The grey and black TV market freedom of expression argument appears headed for the Supreme Court of Canada as a defendant in a Quebec case has been granted leave to appeal a Quebec Superior Court decision to the province’s court of appeal. Drummondville QC resident Jacques D’Argy, who has been charged with illegally selling a DirecTV satellite system, has vowed to take his case all the way to the Supreme Court, if necessary. Lawyer Bill McKenzie, who has actively been fighting against TV signal theft in the courts, welcomes the opportunity for the case to be heard in the highest court. He hopes that "no matter what the outcome is that the issue will go on to the Supreme Court, which will grant leave to hear it." He adds, "I expect there should be no difficulty in obtaining leave since this is the second part of what we started in 2002." The Supreme Court confirmed in an April 2002 decision that grey and black market satellite TV was illegal under the Radiocommunication Act (CCR, April 26/02). However, at that time the Supreme Court did not rule on the constitutional questions raised by the respondents in the case because of a lack of evidence to determine the issue. The Quebec Superior Court overturned in March 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. In his Quebec Superior Court ruling, Judge Wilbrod Claude Décarie ruled that the lower court judge, Justice Danielle Côté, went too far in finding that D’Argy and co-defendant Richard Thériault had the constitutional right to receive the TV signals of U.S. distributor DirecTV using pirate access cards (CCR, April 8/05). D’Argy’s case marks the first time that a criminal court has turned down arguments that the Charter’s freedom of expression section can be used to justify grey and black market TV signal theft. D’Argy has been granted leave to appeal Décarie’s decision to the Quebec Court of Appeal and he hopes the higher court will be more open to his claims that under the Charter, he has the right to receive and view programming from abroad. Regardless of what the Quebec Court of Appeal rules, the case is likely to go next to the Supreme Court of Canada. If the Quebec Court of Appeal confirms Décarie’s ruling, D’Argy has vowed to go to the Supreme Court. On the other hand, if Quebec Court of Appeal sees D’Argy’s arguments, then the government – pushed by Canadian broadcasters and others – is likely to petition for leave to appeal to the highest court. If the case ends up before the Supreme Court, McKenzie says it is up to the broadcasting industry to intervene to fill in the gaps in evidence and ensure that there is a complete answer once and for all. For the broadcasters the matter is not one of being able to import foreign channels, particularly ethnic ones, but a question of TV programming rights. Broadcasters purchase the Canadian rights to U.S. and other programming, and a subscription to DirecTV, which would air many of the same shows, would undercut those contracts. In seeking leave to appeal to the Quebec Court of Appeal, D’Argy argued that the matter was a significant matter involving issues that affect people right across Canada, and that the Superior Court judge misapplied the law and ignored valuable evidence from the accused’s witnesses. D’Argy also states in his leave to appeal application that the judge did not take into account that a company or an individual can raise the Charter as a defence, did not apply the proper standard of proof, ignored the fact that the absolute prohibition in 9(1)(c) applies equally to the grey market as to the black market, and did not perform an exhaustive examination of each factor in a charter analysis of a statute as per R. v. Mills. D’Argy’s case has been before the courts for years. He was originally charged with illegally selling DirecTV satellite systems in 1998. He was acquitted in September 2000. The Court of Appeal of Quebec decided in November 2001 to hold off on the case until the Supreme Court ruled on whether or not the grey and black market was illegal. In May 2002 the Quebec Court of Appeal applied the Supreme Court’s 2002 ruling to the case and declared D’Argy guilty. The case was sent back to the lower court for adjudication of the constitutional issue. Judge Côté heard the Charter arguments in June 2004, acquitted the accused on Charter grounds. When that decision was overturned by the Superior Court of Quebec in March, D’Argy appealed the matter to the Quebec Court of Appeal, where the case has yet to be argued.