Communications

• Author: International Law Group

Bell ExpressVu Limited Partnership(Bell) distributes direct-to-home (DTH) television programming under government license and encodes its Canadian satellite signals to limit those able to get them.

Richard Rex, c.o.b. as 'Can-Am Satellites' and others (collectively "Rex"), markets decryption systems to Canadian consumers that enable them to watch U.S. DTH programs. Canadian law bars non- Canadian broadcasters from marketing their programs in Canada.

Since the U.S. broadcasters will not intentionally let persons outside the U.S. decode their satellite signals, Rex furnishes U.S. mailing addresses to those of its Canadian customers who lack them. Bell sued Rex in the British Columbia Supreme Court, pursuant to Sections 9(1)(c) and 18(1) of the Radio Communication Act. It asked the Court to enjoin Rex from helping Canadian residents to subscribe to, and decrypt, U.S. DTH programming. Section 9(1)(c) authorizes the courts to issue injunctions against the decoding of encrypted signals without the permission of the "lawful distributor of the signal or feed." The chambers judge declined in 1999 to grant the injunctive relief.

In 2000, a majority of the B.C. Court of Appeal dismissed Bell's appeal. It ruled that the decoding of unregulated signals such as those broadcast by the U.S. DTH companies, does not violate Section 9(1)(c). In granting review, the Supreme Court of Canada saw the issue as (1) whether Section 9(1)(c) bans the decoding of all encrypted satellite signals, with a limited exception, or (2) whether it bars only the unauthorized decoding of signals from licensed Canadian distributors. In allowing the appeal, the Court decides that the first reading is the correct one.

Before it decides that the words of a statute are ambiguous, a Canadian court first has to follow the preferred contextual and purposive approach to interpretation. It must read the words of the Act in their complete context and in their grammatical and usual sense in such a way as to harmonize with the scheme of the Act, its purpose and Parliament's intent. Only when an authentic ambiguity surfaces between two or more plausible readings, each equally consistent with statutory intentions, do the courts...