Quebec court ruling on satellite TV theft was “unsound,” says lawyer McKenzie

A lawyer actively involved in fighting the grey and black satellite TV signal market in the courts says the judge in a recent Quebec court ruling "seems to be confused." Bill McKenzie, a senior partner with Crawford, McKenzie, McLean, Wilford, Anderson & Duncan LLP, goes as far as to state that the ruling misleads Canadians. He also hopes that the Crown will appeal the decision that found that two sections of the Radiocommunication Act are unconstitutional, but that also suspended the ruling for a year so Parliament has time to complete its examination of the delivery of more ethnic channels in Canada (CCR Update, Oct. 29/04). "Hopefully, we’ll be off to the appeal courts. The industry is loudly encouraging the Crown to do that. This decision can’t be allowed to stand," McKenzie told Canadian Communications Reports. "If there is an appeal, we can intervene. There’s much more to know than what was brought out at that trial. Not all the facts came out." In a 100-page decision handed down from the Quebec court on October 28, Justice Danielle Côté declared sections 9(1)c and 10(1)b of the Radiocommunication Act that place key restrictions on the black and grey satellite TV markets to be unconstitutional. However, she suspended that declaration for a year, saying it would give Parliament time to complete its examination of the delivery of ethnic programming. In arriving at the decision, the court found that the current Canadian law on the subject was enacted without due regard for the rights of ethnic communities to receive programming in their own language. McKenzie calls the judge’s reasoning "unsound" and says the judge has "gone on the wrong tangent." He notes that in dealing with the accessibility of ethnic channels, the judge has turned to the wrong body. McKenzie notes that it isn’t the government, but the CRTC which regulates broadcasting, and hence controls which channels get licensed or approved for carriage in Canada. Therefore, any attack based on the Charter of Rights should be aimed at the CRTC, not at the government. "In my view, the Charter argument could only work in connection with a CRTC process. If, for example, an Italian broadcaster was refused entry into Canada, then it could appeal the CRTC decision to exclude it at that stage based on the charter," he explains. "Even if the government said we want 100 new ethnic channels in Canada by Friday, it’s would be the CRTC who would make the decision. The tangent that the judge has taken is that she has focused on the government to do something to increase the number of ethnic channels. But the CRTC is the gatekeeper, which has to take into consideration cultural imperatives and all the other considerations of the Broadcasting Act in deciding which channels can be distributed in Canada," he notes. McKenzie notes that the CRTC has no jurisdiction over the Radiocommunication Act, and that is not the act that controls the channels that are allowed to be distributed in Canada. "The decision draws far too broad a brush. And Canadians are being misled to believe that black and grey market activity is okay," he says, adding that the Quebec court decision doesn’t change the fact that the Supreme Court of Canada ruled them illegal in April 2002 (CCR Update, April 26/02). "Judges sometimes get themselves into situations where they need more background. Mr. Jacques D’Argy (one of two respondents in the case) wasn’t involved in the grey market. You have to get to the basics, which this is the black market and it’s stealing. It’s like saying you can walk into a movie theatre and watch the movie without paying. It’s a bit confused." McKenzie adds that there is virtually no grey market TV, where people set up illegal U.S. addresses and pay to receive the programming from providers such as DirecTV of the United States. "With the black market, money never reaches the United States. It’s stealing," he adds. If the judge was to allow the grey market on the basis of freedom of choice, then McKenzie says the judge should have made it clear that the black market is theft. "Any decision that encourages theft is a tragedy," he said. "This was not explored well. The decision throws the baby out with the bathwater." McKenzie is joined in his call for an appeal by the Coalition Against Satellite Signal Theft (CASST), a broad alliance that includes producers, broadcasters and distributors. CASST is urging Ottawa to launch an immediate appeal of the ruling at the Federal Court of Appeal. During a media conference call a day after the decision was released, CASST officials said the effect of the decision in the R c. Thériault case was to render the grey market legal in Canada, if it stands. "Open skies would mean the end of the Canadian broadcasting system," said Luc Perreault, the private broadcasters representative on CASST during the call. "I don’t believe the argument about free expression holds when people are receiving expression that the copyright holder doesn’t want them to receive…That’s the fundamental issue; it’s one of (broadcasting) rights," said CASST co-chair Chris Frank, who works for satellite TV distributor Bell ExpressVu. The judge’s decision appears tied to Parliamentary testimony earlier this year. In May, Standing Committee on Industry, Science and Technology, which was reviewing revisions to the Radiocommunication Act, proposed that a review panel be established to recommend ways to ensure that more foreign and third-language channels were available in Canada (CCR, May 21/04). During hearings, some ethnic groups had called on the government to legalize grey market television so that they could access third-language programming currently not available in Canada (CCR, May 6/04). The amendments to the act, however, were initially aimed at tightening the penalties contained in the act for those found guilty of trafficking in the grey and black TV signal market (CCR, Oct. 31/03). A panel was appointed by Canadian Heritage and its report on foreign third-language channels, Integration and Cultural Diversity, was submitted on September 27 to the CRTC as part of an ongoing CRTC process. The CRTC is examining whether or not it should change its policy on third-language services to facilitate the entry of more ethnic channels (CCR, Oct. 22/04).

Quebec court ruling on satellite TV theft was “unsound,” says lawyer McKenzie

Broadcast | November 8, 2004

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