Quebec court turns down charter argument in satellite TV signal theft case

A Quebec court has for the first time in a criminal case turned down arguments that the charter can be used to justify grey and black market TV signal theft. The Quebec Superior Court late last month released its decision overruling a lower court decision in which the judge found that certain provisions of the Radiocommunication Act were contrary to the Charter of Rights and Freedoms. The federal government appealed the decision (CCR, Dec. 6/04). "Why it’s so exciting is that every time (the TV signal pirates) have raised this in a civil thing, we’ve crushed them. They’ve run away from the fight before it came up and always said, ‘hee, hee, hee, they can’t come to criminal court.’ Because at the provincial court level, (third parties) can’t intervene, so (the pirates) got away with it. So wham, here’s the first time in a criminal court that the charter argument has been argued and it was found to be crap," lawyer Bill McKenzie tells Canadian Communications Reports. The senior partner with Crawford, McKenzie, McLean, Wilford, Anderson & Duncan LLP who has been active in fighting TV signal theft cases in court added, "At the provincial court level, you’re not allowed to intervene, so we’ve always been stymied. Here’s the first time a pure criminal case has tested the charter. It’s like, bingo, the judge understood it." In his ruling, Judge Wilbrod Claude Décarie of the Quebec Superior Court ruled that the lower court judge, Justice Danielle Côté, went too far in finding that defendants Jacques D’Argy and Richard Thériault of Drummondville QC had the constitutional right to receive the TV signals of U.S. distributor DirecTV using pirate access cards. In a 100-page decision handed down on October 28, Côté declared sections 9(1)c and 19(1)b of the Radiocommunication Act that make the black and grey satellite TV market illegal to be unconstitutional (CCR, Nov. 8/04). "The flaws in Judge Côté’s decision were picked up here. In a nutshell, the first flaw was that she got it wrong because there is no underpinnings of the grey market. Every time the pirates say grey market, it’s a sham. There’s no such thing anymore. Every time we’ve had a civil case, we peel back the layers and we find black. The judge picked up on that on appeal," McKenzie notes. "And then Judge Côté just absolutely ignored the whole idea of who owns and controls the programming. The problem is always, ‘what’s a signal?’ but the programming is always a vehicle for programming. You have to spend a lot of time explaining that. It’s just like when CCR arrives, it’s an email or a piece of paper. But it’s the content that’s of value. Judge Côté just missed that completely. But this judge picked it up." The defendants ran ads in a Drummondville newspaper that stressed that no subscription fees were necessary to get the TV service. The telephone numbers contained in the ad were assigned to the two accused. On December 17, 1998, Philippe Ouimet of the Canadian Motion Picture Distributors Association (CMPDA) bought an antenna and an access card from the defendants, who explained that in three months he would have to return to have the access card reprogrammed to continue to receive the TV programming for free. When the residences of the two defendants were raided, they were found to have installed illegal equipment to receive the DirecTV signal. Neither of the defendants denied those facts. Judge Décarie has sent the case back to Judge Côté to determine the punishment. The Coalition Against Satellite Signal Theft (CASST) praised the decision. "The coalition…is pleased that the Crown’s appeal has clarified that all satellite signal theft is illegal under the Radiocommunication Act," says CASST co-chair Luc Perreault. "The federal government can now move quickly to amend the Radiocommunication Act so that the penalties for satellite signal theft reflect the severity of the crime," adds CASST co-chair Harris Boyd. McKenzie is also ecstatic with the decision. "Finally a criminal court has seen the light…Kudos to my friends Michel Denis and Manon Lavoie for administering the last rites to the charter argument in a criminal proceeding. Of course, the only mourners at the funeral will be the bandits who have robbed legitimate broadcasters for years." Denis and Lavoie were the lawyers who spearheaded the appeal on behalf of the federal government. When the Supreme Court of Canada confirmed that the grey and black market were illegal in 2002, its decision noted that it had not ruled on the constitutional questions raised by the respondents in the case because it did not have a full record on the matter (CCR Update, April 26/02). McKenzie says the decision could have far-reaching effects. "It’s a very compelling decision that I believe will be followed by every court in Canada from now on," he says. "This is such a powerful decision that I really believe that no criminal judge in Canada will stray from it." McKenzie says the defendants could appeal the case to the Quebec Court of Appeal, but he is not worried. After the Quebec Court of Appeal, the next level is the Supreme Court of Canada. He notes that if the Supreme Court of Canada upholds this recent decision, then it would apply to all of Canada. "I can tell you that the pirates – it’s in their interest to take it to the next level. They’ve lost and they’re toast. They have a right to appeal it to the Quebec Court of Appeal," he notes. "It would certainly serve us if it went all the way to the Supreme Court." The CMPDA, the Canadian Association of Broadcasters, the Canadian Cable Telecommunications Association, the Canadian Film and Television Production Association, Bell ExpressVu, DirecTV and others are members of CASST.

Quebec court turns down charter argument in satellite TV signal theft case

News | 04/08/2005 4:00 am EDT

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