Judgments

Decision Information

Decision Content

T-2230-85
Shuswap Cable Ltd. (Plaintiff) (Defendant by Counterclaim)
v.
The Queen, Attorney General of Canada and Min ister of Communications (Defendants) (Plaintiffs by Counterclaim)
INDEXED AS: SHUSWAP CABLE LTD. V. CANADA
Trial Division, Muldoon J.—Vancouver, March 4, 5, 6 and 7; Ottawa, August 29, 1986.
Broadcasting — Plaintiff operating cable television business — CRTC denying applications for licence under Broadcasting Act — Minister refusing to issue technical construction and operating certificate (TC & OC) although nothing technically wrong with plaintiff's equipment — Hegemony of CRTC as to national broadcasting policy — Minister responsible for coor dinating national policies relating to communication services for Canada — Minister must adhere to national policy — Plaintiff broadcasting receiving undertaking required to be licensed under Broadcasting Act — Minister acting in accor dance with law in declining to issue TC & OC while plaintiff not having broadcasting licence from CRTC — CRTC's refus al of broadcasting licence aborting process before Minister for TC & OC — Radio Act, R.S.C. 1970, c. R-1, ss. 3(1),(2)(c), 4(1)(b), 10, 11 — Broadcasting Act, R.S.C. 1970, c. B-11, ss. 3, 17(1)(e), 22(1)(b) — Interpretation Act, R.S.C. 1970, c. 1-23, s. 14(2)(b) — Department of Communications Act, R.S.C. 1970, c. C-24, ss. 4(b), 5(1)(a).
Criminal justice — Writs of assistance — Plaintiff's radio station raided under authority of search warrant issued under ss. 3(1) and 10 of Radio Act — Justice of peace giving proper judicial consideration as to whether sworn information sup porting issuance of warrant and had personally signed — Copy exhibited to plaintiffs principals at time of raid bearing rubber stamped imprint of name and office of justice of peace — Stamped true copy lawful where warrant really signed by the justice — Cannot impute unlawful motive to Minister and departmental officials in conduct of search and seizure — Purpose of Radio Act, s. 10 to eliminate unlicensed use of radio apparatus — Although direct effect of s. 10 to terminate operations of illegal broadcasting undertaking, judicial deter mination of illegality required — Charter, s. 8 not violated — Impartial consideration of conflicting interests — Information indicating reasonable and probable grounds to believe offence committed — Interruption of business not unreasonable as plaintiffs business per se illegal — Radio Act, R.S.C. 1970, c. R-1, ss. 3(1), 10 — Canadian Charter of Rights and Free doms, being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.), s. 8 — Criminal Code, R.S.C. 1970, c. C-34, s. 25.
For the facts of this case, see the Editor's Note.
Held, the plaintiff's claim should be dismissed. The defen dants' claim for an injunction should be dismissed, but certain declarations should be granted.
The Radio Act and the Broadcasting Act apply to each other, pursuant to paragraph 14(2)(b) of the Interpretation Act as they have common definitions. They are in pari materia, both dealing with radiocommunications and broadcasting, and broadcasting receiving undertakings.
The Minister of Communications is responsible for coor dinating national policies and programs with respect to com munication services for Canada. Section 4 of the Department of Communications Act denies the Minister power over matters assigned to the CRTC, but he must take cognizance of that agency's authority in the development of communication under takings, and in his obligation to coordinate and to promote national policies. The Broadcasting Act expresses a national policy and the hegemony of the CRTC in that policy. It confers the social, economic and cultural aspects of broadcasting on the CRTC. The Minister is bound to adhere to this policy. The Minister certifies that an applicant has the required technical capabilities, but the CRTC decides who should receive a licence. It is therefore not the Minister's function to issue a TC & OC to an applicant who would not be entitled to operate under a broadcasting licence issued by the CRTC.
Shuswap is a broadcasting receiving undertaking which oper ates a radio station using radio apparatus which is required to be licensed under the Broadcasting Act. The Minister is acting in accordance with the law and his duties, powers and functions in declining to issue a TC & OC to the plaintiff while it does not hold a broadcasting licence from the CRTC. The Minister abides by his powers in accordance with the Department of Communications Act, the Radio Act and the Broadcasting Act, which latter two statutes are in pari materia. They explain each other in terms of the Minister's conduct; they refer to each other; and they are united in purpose, explanation and refer ence by Parliament's declared notion of a single Canadian broadcasting system regulated and supervised by a single independent public authority, the CRTC. In respecting the enactments of Parliament, the Minister evinces no consider ation of matters extraneous to the powers, duties and functions which Parliament has conferred upon him.
The Minister correctly did not consider further the issuance of a TC & OC, once the CRTC refused a broadcasting licence, because the process was aborted by the CRTC decision. Because the procedure to obtain a TC & OC is properly tied to the procedure to obtain a licence from the CRTC, it cannot be maintained that the Minister had ever made a deliberate attempt to deny Shuswap a TC & OC. The Minister is under no duty to entertain the plaintiff's abortive application any further.
The final issue was as to whether the search of the plaintiff's premises was illegal or unreasonable. While a stamped copy of the search warrant was exhibited to the plaintiff's principals, the original warrant had been signed by the justice of the peace in her own handwriting. The name is legible and the authority to issue a warrant is clearly shown. It is less likely to cause apprehension of forgery than a warrant which bears an illegible handwritten scrawl for a signature. It would have been better for the justice of the peace to have written her name as well as to have applied her stamp, but it is unrealistic to propound that double indication as a necessary rule. Many justices of the peace are called upon to issue a prodigious quantity of process. For them the rubber stamp is a crucial aid. In the circum stances, the stamped true copy was lawful and acceptable.
The purpose of section 10 of the Radio Act is to eliminate the use and operation of radio apparatus without a licence or a TC & OC by means of a search for and seizure of the same for evidence in a prosecution. Upon conviction, the radio apparatus may be forfeited. The intent of Parliament is to invoke stern measures to ensure the enforcement of the regulatory scheme which it created. This purpose and legislative intention are within Parliament's jurisdiction. No oblique or nefarious motive can be imputed to the Minister or departmental officials in seeking to enforce the law. The plaintiff contends that the defendants' true motive was to shut down its operations. The direct effect of section 10 is to terminate operations of an illegal broadcasting undertaking. The determination of illegal ity must be left to judicial determination. As to a TC & OC, no one knows better than the Minister and departmental officials whether such has been issued, and no one knows better than the applicant whether one has been received. Section 8 of the Charter, guaranteeing the right to be secure against unreason able search and seizure, has not been violated. The justice of the peace assessed the conflicting interests in a neutral and impartial manner. The information indicated reasonable and probable grounds to believe that the offence had been commit ted, and that there was evidence of the commission of the offence to be found at Shuswap's business premises. The inspectors' action in attempting to enforce the warrant was not an unreasonable disruption of a legitimate business, as Shus- wap's business in the absence of a TC & OC was per se illegal.
Shuswap is not entitled to even nominal damages as the search was not unlawful nor unreasonable. Shuswap's is not an innocent third party. Its illegal use of radio apparatus was the cause of the lawful search.
The Court will not issue an injunction restraining the plain tiff from operating as a broadcasting undertaking without the necessary statutory authorizations. The enforcement provisions of the Radio Act are adequate to counter any apprehended future misconduct on the part of Shuswap. The nature of the use of radio apparatus in a cable television service renders that apparatus readily discoverable. The statute law is readily enforceable.
The defendants are entitled to declarations that the plaintiff operates a radio station subject to the Radio Act and requiring a TC & OC and that the Minister is justified in discontinuing consideration of any application for a TC & OC if the appli cant lacks CRTC approval for a broadcasting licence.
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Fox, [1958] O.W.N. 141; 120 C.C.C. 289; 27 C.R. 132 (C.A.)
DISTINGUISHED:
Re Black and The Queen (1973), 13 C.C.C. (2d) 446 (B.C.S.C.); Queen, The v. Welsford, [1969] S.C.R. 438; 4 D.L.R. (3d) 350; affg. Re R. v. Welsford, [1967] 2 O.R. 496 (C.A.).
CONSIDERED:
Lount Corporation v. Attorney General of Canada, [1984] 1 F.C. 332 (T.D.); affd. sub nom. Attorney Gen eral of Canada v. Lount Corporation, [1985] 2 F.C. 185 (C.A.).
REFERRED TO:
Roncarelli v. Duplessis, [1959] S.C.R. 121; Padfield v. Minister of Agriculture, Fisheries and Food, [1968] 1 All E.R. 694 (H.L.); Re Multi-Malls Inc. et al. and Minister of Transportation and Communications et al. (1976), 73 D.L.R. (3d) 18 (Ont. C.A.); Re Doctors Hospital and Minister of Health et al. (1976), 12 O.R. (2d) 164 (H.C.); Village Shopping Plaza (Waterdown) Ltd. et al. v. Regional Municipality of Hamilton-Went- worth et al. (1981), 34 O.R. (2d) 311 (H.C.); Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145; [1984] 6 W.W.R. 577.
COUNSEL:
G. K. Macintosh for plaintiff.
D. M. M. Goldie, Q.C. and J. C. McKechnie
for defendants.
SOLICITORS:
Farris, Vaughan, Wills & Murphy, Vancou- ver, for plaintiff.
Russell & Dumoulin, Vancouver, for defen dants.
EDITOR'S NOTE
The Executive Editor has decided to report His Lordship's 37-page reasons for judgment herein as abridged.
The plaintiff, a corporation, operates a cable television business. Signals are received from satellites in geostationary orbit by parabolic dish antennae on the roof of the plaintiff's premises. Eighteen of the twenty signals distributed to the plaintiff's customers originated in the United States of America. The technical aspects of this case are accordingly similar to those described in Lount Corporation v. Attorney General of Canada, [1984] 1 F.C. 332 (T.D.), affirmed (sub nom. Attorney General of Canada v. Lount Cor poration) at [1985] 2 F.C. 185 (C.A.).
The CRTC had denied the plaintiff's applica tions for a licence under the Broadcasting Act, R.S.C. 1970, c. B-11, and, for that reason, the Minister of Communications has refused to issue a technical construction and operating certificate. There was nothing technically wrong with the plaintiff's equipment. While operating what appeared to be "radio apparatus" at its "radio station", the plaintiff contended that it was not receiving "radiocommunication" as defined in the Broadcasting Act.
In November, 1984, plaintiff was charged with broadcasting without a licence, contrary to sub section 29(3) of the Act and a conviction—relat- ing only to the C. B.C. and C. T. V.—was obtained. The plaintiff ceased distributing those two signals.
On June 12, 1985, the plaintiff's radio station was raided by police under the authority of a search warrant issued pursuant to the Radio Act, R.S.C. 1970, c. R-1, subsection 3(1) and section 10. There was evidence that the justice of the peace had given proper judicial consideration as
to whether the sworn information would support issuance of a warrant and had personally signed it. The copy exhibited to the plaintiff's principals at the time of the raid bore a rubber stamped imprint of the name and office of the justice of the peace. Since the raid was anticipated, defence counsel were standing by and they secured an interim order from the Supreme Court of British Columbia that the search and seizure be discontinued. The plaintiff says that the search and seizure were unlawful because the purpose was not to acquire evidence for a prosecution, but rather to shut its operation down. Further, it was contended that the search and seizure were unreasonable in light of a letter from an official in which it was stated that since "your system ... is a B.C.U.C. and not CRTC licensed system and you do not hold a Technical Construction and Operating Certificate (TC & OC) from the Department we will not request a proof for this type of system".
The plaintiff's claims were for: (1) a declaration that the Radio Act did not apply to its operation; (2) a declaration that its Charter (Canadian Chart er of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)) rights had been violat ed; (3) general and exemplary damages for tres pass and unlawful search and seizure; (4) alterna tively to (1), mandamus compelling the Minister of Communications to entertain its application; and (5) in the alternative, certiorari to quash the Minis ter's refusal to grant its application. The defend ants (plaintiffs by counterclaim) sought a declara tion that: (1) the plaintiff operated a radio station as defined in the Act; (2) it was subject to the provisions of subsection 3(1) thereof; and (3) the plaintiff's operation constituted a broadcasting undertaking, unlawful without a TC & OC. Also sought was a permanent injunction restraining the plaintiff from operating in the absence of statutory authorizations.
There were three issues for determination: (1) whether the Radio Act applies to the plaintiff's undertaking, which depended on whether or not its undertaking received signals by an "artificial guide"; (2) could the Minister use the Radio Act to enforce the Broadcasting Act; (3) was the search illegal or unreasonable.
The following are the reasons for judgment rendered in English by
MULDOON J.:
THE FIRST ISSUE
Despite the clear findings and admissions of what constitutes "broadcasting", including "radio- communication", in the Lount case, in technical circumstances identically the same as those pre sented here, Shuswap contends that the signals which it receives and passes on to subscribers are not "without artificial guide". The commercial and technical operations of Shuswap constitute, without doubt, a receiving undertaking. The Court so finds. Shuswap questions whether that which its undertaking is receiving constitutes broadcasting.
"Broadcasting" is a term which along with its constituent elements, is defined in section 2 of the Radio Act, thus:
2. (1) ...
"broadcasting" means any radiocommunication in which the transmissions are intended for direct reception by the general public;
"broadcasting undertaking" includes a broadcasting transmit ting undertaking, a broadcasting receiving undertaking and a network operation located in whole or in part within Canada or on a ship or aircraft registered in Canada;
"radio apparatus" means a reasonably complete and sufficient combination of distinct appliances intended for or capable of being used for radiocommunication;
"radiocommunication" or "radio" means any transmission, emission or reception of signs, signals, writing, images, sounds or intelligence of any nature by means of electro magnetic waves of frequencies lower than 3,000 Gigacycles per second propagated in space without artificial guide;
"radio station" or "station" means a place wherein radio apparatus is located;
The very same definitions of "broadcasting", "broadcasting undertaking" and "radiocommuni-
cation" are enacted by section 2 of the Broadcast ing Act.
EDITOR'S NOTE
His Lordship proceeded to review the expert evidence which conflicted as to the meaning of what happens in the satellite's radio apparatus. The plaintiff's expert saw that apparatus as an integral part of a system which redirects the signals as an intermediate stage of a process between initial transmission and ultimate recep tion. But the statutes avoid any notion of a "sys- tem" or "process". They define radiocommunica- tion as "any transmission ... propagated in space without artificial guide". The opinion of the defendants' expert, that, in retransmitting to earth from a satellite, the medium is outer space or the earth's atmosphere and that there is no man- made device along which the waves are propa gated, was correct. Accordingly, the plaintiff was "broadcasting" as defined in the Radio Act and Broadcasting Act. It was receiving "radiocom- munication in which the signals are intended for direct reception by the general public" as that expression was interpreted in Lount.
THE SECOND ISSUE
The defendants' counsel, in effect, adopted the plaintiff's counsel's statement of this issue, although the former referred to it as the plaintiff's "water tight compartment theory" (transcript: page 509). In essence the question is whether or not the Minister of Communications is justified in declining to make a decision, or in refusing to issue a TC & OC to Shuswap so long as it has no licence from the CRTC, pursuant to the Broad casting Act. Shuswap's counsel contends that the power—and, he asserts, the duty—of the Minister to grant a TC & OC to the plaintiff, has in law nothing whatever to do with the CRTC's refusal to issue a broadcasting receiving licence.
Having as it does those common definitions with the Broadcasting Act, it appears that the Radio Act must be construed as being applicable to the
former, and vice versa. Paragraph 14(2)(b) of the Interpretation Act, R.S.C. 1970, c. I-23, so pro vides, thus:
14....
(2) Where an enactment contains an interpretation section or provision, it shall be read and construed
(b) as being applicable to all other enactments relating to the same subject-matter unless the contrary intention appears.
The two companion enactments here under con sideration are in pari materia because they have much to do with each other in regard to the same classes of subjects, radiocommunications and broadcasting, and the same class of enterprises, broadcasting receiving undertakings, among others. The plaintiff has not demonstrated that the Radio Act's context otherwise requires in this regard.
Shuswap's principals' bewilderment at being time and again denied a broadcasting licence when they have always been ready and able to provide licensed services in Salmon Arm, and when their competitor applicants have not always been ready and able despite being licensed, is not surprising. George Ronald Begley, Director General of Broad casting Regulations in the Department of Com munications, certainly agreed in his testimony that the information contained in Shuswap's applica tions for a TC & OC met with the Department's technical acceptance (transcript: page 352). Exhibits 1(19),(20),(21),(22) and (27), among others, confirm that the plaintiff's equipment and technical operations are not deficient, but rather, are technically acceptable. However, the plaintiff has had no success in trying to obtain a broadcast ing licence. The CRTC has so ordained; and nei ther it, nor its decisions, is before the Court in this case.
The plaintiffs counsel rejects the characteriza tion of his argument as asserting that the two Acts form watertight compartments, (transcript: page 612) and acknowledges (pages 612 and 613) the interface or interaction provided by section 22 of the Broadcasting Act. Paragraph 22(1)(b) pro vides:
22. (1) No broadcasting licence shall be issued ... pursuant to this Part
(b) unless the Minister of Communications certifies to the Commission that the applicant has satisfied the requirements of the Radio Act and regulations thereunder and has been or will be issued a technical construction and operating certifi cate under that Act with respect to the radio apparatus that the applicant would be entitled to operate under the broad casting licence applied for ...;
and any broadcasting licence issued ... in contravention of this section is of no force or effect. [Emphasis added.]
Overlooking for the moment the emphasized expressions, it remains the contention of Shuswap that if Parliament had intended reciprocity be tween the two Acts, there would have been a provision like the above recited one emplaced in the Radio Act or at least some legislative guidance of that sort. Counsel argues that nowhere in the Radio Act is any authority given to the Minister to make it a condition of a TC & OC that there will be approval or a licence pursuant to the Broad casting Act.
The defendant Minister is granted an array of powers by Parliament and they must be reviewed and analysed in order to test the validity of the plaintiffs argument. One might start with the Department of Communications Act, R.S.C. 1970, c. C-24, whereby the Minister's office is created and its basic, general powers and duties are defined. Selected provisions are:
4. The duties, powers and functions of the Minister of Communications extend to and include all matters over which the Parliament of Canada has jurisdiction, not by law assigned to any other department, branch or agency of the Government of Canada, relating to
(b) the development and utilization generally of communica tion undertakings, facilities, systems and services for Canada.
5. (1) The Minister of Communications, in exercising his powers and carrying out his duties and functions under section 4, shall
(a) coordinate [and] promote ... national policies and pro grams with respect to communication services for Canada
Among the national policies and programs which the Minister is obligated to coordinate and to promote are, of course, the policies enunciated
or discerned in the statutes of Parliament. Of course, the Minister is, by section 4 of the above- recited provisions, denied power over matters assigned by law to the CRTC; but it is clear that he must take cognizance of that agency's authority in the development and utilization generally of communication undertakings and in the Minister's obligation to coordinate and to promote national policies and programs regarding communication services throughout Canada.
In fact, there is a national broadcasting policy expressed in section 3 of the Broadcasting Act. Clearly, it is the Minister's duty to promote it and to coordinate it with the statutory functions and powers of his office and those of his Department, however and wherever duly enacted by Parliament. Pertinent provisions of this national policy are:
3. It is hereby declared that
(a) broadcasting undertakings in Canada make use of radio frequencies that are public property and such undertakings constitute a single system, herein referred to as the Canadian broadcasting system, comprising public and private elements;
(c) all persons licensed to carry on broadcasting undertakings have a responsibility for programs they broadcast but the right to freedom of expression and the right of persons to receive programs, subject only to generally applicable stat utes and regulations, is unquestioned;
(h) where any conflict arises between the objectives of the national broadcasting service and the interests of the private element of the Canadian broadcasting system, it shall be resolved in the public interest but paramount consideration shall be given to the objectives of the national broadcasting service;
(j) the regulation and supervision of the Canadian broadcast ing system should be flexible and readily adaptable to scien tific and technical advances;
and that the objectives of the broadcasting policy for Canada enunciated in this section can best be achieved by providing for the regulation and supervision of the Canadian broadcasting system by a single independent public authority.
Once again, one notes the hegemony of the CRTC's independence and authority in that na tional policy, which the Minister is obliged to coordinate and to promote. In paragraph (c) it is
established that the right of persons (including Shuswap) to receive programs is unquestioned, but is subject only to generally applicable statutes (plural) and regulations. So it is, that adherence to this policy is among the duties, and a fortiori is necessarily among the array of powers, delegated by Parliament to the defendant Minister.
It is apparent, in construing the Broadcasting Act, that the social, economic and cultural aspects of broadcasting are firmly confided to the author ity of the CRTC. Paragraph 22(1)(b) has already been noticed. That paragraph's provision, that a TC & OC has been or will be issued "with respect to the radio apparatus that the applicant would be entitled to operate under the broadcasting licence applied for", means the Minister must certify that an applicant who receives a licence from the CRTC will have the technical capability to make use of radio frequencies which are public property whose regulation and supervision are committed to the CRTC. The Minister's function, in promoting and coordinating that policy, is to inform the CRTC that all technical capabilities of the appli cants are in readiness for the CRTC to choose among the applicants who would be entitled to operate a broadcasting undertaking, if and when the CRTC so chooses. The CRTC will not license an applicant who cannot demonstrate those capabilities, and any licence issued will not endure if and while the licensed operator loses those capabilities as subsection 22(2) provides.
The paramount authority, which the Minister is bound to respect, resides in the CRTC. Indeed, in paragraph 17(1) (e) Parliament even authorizes the CRTC to exempt persons carrying on broad casting receiving undertakings (as Shuswap does) from the requirement of holding broadcasting licences. But that exemption has not been shown to have been accorded in Shuswap's case. Since the regulation and supervision of the Canadian broad casting system are conferred on a single indepen dent public authority, which is the CRTC, it is clearly no function of the Minister, or departmen tal officials, to issue any TC & OC to an applicant who would not be entitled to operate under a broadcasting licence issued by the CRTC.
The Minister's function is established and con firmed in the provisions of the Radio Act, thus:
3. (1) Subject to subsections (2) and (3), no person shall
(a) establish a radio station, or
(b) install, operate or have in his possession a radio apparatus
at any place in Canada ...
... and, to the extent that it is a broadcasting undertaking, except under and in accordance with a technical construction and operating certificate, issued by the Minister under this Act. [Emphasis added.]
Thus, it appears that the absence of either a TC & OC or a broadcasting licence renders unlawful the operation of radio apparatus in a broadcasting undertaking. Why? The Minister may exempt a radio station or apparatus from the requirement of holding a TC & OC by regulation, but he is not entitled to do so if that station or apparatus be "part of a broadcasting receiving undertaking of a class . .. required to be licensed under the Broad casting Act" according to paragraph 3(2)(c) of the Radio Act. This latter Act provides, also:
4. (1) The Minister may (b) issue
(ii) technical construction and operating certificates in respect of radio stations and radio apparatus to the extent that they are broadcasting undertakings,
for such terms and subject to such conditions as he considers appropriate for ensuring the orderly development and operation of radiocommunication in Canada; [Emphasis added.]
Clearly, the Minister cannot proceed in disregard of the orderly development and operation of radio- communication, in contemplation of all three rele vant Acts of Parliament which have been reviewed here.
The Court has found, and finds that Shuswap is a broadcasting receiving undertaking which oper ates a radio station using radio apparatus which is required to be licensed under the Broadcasting Act. In declining to issue a TC & OC to Shuswap while it holds no broadcasting licence from the CRTC, the Minister does nothing unlawful what ever. He acts fully in accordance with the law and
his duties, powers and functions as therein prescribed.
The plaintiff has invoked for support the judg ments in Roncarelli v. Duplessis, [ 1959] S.C.R. 121, Padfield v. Minister of Agriculture, Fisheries and Food, [1968] 1 All E.R. 694 (H.L.), Re Multi-Malls Inc. et al. and Minister of Transpor tation and Communications et al. (1976), 73 D.L.R. (3d) 18 (Ont. C.A.), Re Doctors Hospital and Minister of Health et al. (1976), 12 O.R. (2d) 164 (H.C.) and Village Shopping Plaza (Water- down) Ltd. et al. v. Regional Municipality of Hamilton-Wentworth et al. (1981), 34 O.R. (2d) 311 (H.C.) among others. None of this line of jurisprudence aids the plaintiff, because here the Minister abides by his powers, duties and functions in accordance with the Department of Communi cations Act, and with the Radio Act and the Broadcasting Act which latter two statutes are in pari materia. They explain each other in terms of the Minister's conduct; they refer to each other; and they are united in purpose, explanation and reference by Parliament's declared notion of a single Canadian broadcasting system regulated and supervised by a single independent public authority, the CRTC. In respecting the enact ments of Parliament, the Minister evinces no con sideration whatever of matters extraneous to the powers, duties and functions which Parliament has conferred upon him. Furthermore, the manner in which the Minister and departmental officials carry out their role, as demonstrated in Exhibits 1(10), 1(10.1) and 10, evinces no departure from the compendium of duties accorded and imposed by any of the three statutes.
Therefore, on this second issue, the plaintiff's contention "that nowhere in the Act is authority given to the Minister to make it a condition of a TC & OC that there will be Broadcasting Act approval" states the true issue too narrowly. The Acts are in pari materia. The plaintiffs contention is wrong. The Minister is correct.
The Minister is correct in law, but the defen dants further aver in paragraph 17 of their state ment of defence that the Minister has never
refused to entertain an application by the plaintiff pursuant to the Radio Act. Paragraphs 14 and 15 of the statement of claim speak of applying for a licence pursuant to subsections 3(1) and 4(1) of that Act. Shuswap's counsel spoke only of TVRO licences as "a source of some perplexity" (tran- script: page 389) for which the plaintiff had made no application for the last few years. (See, also, transcript: page 399.) This was confirmed by Mr. Begley (transcript: page 351). At all material times after 1983 the plaintiff would have required a TVRO licence under the Radio Act for reception of foreign satellite signals only.
In so far as the Minister gave, or would give, no further consideration to the issuance of such a licence once the CRTC refused a broadcasting licence, he was just as correct in that as he has been in regard to an application for a TC & OC. In any event, Shuswap's counsel made clear (tran- script: page 491) that the "licence" referred to in the statement of claim means a TC & OC. Indeed, such has been the main focus of the trial.
In regard to its last application for a broadcast ing licence, upon which the CRTC held a hearing in Kelowna, in March, 1984, Shuswap received from the Department a letter (Ex. 1(22)) advising Shuswap of the technical acceptability of its application for a TC & OC. This is the kind of letter referred to in Exhibit 10 and it is part of the normal procedure involved in applications for a broadcasting licence. When Shuswap's application for that licence was refused by the CRTC, the Minister simply discontinued consideration of granting a TC & OC, because the process was aborted by the CRTC's decision. The plaintiffs assertion that the Minister made a decision to deny it a TC & OC is based simply on the fact that it presently has none, (transcript: page 129) and that it will be impossible to obtain one without a licence from the CRTC. Because the procedure to obtain a TC & OC is, as has been found by the Court, properly tied to the procedure to obtain a licence from the CRTC, it cannot be maintained that the Minister has ever made a deliberate deci sion to deny Shuswap a TC & OC. By defending and counterclaiming in this action it is clear, how-
ever, that the Minister resists the attempt to compel him to make any decision about granting a TC & OC to Shuswap. The Minister, in light of the Court's findings in regard to this second issue, is under no duty to entertain the plaintiff's abor tive application any further, or to consider it anew. Any such duty evaporated on July 5, 1984, as indicated in Exhibit 1(24), the CRTC's decision.
The above conclusions seal the fate of Shus- wap's claims (a), (d) and (e), being respectively for a declaration, for mandamus, and for certio- rari. They are to be dismissed.
THE REMAINING ISSUE
Here arises the question of whether the search of the plaintiff's premises on June 12, 1985, was illegal or unreasonable. Upon the resolution of this issue will turn the disposition of Shuswap's claims for a declaration of violation of its rights under the Charter, and for damages.
There is no complaint from Shuswap in regard to the completion of the information sworn by Mr. Renneberg, and indeed the Court has already found it to be proper and lawful. Shuswap's com plaint turns on the lawfulness of the stamped copy of the search warrant (Ex. 1(38)), which alone was exhibited to the plaintiff's principals in rejection of their demand to see the warrant which was truly signed by the justice of the peace in her own handwriting.
The plaintiff's principals, Messrs. MacKay and Hillier were not deceived by the stamped copy. They never harboured any belief that it was, or could be, a forgery or a sham (transcript: page 472). Indeed a reasonable inference may be drawn from Mr. Hillier's testimony (transcript: page 145) that he did believe in the existence of a signed warrant at the office which was "only a matter of two or three blocks from our office".
In this regard, the decision in Re Black and The Queen (1973), 13 C.C.C. (2d) 446 (B.C.S.C.) does not advance the plaintiff's contention. There, the
signature on the search warrant was not accom panied by any designation of the office or author ity of the person who signed it. In his reasons for quashing that warrant, Mr. Justice Berger asked pointly how the person whose premises are to be searched is to know whether someone empowered by law to issue a warrant signed it. Such is not the circumstance here.
Nor is the plaintiff's case advanced by the cir cumstances evinced in Queen, The v. Welsford, [1969] S.C.R. 438; 4 D.L.R. (3d) 350, which moreover makes reference to jurisprudence argu ably opposed to the plaintiff's contention. In Wels- ford the Ontario Court of Appeal had unanimous ly held that an information, whose jurat bore a stamped facsimile signature of a justice of the peace above the words "A Justice of the Peace for the County of York", was a nullity. This decision was unanimously affirmed by the Supreme Court of Canada which simply adopted the reasons of McGillivray J.A., who spoke for the Court of Appeal. In adopting those reasons, however, the Chief Justice of Canada added (S.C.R., at page 441), that he expressed no opinion respecting the case to which McGillivray J.A. referred in which a typed or stamped signature was held to be valid.
Mr. Justice McGillivray, in Re R. v. Welsford, [1967] 2 O.R. 496 (C.A.), referred (at page 498) to the case of R. v. Fox, [1958] O.W.N. 141; 120 C.C.C. 289; 27 C.R. 132 (C.A.). This latter was a case, not of an absent designation of authority, nor yet of a stamped facsimile for a signature to a jurat, but of a summons under The Highway Traffic Act [R.S.O. 1950, c. 167] bearing a stamped name for the signature of the justice of the peace. After reviewing the authorities, Laidlaw J.A., on behalf of the Court of Appeal, wrote as follows (at pages 144-145 O.W.N.; 293 C.C.C.; 137 C.R.):
I have no doubt whatever that the signature of the Justice, stamped on the summons in question, was placed there with the intention of authenticating the summons as being that of the Justice whose name was so stamped on it. Finally, in every case where a Justice has reached a judicial decision that a case for the issue of a summons is made out, then a summons must be issued as a matter of course pursuant to s. 440 of the Criminal Code, and the act of issuing it may be properly regarded as an
act in the nature of procedure, and not judicial in character. If the signature of a Justice were stamped on a summons properly completed in form and content by some person in accordance with express authority or direction of the Justice, then, in my opinion, the issue of that summons would be valid. Likewise, in my opinion, a summons so stamped by a person subject to the control and direction of a Justice and acting in accordance with long established practice in his office, must be deemed to be signed by his authority, and the issue of it is valid.
I hold that the summons in question was validly signed and issued and, therefore, this appeal should be dismissed.
Clearly, the authority of R. v. Fox, which the Supreme Court of Canada did not repudiate, tells against the plaintiff's, contention of illegality.
In the case at bar the warrant was signed in the handwriting of the justice of the peace. The true copy of the warrant which was exhibited to Messrs. MacKay and Hillier, Exhibit 1(38), bore the stamped words:
Margaret Mann
JUSTICE OF THE PEACE in and for the PROVINCE OF BRITISH COLUMBIA
and it was dated June 12, 1985, at Municipality of Salmon Arm. The printed form of warrant dis closes that it was prepared for issuance pursuant to section 10 of the Radio Act.
This true copy of the warrant, bearing as it does the stamped name and office, manifests two vir tues of which no one can seriously complain: the name is perfectly legible and unmistakable; and the official authority to issue a warrant is clearly shown. It is less likely to cause apprehension of forgery or fakery than a warrant which might bear an illegible handwritten scrawl for a signature, for in this latter instance the occupier of the premises would not know how to verify the identity of the writer. With a perfectly legible stamped name printed as that of the justice of the peace, in most instances in these days of widespread telephone services, verification is infinitely easier than it would be if one had to decypher or describe an illegibly penned scrawl. Many signatures unfortu nately do correspond with that description for those who see them for the first time, and who know not by whom they are penned.
Of course, it would have been better for the justice of the peace to have written her name as well as to have applied her stamp. That would be the best of both worlds, but it is unrealistic to propound that double indication as a necessary rule. Many justices of the peace, this one perhaps among them, are called upon from time to time, or even daily, to issue a prodigious quantity of pro cess. For them, the rubber stamp is a valuable, if not crucial, aid of constant and legible quality. In this instance, where the warrant was really signed by the justice's own hand, the stamped true copy is quite acceptable. It is lawful.
Ordinarily, peace officers do not give advance warning of their intentions to obtain a search warrant. They are not required to do so. It is right, prudent and almost always necessary to swoop down without notice once the warrant has been issued. Such is surely the case when that which is sought can easily be moved in order to evade seizure. That is obvious. It is, however, equally obvious that Shuswap was unlikely to move its radio station and all of its radio apparatus, if notified of the impending search. Shuswap would have had to be that thorough in order to evade the scope of section 10 of the Radio Act. In fact Shuswap's principals were expecting the search action which did occur (transcript: page 153) and they made no attempt to hide their radio apparatus. Now, it may be that Mr. Whiteside felt that, in the manner of regular peace officers, he ought not to give advance warning to Mr. MacKay, with whom he spoke by telephone, about 9:00 a.m. on June 12, 1985. His response to Mr. MacKay's question (transcript: page 368) was cal culated to deceive Mr. MacKay. That attempt to deceive may be morally deplorable, but it does not render the subsequent search unlawful or unrea sonable. To hold otherwise would be to jeopardize necessary police powers of search and seizure in law enforcement.
Neither the warrant nor the ensuing, but abort ed, search and seizure action has been invalidated upon any of the foregoing considerations.
Section 10 of the Radio Act is recited earlier in these reasons. The purpose or objective of that provision is to prevent—indeed, to suppress or to eliminate—the use and operation of radio apparatus without a licence under that Act or a TC & OC in that behalf, by means of search for and seizure of the same for evidence in a prosecu tion under sections 3 and 11 of the Act. Upon conviction of the accused, the radio apparatus to which the offence relates may, in the Minister's discretion, be forfeited to Her Majesty for such disposition as the Minister may direct. The clear intent of Parliament is to invoke stern measures to ensure the enforcement and to compel observance of the regulatory regime which it created. The above-mentioned purpose, objective and legislative intention, are entirely legitimate in terms of Par liament's jurisdiction and justifiable. No oblique or nefarious motive can be imputed to the Minister or departmental officials in seeking to enforce the law. Their intentions must be held to be in com plete conformity with Parliament's intentions. (Transcript: pages 373 and following.)
The plaintiff, however, contends that their true motive must have been to terminate or at least temporarily shut down Shuswap's operations. Shuswap asserts this in light of Mr. Hillier's offer, to the departmental inspectors, to admit possession of the radio apparatus for the purpose of operating Shuswap's receiving undertaking. Such an admis sion was offered and accepted in the Lount case, to endure until final judgment. No doubt the direct effect of section 10, when invoked, is to terminate operations of an illegal broadcasting undertaking. The determination of illegality, if disputed, must be left to judicial determination. However, in terms of a TC & OC, no one knows better than the Minister and departmental officials whether a TC & OC has been issued; and no one knows better than Shuswap whether a TC & OC has been received. Mr. Hillier, thoroughly cognizant of Shuswap's earlier conviction under the Broadcast ing Act made his offer of admissions too late and to persons who had no authority to accept them. Because civil proceedings for a declaration may be less draconian than a prosecution, and since Shus- wap has continued to operate after the searchers
were restrained on June 12, 1985, the formal arrangement made in the Lount case has been effected de facto in these proceedings, at least until this judgment of the Trial Division is concerned.
That artificial person, Shuswap, has the right to be secure against unreasonable search and seizure, as proclaimed in section 8 of the Charter. The circumstances of this case, all above described in pertinent detail, do not evince the violations of section 8 which were described and found by the Supreme Court of Canada in Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145; [1984] 6 W.W.R. 577. The justice of the peace, here, in fact, according to the evidence, did assess the conflicting interests of the State and of Shuswap in an entirely neutral and impartial manner. The information indicated reasonable and probable grounds, established upon oath, to believe that the offence had been, and was being, committed and that there was evidence of the commission of the offence to be found at Shuswap's business premises.
Moreover, the inspectors' action in attempting to enforce the warrant was no descent upon, or disruption of, an enterprise which was merely going about its unexceptionably lawful business. Its business, a broadcasting receiving undertaking, in the absence of a TC & OC, is per se illegal. Hence considerations of unreasonable disruption of legitimate business operations or professionnal practice do not arise here.
The Court finds that the plaintiffs right to be secure against unreasonable search and seizure was respected and was not violated on June 12, 1985.
DAMAGES
The plaintiff's counsel indicated (transcript: pages 131 to 139, and page 490) that Shuswap seeks only nominal damages or damages at large. The departmental inspectors and the members of the RCM Police who assisted them, acting as they were, on reasonable and probable grounds, were
justified in doing what they were authorized or required to do pursuant to the warrant. Section 25 of the Criminal Code [R.S.C. 1970, c. C-34] shields them in using as much force as was neces sary for that purpose. However no force was needed, for Mr. MacKay helped them to dismantle Shuswap's radio apparatus in the hope of avoiding damage to that precious equipment. He helped until the Supreme Court of British Columbia ordered the seizure to be stopped. Nevertheless a down-converter was broken in the dismantling pro cess. The damage amounted to a sum between $400 and $500. If the search had been either unlawful or unreasonable the plaintiff would be entitled to compensation from the Crown. Unfor tunately, in these circumstances, it is not entitled to compensation. Shuswap is not an innocent third party. Its illegal use of radio apparatus was the cause of the lawful search, and the apparatus itself was the target. Such are the circumstances where by compensation is to be denied.
Shuswap also complains of loss of business reve nue resulting from the interruption of its program services on June 12, 1985. Since its business was founded on illegal operations, it has no legitimate complaint in this regard. Indeed, as Mr. MacKay acknowledged, factors, other than any which might be attributable to the defendants, surely contributed to the diminution of Shuswap's clien- tele. (Transcript: pages 135 to 138.) No damages will be awarded in this regard.
Had the conclusions of fact and law herein been disposed in favour of the plaintiff, the Court would assess nominal damages, at large, in the amount of $8,000.
The defendants seek a permanent injunction restraining the plaintiff from operating as a broad casting undertaking without the necessary statu tory authorizations. While the plaintiff through its principals, Messrs. MacKay and Hillier, has vigourously, if not recklessly, advanced its conten tions about the applicability of the Radio Act to its undertaking, and has been wrong in those conten tions, it has not evinced a flouting of the law. In any event the enforcement provisions of the Radio
Act are amply adequate and swift to counter any apprehended future misconduct on the part of Shuswap. The nature of the use of radio apparatus in a cable television service renders that apparatus readily discoverable. Accordingly, the statute law is readily enforceable. The Court will not issue the injunction in these proceedings.
SUMMARY
The plaintiffs claims for relief are dismissed.
The defendants' claim for an injunction is dismissed.
The defendants are entitled to the declarations sought in their counterclaim, thus:
(i) The plaintiff is in possession of radio apparatus as defined in the Radio Act, and it operates a radio station as defined in that Act;
(ii) The said radio apparatus and radio station are subject to the provisions of subsection 3(1) of the Radio Act; and
(iii) The plaintiff's operation of the said radio apparatus and radio station for commercial gain constitutes it a broadcasting undertaking such that the plaintiff requires a technical con struction and operating certificate in order to render the said undertaking lawful pursuant to the Radio Act.
The third declaration's phraseology is re-arranged for clarity and is amended to insert the words "for commercial gain", in order to conform correctly with the Lount decision.
The Court makes, as well, the following declara tion in order to reify a crucial finding in these reasons:
(iv) In the ordinary and usual course of the administration of the provisions of the Radio Act and of the Department of Communications Act, the Minister of Communications is justi fied in discontinuing consideration of any application for a technical construction and operating certificate when and if the applicant be not approved by the CRTC for holding a broad casting licence under the Broadcasting Act.
The defendants, plaintiffs by counterclaim, are entitled to have their party-and-party costs from Shuswap upon taxation thereof.
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