Bell ExpressVu, a direct television provider which encrypted its television signals to control reception in Canada, filed a petition for relief against a number of respondents who sold television decoding systems to Canadian consumers.
At issue was Section 9(1)(c) of the Radiocommunication Act, which states that: “No person shall … 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.”
The Chambers judge initially declined to grant relief and the Court of Appeal upheld this decision, finding that there is no breach of the Radiocommunication Act where a person decodes unregulated signals.
The Supreme Court of Canada overturned the Court of Appeal’s decision, finding that the plain and ordinary meaning of the statute was clear:
“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.”
In regard to the freedom of expression issues raised by Bell ExpressVu, the Supreme Court found that Charter considerations should only be imported into questions of statutory interpretation in circumstances where there is a genuine ambiguity as to the meaning of the legislation.
The Supreme Court justified its decision by stating that the Section 9(1)(c) of the Radiocommunication Act “accords well with the objectives set out in the Broadcasting Act and complements the scheme of the Copyright Act.”
This rationale recognizes the similarity between property in the context of the radiocommunication spectrum and property in intellectual creations within the meaning of the Copyright Act. The importation of copyright principles, however, seems surprising given the Supreme Court’s unwillingness to consider freedom of expression principles enshrined in the Charter, Canada’s supreme law which would normally take precedence over the Copyright Act.
Decided by the Supreme Court of Canada on April 26, 2002.
Click here for the full text of the decision.