) of the Radiocommunication Act inconsistent with s. 2(b) of the Canadian Charter of Rights and Freedoms?

3. If the answer to the above question is “yes”, can the statutory provision be justified pursuant to s. 1 of the Charter?

VI. Analysis

A. Introduction

22 It is no exaggeration to state that s. 9(1)(c) of the federal Radiocommunication Act has received inconsistent application in the courts of this country. On one hand, there is a series of cases interpreting the provision (or suggesting that it might be interpreted) so as to create an absolute prohibition, with a limited exception where authorization from a lawful Canadian distributor is received: R. v. Open Sky Inc., [1994] M.J. No. 734 (QL) (Prov. Ct.), at para. 36, aff’d (1995), 106 Man. R. (2d) 37 (Q.B.) (sub nom. R. v. O'Connor), at para. 10, leave to appeal refused on other grounds (1996), 1996 18107 (MB CA), 110 Man. R. (2d) 153 (C.A.); R. v. King, [1996] N.B.J. No. 449 (QL) (Q.B.), at paras. 19-20, rev’d on other grounds (1997), 1997 9531 (NB CA), 187 N.B.R. (2d) 185 (C.A.) (sub nom. King v. Canada (Attorney General)); R. v. Knibb (1997), 1997 22755 (AB PC), 198 A.R. 161 (Prov. Ct.), aff’d [1998] A.J. No. 628 (QL) (Q.B.) (sub nom. R. v. Quality Electronics (Taber) Ltd.); ExpressVu Inc. v. NII Norsat International Inc., 1997 6357 (FC), [1998] 1 F.C. 245 (T.D.), aff’d (1997), 222 N.R. 213 (F.C.A.); WIC Premium Television Ltd. v. General Instrument Corp. (2000), 272 A.R. 201, 2000 ABQB 628, at para. 72; Canada (Procureure générale) v. Pearlman, 2001 8993 (QC CQ), [2001] R.J.Q. 2026 (C.Q.), at p. 2034.

23 On the other hand, there are a number of conflicting cases that have adopted the more restrictive interpretation favoured by the majority of the Court of Appeal for British Columbia in the case at bar: R. v. Love (1997), 1997 22877 (MB QB), 117 Man. R. (2d) 123 (Q.B.); R. v. Ereiser (1997), 1997 11293 (SK QB), 156 Sask. R. 71 (Q.B.); R. v. LeBlanc, [1997] N.S.J. No. 476 (QL) (S.C.); Ryan v. 361779 Alberta Ltd. (1997), 1997 24703 (AB PC), 208 A.R. 396 (Prov. Ct.), at para. 12; R. v. Thériault, [2000] R.J.Q. 2736 (C.Q.), aff’d Sup. Ct. Drummondville, No. 405-36-000044-003, June 13, 2001 (sub nom. R. v. D'Argy); R. v. Gregory Électronique Inc., [2000] Q.J. No. 4923 (QL) (C.Q.), aff’d [2001] Q.J. No. 4925 (QL) (Sup. Ct.); R. v. S.D.S. Satellite Inc., C.Q. Laval, No. 540-73-000055-980, October 31, 2000; R. v. Scullion, 2001 17268 (QC CQ), [2001] R.J.Q. 2018 (C.Q.); R. v. Branton (2001), 2001 8535 (ON CA), 53 O.R. (3d) 737 (C.A.).

24 As can be seen, the schism is not explained simply by the adoption of different approaches in different jurisdictions. Although the highest courts in British Columbia and Ontario have now produced decisions that bind the lower courts in those provinces to the restrictive interpretation, and although the Federal Court of Appeal has similarly bound the Trial Division courts under it to the contrary interpretation, the trial courts in Alberta, Manitoba, and Quebec have produced irreconcilable decisions. Those provinces remain without an authoritative determination on the matter. This appeal, therefore, places this Court in a position to harmonize the interpretive dissonance that is echoing throughout Canada.

25 In attempting to steer its way through this maze of cases, the Court of Appeal for British Columbia, in my respectful view, erred in its interpretation of s. 9(1)(c). In my view, there are five aspects of the majority’s decision that warrant discussion. First, it commenced analysis from the belief that an ambiguity existed. Second, it placed undue emphasis on the sheer number of judges who had disagreed as to the proper interpretation of s. 9(1)(c). Third, it did not direct sufficient attention to the context of the Radiocommunication Act within the regulatory régime for broadcasting in Canada, and did not consider the objectives of that régime, feeling that it was unnecessary to address these “wider policy issues”. Fourth, the majority did not read s. 9(1)(c) grammatically in accordance with its structure, namely, a prohibition with a limited exception. Finally, the majority of the court effectively inverted the words of the provision, such that the signals for which a lawful distributor could provide authorization to decode (i.e., the exception) defined the very scope of the prohibition.

B. Does Section 9(1)(c) of the Radiocommunication Act Create an Absolute Prohibition Against Decoding, Followed by a Limited Exception, or Does it Allow all Decoding, Except for Those Signals for Which There Is a Lawful Distributor who Has not Granted its Authorization?

(1) Principles of Statutory Interpretation

26 In Elmer Driedger’s definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983):

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

Driedger’s modern approach has been repeatedly cited by this Court as the preferred approach to statutory interpretation across a wide range of interpretive settings: see, for example, Stubart Investments Ltd. v. The Queen, 1984 20 (SCC), [1984] 1 S.C.R. 536, at p. 578, per Estey J.; Québec (Communauté urbaine) v. Corp. Notre-Dame de Bon-Secours, 1994 58 (SCC), [1994] 3 S.C.R. 3, at p. 17; Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, at para. 25; R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65, at para. 26; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 33, per McLachlin C.J.; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, 2002 SCC 3, at para. 27. I note as well that, in the federal legislative context, this Court’s preferred approach is buttressed by s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21, which provides that every enactment “is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”.

27 The preferred approach recognizes the important role that context must inevitably play when a court construes the written words of a statute: as Professor John Willis incisively noted in his seminal article “Statute Interpretation in a Nutshell” (1938), 16 Can. Bar Rev. 1, at p. 6, “words, like people, take their colour from their surroundings”. This being the case, where the provision under consideration is found in an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and the scheme of the Act are more expansive. In such an instance, the application of Driedger’s principle gives rise to what was described in R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56, at para. 52, as “the principle of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter”. (See also Stoddard v. Watson, 1993 59 (SCC), [1993] 2 S.C.R. 1069, at p. 1079; Pointe-Claire (City) v. Quebec (Labour Court), 1997 390 (SCC), [1997] 1 S.C.R. 1015, at para. 61, per Lamer C.J.)

28 Other principles of interpretation — such as the strict construction of penal statutes and the “Charter values” presumption — only receive application where there is ambiguity as to the meaning of a provision. (On strict construction, see: Marcotte v. Deputy Attorney General for Canada, 1974 1 (SCC), [1976] 1 S.C.R. 108, at p. 115, per Dickson J. (as he then was); R. v. Goulis (1981), 1981 1642 (ON CA), 33 O.R. (2d) 55 (C.A.), at pp. 59-60; R. v. Hasselwander, 1993 90 (SCC), [1993] 2 S.C.R. 398, at p. 413; R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53, at para. 46. I shall discuss the “Charter values” principle later in these reasons.)

29 29 What, then, in law is an ambiguity? To answer, an ambiguity must be “real” (Marcotte, supra, at p. 115). The words of the provision must be “reasonably capable of more than one meaning” (Westminster Bank Ltd. v. Zang, [1966] A.C. 182 (H.L.), at p. 222, per Lord Reid). By necessity, however, one must consider the “entire context” of a provision before one can determine if it is reasonably capable of multiple interpretations. In this regard, Major J.’s statement in CanadianOxy Chemicals Ltd. v. Canada (Attorney General), 1999 680 (SCC), [1999] 1 S.C.R. 743, at para. 14, is apposite: “It is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids” (emphasis added), to which I would add, “including other principles of interpretation”.

30 For this reason, ambiguity cannot reside in the mere fact that several courts -- or, for that matter, several doctrinal writers -- have come to differing conclusions on the interpretation of a given provision. Just as it would be improper for one to engage in a preliminary tallying of the number of decisions supporting competing interpretations and then apply that which receives the “higher score”, it is not appropriate to take as one’s starting point the premise that differing interpretations reveal an ambiguity. It is necessary, in every case, for the court charged with interpreting a provision to undertake the contextual and purposive approach set out by Driedger, and thereafter to determine if “the words are ambiguous enough to induce two people to spend good money in backing two opposing views as to their meaning” (Willis, supra, at pp. 4-5).

(2) Application to this Case

31 The interpretive factors laid out by Driedger need not be canvassed separately in every case, and in any event are closely related and interdependent (Chieu, supra, at para. 28). In the context of the present appeal, I will group my discussion under two broad headings. Before commencing my analysis, however, I wish to highlight a number of issues on these facts. First, there is no dispute surrounding the fact that the signals of the U.S. DTH broadcasters are “encrypted” under the meaning of the Act, nor is there any dispute regarding the fact that the U.S. broadcasters are not “lawful distributors” under the Act. Secondly, all of the DTH broadcasters in Canada and the U.S. require a person to pay “a subscription fee or other charge” for unscrambled reception. Finally, I note that the “encrypted network feed” portion of s. 9(1)(c) is not relevant on these facts and can be ignored for the purposes of analysis.

(a) Grammatical and Ordinary Sense

32 In its basic form, s. 9(1)(c) is structured as a prohibition with a limited exception. Again, with the relevant portions emphasized, it states that:

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;

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; [Emphasis added.]

The provision opens with the announcement of a broad prohibition (“No person shall”), follows by announcing the nature (“decode”) and object (“an encrypted subscription programming signal”) of the prohibition, and then announces an exception to it (“otherwise than under and in accordance with an authorization from the lawful distributor”). The French version shares the same four features, albeit in a modified order (see Provost C.Q.J. in Pearlman, supra, at p. 2031).

33 The forbidden activity is decoding. Therefore, as noted by the Court of Appeal, the prohibition in s. 9(1)(c) is directed towards the reception side of the broadcasting equation. Quite apart from the provenance of the signals at issue, where the impugned decoding occurs within Canada, there can be no issue of the statute’s having an extra-territorial reach. In the present case, the reception that the appellant seeks to enjoin occurs entirely within Canada.

34 The object of the prohibition is of central importance to this appeal. What is interdicted by s. 9(1)(c) is the decoding of “an encrypted subscription programming signal” (in French, “un signal d’abonnement”) (emphasis added). The usage of the indefinite article here is telling: it signifies “one, some [or] any” (Canadian Oxford Dictionary (1998), at p. 1). Thus, what is prohibited is the decoding of any encrypted subscription programming signal, subject to the ensuing exception.

35 The definition of “subscription programming signal” suggests that the prohibition extends to signals emanating from other countries. Section 2 of the Act defines that term as, “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” (emphasis added). I respectfully disagree with the respondents and Weiler J.A. in Branton, supra, at para. 26, “that the wording ‘or elsewhere’ is limited to the type of situation contemplated in s. 3(3)” of the Act. Section 3(3) reads:

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.

36 This provision is directed at an entirely different issue from that which is at play in the definition of “subscription programming signal”. Section 3(3) specifies the geographic scope of the Radiocommunication Act and all its constituent provisions, as is confirmed by the marginal note accompanying the subsection, which states “Geographical application”. To phrase this in the context of the present appeal, any person within Canada or on board any of the things enumerated in ss. 3(3)(a) through (c) could potentially be subject to liability for unlawful decoding under s. 9(1)(c); in this way, s. 3(3) addresses the “where” question. On the other hand, the definition of “subscription programming signal” provides meaning to the s. 9(1)(c) liability by setting out the class of signals whose unauthorized decoding will trigger the provision; this addresses the object of the prohibition, or the “what” question. These are two altogether separate issues.

37 Furthermore, it was not necessary for Parliament to include the phrase “or elsewhere” in the s. 2 definition if it merely intended “subscription programming signal” to be interpreted as radiocommunication intended for direct or indirect reception by the public on board any of the s. 3(3) vessels, spacecrafts or rigs. In my view, the words “or elsewhere” were not meant to be tautological. It is sometimes stated, when a court considers the grammatical and ordinary sense of a provision, that “[t]he legislator does not speak in vain” (Quebec (Attorney General) v. Carrières Ste-Thérèse Ltée, 1985 35 (SCC), [1985] 1 S.C.R. 831, at p. 838). Parliament has provided express direction to this effect through its enactment of s. 10 of the Interpretation Act, which states in part that “[t]he law shall be considered as always speaking”. In any event, “or elsewhere” (“ou ailleurs”, in French) suggests a much broader ambit than the particular and limited examples in s. 3(3), and I would be reticent to equate the two.

38 In my opinion, therefore, the definition of “subscription programming signal” encompasses signals originating from foreign distributors and intended for reception by a foreign public. Again, because the Radiocommunication Act does not prohibit the broadcasting of subscription programming signals (apart from s. 9(1)(e), which forbids their unauthorized retransmission within Canada) and only concerns decrypting that occurs in the s. 3(3) locations, this does not give rise to any extra-territorial exercise of authority. At this stage, what this means is that, contrary to the holdings of the chambers judge and the majority of the Court of Appeal in the instant case, Parliament did in fact choose language in s. 9(1)(c) that prohibits the decoding of all encrypted subscription signals, regardless of their origin, “otherwise than under and in accordance with an authorization from the lawful distributor of the signal or feed”. I shall now consider this exception.

39 The Court of Appeal relied upon the definite article found in this portion of s. 9(1)(c) (“the signal”), in order to support its narrower reading of the provision. Before this Court, counsel for the respondents submitted as well that the definite article preceding the words “lawful distributor” confirms that the provision “is only intended to operate where there is a lawful distributor”. Finally, the respondents draw to our attention the French language version of the provision, and particularly the word “leur” that modifies “distributeur légitime”: a number of cases considering the French version of s. 9(1)(c) have relied upon that word to arrive at the narrower interpretation (see the Court of Quebec judgments in Thériault, supra, at p. 2739; Gregory Électronique, supra, at paras. 24-26; and S.D.S. Satellite, supra, at p. 7. See also Branton, supra, at para. 25).

40 I do not agree with these opinions. The definite article “the” and the possessive adjective “leur” merely identify the party who can authorize the decoding in accordance with the exception (see Pearlman, supra, at p. 2032). Thus, while I agree with the majority of the Court of Appeal that “[i]f there is no lawful distributor for an encrypted subscription program signal in Canada, there can be no one licensed to authorize its decoding”, I cannot see how it necessarily follows that decoding unregulated signals “cannot therefore be in breach of the Radiocommunication Act” (par. 36). Such an approach would require one to read words from the exception into the prohibition, which is circular and incorrect. Again, as Provost C.Q.J. stated in Pearlman, supra, at p. 2031: [translation] “To seek the meaning of the exception at the outset, and thereafter to define the rule by reference to the exception, is likely to distort the meaning of the text and misrepresent the intention of its author.”

41 In my view, the definite articles are used in the exception portion of s. 9(1)(c) in order to identify from amongst the genus of signals captured by the prohibition (any encrypted subscription programming signal) that species of signals for which the rule is “otherwise”. Grammatically, then, the choice of definite and indefinite articles essentially plays out into the following rendition: No person shall decode any (indefinite) encrypted subscription programming signal unless, for the (definite) particular signal that is decoded, the person has received authorization from the (definite) lawful distributor. Thus, as might happen, if no lawful distributor exists to grant such authorization, the general prohibition must remain in effect.

42 Although I have already stated that the U.S. DTH distributors in the present case are not “lawful distributors” under the Act, I should discuss this term, because it is important to the interpretive process. Section 2 provides that a “lawful distributor” of an encrypted subscription programming signal is “a person who has the lawful right in Canada to transmit it and authorize its decoding”. In this connection, the fact that a person is authorized to transmit programming in another country does not, by that fact alone, qualify as granting the lawful right to do so in Canada. Moreover, the phrase “lawful right” (“légitimement autorisée”) comprehends factors in addition to licences granted by the CRTC. In defining “lawful distributor”, Parliament could have made specific reference to a person holding a CRTC licence (as it did in s. 18(1)(c)) or a Minister’s licence (s. 5(1)(a)). Instead, it deliberately chose broader language. I therefore agree with the opinion of Létourneau J.A. in the Federal Court of Appeal decision in Norsat, supra, at para. 4, that

[t]he concept of “lawful right” refers to the person who possesses the regulatory rights through proper licensing under the Act, the authorization of the Canadian Radio-television and Telecommunications Commission as well as the contractual and copyrights necessarily pertaining to the content involved in the transmission of the encrypted subscription programming signal or encrypted network feed.

As pointed out by the Attorney General of Canada, this interpretation means that even where the transmission of subscription programming signals falls outside of the definition of “broadcasting” under the Broadcasting Act (i.e., where the transmitted programming is “made solely for performance or display in a public place”) and no broadcasting licence is therefore required, additional factors must still be considered before it can be determined whether the transmitter of the signals is a “lawful distributor” for the purposes of the Radiocommunication Act.

43 In the end, I conclude that when the words of s. 9(1)(c) are read in their grammatical and ordinary sense, taking into account the definitions provided in s. 2, the provision prohibits the decoding in Canada of any encrypted subscription programming signal, regardless of the signal’s origin, unless authorization is received from the person holding the necessary lawful rights under Canadian law.

(b) Broader Context

44 Although the Radiocommunication Act is not, unfortunately, equipped with its own statement of purpose, it does not exist in a vacuum. The Act’s focus is upon the allocation of specified radio frequencies, the authorization to possess and operate radio apparatuses, and the technical regulation of the radio spectrum. The Act also places restrictions on the reception of and interference with radiocommunication, which includes encrypted broadcast programming signals of the sort at issue. S. Handa et al., Communications Law in Canada (loose-leaf), at p. 3.8, describe the Radiocommunication Act as one “of the three statutory pillars governing carriage in Canada”. These same authors note at p. 3.17 that:

The Radiocommunication Act embraces all private and public use of the radio spectrum. The close relationship between this and the telecommunications and broadcasting Acts is determined by the fact that telecommunications and broadcasting are the two principal users of the radioelectric spectrum.

45 The Broadcasting Act came into force in 1991, in an omnibus statute that also brought substantial amendments to the Radiocommunication Act, including the addition thereto of s. 9(1)(c). Its purpose, generally, is to regulate and supervise the transmission of programming to the Canadian public. Of note for the present appeal is that the definition of “broadcasting” in the Broadcasting Act captures the encrypted DTH programme transmissions at issue and that DTH broadcasters such as the appellant receive their licences under, and are subject to, that Act. The Broadcasting Act also enumerates 20 broad objectives of the broadcasting policy for Canada (in s. 3(1)(a) through (t)). The emphasis of the Act, however, is placed on broadcasting and not reception.

46 Ultimately, the Acts operate in tandem. On this point, I agree with the following passage from the judgment of LeGrandeur Prov. Ct. J. in Knibb, supra, at paras. 38-39, which was adopted by Gibson J. in the Federal Court, Trial Division decision in Norsat, supra, at para. 35:

The Broadcasting Act and the Radiocommunication Act must be seen as operating together as part of a single regulatory scheme. The provisions of each statute must accordingly be read in the context of the other and consideration must be given to each statute’s roll [sic] in the overall scheme. [Cite to R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 286.]

The addition of s. 9(1)(c), (d) and (e) and other sections to the Radiocommunication Act through the provisions of the Broadcasting Act, 1991 are supportive of that approach in my view. Subsections 9(1)(c), (d) and (e) of the Radiocommunication Act must be seen as part of the mechanism by which the stated policy of regulation of broadcasting in Canada is to be fulfilled.

47 Canada’s broadcasting policy has a number of distinguishing features, and evinces a decidedly cultural orientation. It declares that the radio frequencies in Canada are public property, that Canadian ownership and control of the broadcasting system should be a base premise, and that the programming offered through the broadcasting system is “a public service essential to the maintenance and enhancement of national identity and cultural sovereignty”. Sections 3(1)(d) and 3(1)(t) enumerate a number of specific developmental goals for, respectively, the broadcasting system as a whole and for distribution undertakings (including DTH distribution undertakings) in particular. Finally, s. 3(2) declares that “the Canadian broadcasting system constitutes a single system” best regulated and supervised “by a single independent public authority”.

48 In this context, one finds little support for the restrictive interpretation of s. 9(1)(c). Indeed, as counsel for the Attorney General of Canada argued before us, after consideration of the Canadian broadcasting policy Parliament has chosen to adopt, one may legitimately wonder

why would Parliament enact a provision like the restrictive interpretation? Why would Parliament provide for Canadian ownership, Canadian production, Canadian content in its broadcasting and then simply leave the door open for unregulated, foreign broadcasting to come in and sweep all of that aside? What purpose would have been served?

49 On the other hand, the interpretation of s. 9(1)(c) that I have determined to result from the grammatical and ordinary sense of the provision accords well with the objectives set out in the Broadcasting Act. The fact that DTH broadcasters encrypt their signals, making it possible to concentrate regulatory efforts on the reception/decryption side of the equation, actually assists with attempts to pursue the statutory broadcasting policy objectives and to regulate and supervise the Canadian broadcasting system as a single system. It makes sense in these circumstances that Parliament would seek to encourage broadcasters to go through the regulatory process by providing that they could only grant authorization to have their signal decoded, and thereby collect their subscription fees, after regulatory approval has been granted.

50 There is another contextual factor that, while not in any way determinative, is confirmatory of the interpretation of s. 9(1)(c) as an absolute prohibition with a limited exception. As I have noted above, the concept of “lawful right” in the definition of “lawful distributor” incorporates contractual and copyright issues. According to the evidence in the present record, the commercial agreements between the appellant and its various programme suppliers require the appellant to respect the rights that these suppliers are granted by the persons holding the copyright in the programming content. The rights so acquired by the programme suppliers permit the programmes to be broadcast in specific locations, being all or part of Canada. As such, the appellant would have no lawful right to authorize decoding of its programming signals in an area not included in its geographically limited contractual right to exhibit the programming.

51 In this way, the person holding the copyright in the programming can conclude separate licensing deals in different regions, or in different countries (e.g., Canada and the U.S.). Indeed, these arrangements appear typical of the industry: in the present appeal, the U.S. DTH broadcaster DIRECTV has advocated the same interpretation of s. 9(1)(c) as the appellant, in part because of the potential liability it faces towards both U.S. copyright holders and Canadian licencees due to the fact that its programming signals spill across the border and are being decoded in Canada.

52 I also believe that the reading of s. 9(1)(c) as an absolute prohibition with a limited exception complements the scheme of the Copyright Act. Sections 21(1)(c) and 21(1)(d) of the Copyright Act provide broadcasters with a copyright in the communication signals they transmit, granting them the sole right of retransmission (subject to the exceptions in s. 31(2)) and, in the case of a television communication signal, of performing it on payment of a fee. By reading s. 9(1)(c) as an absolute prohibition against decoding except where authorization is granted by the person with the lawful right to transmit and authorize decoding of the signal, the provision extends protection to the holders of the copyright in the programming itself, since it would proscribe the unauthorized reception of signals that violate copyright, even where no retransmission or reproduction occurs: see F. P. Eliadis and S. C. McCormack, “Vanquishing Wizards, Pirates and Musketeers: The Regulation of Encrypted Satellite TV Signals” (1993), 3 M.C.L.R. 211, at pp. 213-18. Finally, I note that the civil remedies provided for in ss. 18(1)(a) and 18(6) of the Radiocommunication Act both illustrate that copyright concerns are of relevance to the scheme of the Act, thus supporting the finding that there is a connection between these two statutes.

(c) Section 9(1)(c) as a “Quasi-Criminal” Provision

53 I wish to comment regarding the respondents’ argument regarding the penal effects that the “absolute prohibition” interpretation would bring to bear. Although the present case only arises in the context of a civil remedy the appellant is seeking under s. 18(1) of the Act (as a person who “has suffered loss or damage as a result of conduct that is contrary to paragraph 9(1)(c)”) and does not therefore directly engage the penal aspects of the Radiocommunication Act, the respondents direct our attention to ss. 10(1)(b) and 10(2.1). These provisions, respectively, create summary conviction offences for every person providing equipment for the purposes of contravening s. 9 and for every person who in fact contravenes s. 9(1)(c). Respondents’ counsel argued before us that, if s. 9(1)(c) is interpreted in the manner suggested by the appellant, “hundreds of thousands of Canadians can expect a knock on their door, because they will be in breach of the statute” and that “the effect of [the appellant’s] submissions is to criminalize subscribers even if they pay every cent to which DIRECTV is entitled”. The thrust of the respondents’ submission is that the presence of ss. 10(1)(b) and 10(2.1) in the Radiocommunication Act provides context that is important to the interpretation of s. 9(1)(c), and that this context militates in favour of the respondents’ position.

54 Section 9(1)(c) does have a “dual aspect”, in so far as it gives rise to both civil and criminal penalties. I am not, however, persuaded that this plays an important role in the interpretive process here. In any event, I do not think it correct to insinuate that the decision in this appeal will have the effect of automatically branding every Canadian resident who subscribes to and pays for U.S. DTH broadcasting services as a criminal. The penal offence in s. 10(1)(b) requires that circumstances “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” (emphasis added), and allows for a “lawful excuse” defence. Section 10(2.5) further provides that “[n]o person shall be convicted of an offence under paragraph 9(1)(c) ... if the person exercised all due diligence to prevent the commission of the offence”. Since it is neither necessary nor appropriate to pursue the meaning of these provisions absent the proper factual context, I refrain from doing so.

(d) Conclusion

55 After considering the entire context of s. 9(1)(c), and after reading its words in their grammatical and ordinary sense in harmony with the legislative framework in which the provision is found, I find no ambiguity. Rather, I can conclude only that Parliament intended to create an absolute bar on Canadian residents decoding encrypted programming signals. The only exception to this prohibition occurs where authorization is acquired from a distributor holding the necessary legal rights in Canada to transmit the signal and provide the required authorization. There is no need in this circumstance to resort to any of the subsidiary principles of statutory interpretation.

B. The Constitutional Questions

56 As I will discuss, I do not propose to answer the constitutional questions that have been stated in this appeal.

57 Rule 32 of the Rules of the Supreme Court of Canada, SOR/83-74, mandates that constitutional questions be stated in every appeal in which the constitutional validity or applicability of legislation is challenged, and sets out the procedural requirements to that end. As recognized by this Court, the purpose of Rule 32 is to ensure that the Attorney General of Canada, the attorneys general of the provinces, and the ministers of justice of the territories are alerted to constitutional challenges, in order that they may decide whether or not to intervene: Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 687 (SCC), [1999] 2 S.C.R. 203, at para. 49, per L’Heureux-Dubé J.; see also B. A. Crane and H. S. Brown, Supreme Court of Canada Practice 2000 (1999), at p. 253. Rule 32 also serves to advise the parties and other potential interveners of the constitutional issues before the Court.

58 On the whole, the parties to an appeal are granted “wide latitude” by the Chief Justice or other judge of this Court in formulating the questions to be stated: Bisaillon v. Keable, 1983 26 (SCC), [1983] 2 S.C.R. 60, at p. 71; Corbiere, supra, at para. 48. This wide latitude is especially appropriate in a case like the present, where the motion to state constitutional questions was brought by the respondents: generally, a respondent may advance any argument on appeal that would support the judgment below (Perka v. The Queen, 1984 23 (SCC), [1984] 2 S.C.R. 232, at p. 240; Idziak v. Canada (Minister of Justice), 1992 51 (SCC), [1992] 3 S.C.R. 631, at pp. 643-44, per Cory J.). Like many general rules, however, this one is subject to an exception. A respondent, like any other party, cannot rely upon an entirely new argument that would have required additional evidence to be adduced at trial: Perka, supra; Idziak, supra; R. v. Gayle (2001), 2001 4447 (ON CA), 54 O.R. (3d) 36 (C.A.), at para. 69, leave to appeal refused January 24, 2002, [2002] 1 S.C.R. vii.

59 In like manner, even where constitutional questions are stated under Rule 32, it may ultimately turn out that the factual record on appeal provides an insufficient basis for their resolution. The Court is not obliged in such cases to provide answers: Bisaillon, supra; Crane and Brown, supra, at p. 254. In fact, there are compelling reasons not to: while we will not deal with abstract questions in the ordinary course, “[t]his policy ... is of particular importance in constitutional matters” (Moysa v. Alberta (Labour Relations Board), 1989 55 (SCC), [1989] 1 S.C.R. 1572, at p. 1580; see also Danson v. Ontario (Attorney General), 1990 93 (SCC), [1990] 2 S.C.R. 1086, at p. 1099; Baron v. Canada, 1993 154 (SCC), [1993] 1 S.C.R. 416, at p. 452; R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, at para. 38, per McLachlin and Iacobucci JJ.). Thus, as Sopinka J. stated for the Court in Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342, at p. 357: “The procedural requirements of Rule 32 of the Supreme Court Rules are not designed to introduce new issues but to define with precision the constitutional points in issue which emerge from the record” (emphasis added).

60 Respondents’ counsel properly conceded during oral argument that there is no Charter record permitting this Court to address the stated questions. Rather, he argued that “Charter values” must inform the interpretation given to the Radiocommunication Act. This submission, inasmuch as it is presented as a stand alone proposition, must be rejected. Although I have already set out the preferred approach to statutory interpretation above, the manner in which the respondents would have this Court consider and apply the Charter warrants additional attention at this stage.

61 It has long been accepted that, where it will not upset the appropriate balance between judicial and legislative action, courts should apply and develop the rules of the common law in accordance with the values and principles enshrined in the Charter: RWDSU v. Dolphin Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573, at p. 603, per McIntyre J.; Cloutier v. Langlois, 1990 122 (SCC), [1990] 1 S.C.R. 158, at p. 184; R. v. Salituro, 1991 17 (SCC), [1991] 3 S.C.R. 654, at p. 675; R. v. Golden, [2001] 3 S.C.R. 679, 2001 SCC 83, at para. 86, per Iacobucci and Arbour JJ.; R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., [2002] 1 S.C.R. 156, 2002 SCC 8, at paras. 18-19. One must keep in mind, of course, that the common law is the province of the judiciary: the courts are responsible for its application, and for ensuring that it continues to reflect the basic values of society. The courts do not, however, occupy the same role vis-à-vis statute law.

62 Statutory enactments embody legislative will. They supplement, modify or supersede the common law. More pointedly, when a statute comes into play during judicial proceedings, the courts (absent any challenge on constitutional grounds) are charged with interpreting and applying it in accordance with the sovereign intent of the legislator. In this regard, although it is sometimes suggested that “it is appropriate for courts to prefer interpretations that tend to promote those [Charter] principles and values over interpretations that do not” (Sullivan, supra, at p. 325), it must be stressed that, to the extent this Court has recognized a “Charter values” interpretive principle, such principle can only receive application in circumstances of genuine ambiguity, i.e., where a statutory provision is subject to differing, but equally plausible, interpretations.

63 This Court has striven to make this point clear on many occasions: see, e.g., Hills v. Canada (Attorney General), 1988 67 (SCC), [1988] 1 S.C.R. 513, at p. 558, per L’Heureux-Dubé J.; Slaight Communications Inc. v. Davidson, 1989 92 (SCC), [1989] 1 S.C.R. 1038, at p. 1078, per Lamer J. (as he then was); R. v. Zundel, 1992 75 (SCC), [1992] 2 S.C.R. 731, at p. 771, per McLachlin J. (as she then was); R. v. Nova Scotia Pharmaceutical Society, 1992 72 (SCC), [1992] 2 S.C.R. 606, at p. 660; Mossop, supra, at pp. 581-82, per Lamer C.J.; R. v. Lucas, 1998 815 (SCC), [1998] 1 S.C.R. 439, at para. 66, per Cory J.; Mills, supra, at paras. 22 and 56; Sharpe, supra, at para. 33.

64 These cases recognize that a blanket presumption of Charter consistency could sometimes frustrate true legislative intent, contrary to what is mandated by the preferred approach to statutory construction. Moreover, another rationale for restricting the “Charter values” rule was expressed in Symes v. Canada, 1993 55 (SCC), [1993] 4 S.C.R. 695, at p. 752:

[T]o consult the Charter in the absence of such ambiguity is to deprive the Charter of a more powerful purpose, namely, the determination of a statute’s constitutional validity. If statutory meanings must be made congruent with the Charter even in the absence of ambiguity, then it would never be possible to apply, rather than simply consult, the values of the Charter. Furthermore, it would never be possible for the government to justify infringements as reasonable limits under s. 1 of the Charter, since the interpretive process would preclude one from finding infringements in the first place. [Emphasis in original.]

(See also Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670, at pp. 679-80, per Sopinka J.)

65 This last point touches, fundamentally, upon the proper function of the courts within the Canadian democracy. In Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493, at paras. 136-42, the Court described the relationship among the legislative, executive, and judicial branches of governance as being one of dialogue and mutual respect. As was stated, judicial review on Charter grounds brings a certain measure of vitality to the democratic process, in that it fosters both dynamic interaction and accountability amongst the various branches. “The work of the legislature is reviewed by the courts and the work of the court in its decisions can be reacted to by the legislature in the passing of new legislation (or even overarching laws under s. 33 of the Charter)” (Vriend, supra, at para. 139).

66 To reiterate what was stated in Symes, supra, and Willick, supra, if courts were to interpret all statutes such that they conformed to the Charter, this would wrongly upset the dialogic balance. Every time the principle were applied, it would pre-empt judicial review on Charter grounds, where resort to the internal checks and balances of s. 1 may be had. In this fashion, the legislatures would be largely shorn of their constitutional power to enact reasonable limits on Charter rights and freedoms, which would in turn be inflated to near absolute status. Quite literally, in order to avoid this result a legislature would somehow have to set out its justification for qualifying the Charter right expressly in the statutory text, all without the benefit of judicial discussion regarding the limitations that are permissible in a free and democratic society. Before long, courts would be asked to interpret this sort of enactment in light of Charter principles. The patent unworkability of such a scheme highlights the importance of retaining a forum for dialogue among the branches of governance. As such, where a statute is unambiguous, courts must give effect to the clearly expressed legislative intent and avoid using the Charter to achieve a different result.

67 It may well be that, when this matter returns to trial, the respondents’ counsel will make an application to have s. 9(1)(c) of the Radiocommunication Act declared unconstitutional for violating the Charter. At that time, it will be necessary to consider evidence regarding whose expressive rights are engaged, whether these rights are violated by s. 9(1)(c), and, if they are, whether they are justified under s. 1.

VII. Disposition

68 In the result, I would allow the appeal with costs throughout, set aside the judgment of the Court of Appeal for British Columbia, and declare that s. 9(1)(c) of the Radiocommunication Act creates a prohibition against all decoding of encrypted programming signals, followed by an exception where authorization is received from the person holding the lawful right in Canada to transmit and authorize decoding of the signal. No answer is given to the constitutional questions stated by order of the Chief Justice.

Appeal allowed with costs.

Solicitors for the appellant: Crawford, McKenzie, McLean & Wilford, Orillia and Lang Michener, Ottawa.

Solicitors for all the respondents, except Michelle Lee: Gold & Fuerst, Toronto.

Solicitor for the intervener the Attorney General of Canada: The Department of Justice, Ottawa.

Solicitors for the intervener the Canadian Motion Picture Distributors Association: Sim, Hughes, Ashton & McKay, Toronto.

Solicitors for the intervener DIRECTV, Inc.: Borden Ladner Gervais, Toronto.

Solicitor for the intervener the Canadian Alliance for Freedom of Information and Ideas: Ian W. M. Angus, Port Hope.

Solicitors for the intervener the Congres Iberoamerican du Canada: Soloway, Wright, Ottawa.