federal court of canada JESUS RODRIGUEZ HERNANDEZV THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Date: 20121204 Docket: IMM-2409-12 Citation: 2012 FC 1417

Source: http://decisions.fct-cf.gc.ca/en/2012/2012fc1417/2012fc1417.html





















Date: 20121204


Docket: IMM-2409-12




Citation: 2012 FC 1417


Ottawa, Ontario, December 4, 2012


PRESENT: The Honourable Mr. Justice Zinn





BETWEEN:










JESUS RODRIGUEZ HERNANDEZ












Applicant






and












THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS












Respondent



















REASONS FOR JUDGMENT AND JUDGMENT





[1] Is it “people smuggling” when not done for financial or other material benefit, but for humanitarian reasons? That is the issue raised in this application.





[2] The applicant submits that the Immigration Division of the Immigration and Refugee Board [the ID] erred in its interpretation of “people smuggling” in paragraph 37(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] by failing to include the requirement that the smuggler obtain, “directly or indirectly, a financial or other material benefit” [the Profit Element] as is required in the Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime [the Protocol].





[3] This very issue was recently considered by this Court in B010 v Canada (Minister of Citizenship and Immigration, 2012 FC 569 [B010] and B072 v Canada (Minister of Citizenship and Immigration), 2012 FC 899 [B072]. In those decisions, the Court found reasonable the ID’s finding that “people smuggling” is to be interpreted in a manner consistent with the offence of "Human Smuggling" in subsection 117(1) of the Act which does not require the Profit Element.[1]





[4] The applicant submits that these prior judgments should not be followed because they did not consider De Guzman v Canada (Minister of Citizenship and Immigration), 2005 FCA 436 [De Guzman], on the application of paragraph 3(3)(f) of the Act and the “incorporation of international human rights instruments into Canadian immigration law.” The applicant further submits that the proper standard of review of the ID's interpretation of paragraph 37(1)(b) of the Act is correctness and not reasonableness, as held in those judgments, and that the correct interpretation of “people smuggling” in paragraph 37(1)(b) includes the Profit Element.





Background


[5] The applicant is a citizen of Cuba who says that he was persecuted and imprisoned for speaking out against its government and in joining others who opposed it. In 2001, he fled Cuba for Florida where he was granted refugee status. While in Florida, he continued to speak publicly against the Cuban government.





[6] In November 2003, he and two others took a small boat from Florida to Cuba to retrieve family members they left in Cuba and transport them to the United States. It was not done for any profit motive – it was arguably a humanitarian mission. They, and the 48 members of their extended families on board, were intercepted and detained by the US Coast Guard on their return trip. The applicant was charged with three counts of Alien Smuggling pursuant to Title USC §1324(a)(2)(A) which defines that crime as follows:


(2) Any person who, knowing or in reckless disregard of the fact that an alien has not received prior official authorization to come to, enter, or reside in the United States, brings to or attempts to bring to the United States in any manner whatsoever, such alien, regardless of any official action which may later be taken with respect to such alien shall, for each alien in respect to whom a violation of this paragraph occurs—





(A) be fined in accordance with title 18 or imprisoned not more than one year, or both; or





(B) in the case of—





(i) an offense committed with the intent or with reason to believe that the alien unlawfully brought into the United States will commit an offense against the United States or any State punishable by imprisonment for more than 1 year,





(ii) an offense done for the purpose of commercial advantage or private financial gain, or





(iii) an offense in which the alien is not upon arrival immediately brought and presented to an appropriate immigration officer at a designated port of entry,





be fined under title 18 and shall be imprisoned, in the case of a first or second violation of subparagraph (B)(iii), not more than 10 years, in the case of a first or second violation of subparagraph (B)(i) or (B)(ii), not less than 3 nor more than 10 years, and for any other violation, not less than 5 nor more than 15 years.





[7] The applicant pled guilty and was sentenced to a term of imprisonment of twelve months and one day. As a consequence, he lost his refugee status in the USA and was subject to deportation to Cuba. Rather than return to Cuba, where he claims he faces persecution, he came to Canada and sought Convention refugee status. His claim for protection was suspended pending a determination of his admissibility to Canada.





[8] On January 19, 2010, an immigration officer wrote a report under subsection 44(1) of the Act expressing the opinion that the applicant was inadmissible pursuant to paragraph 36(1)(b) of the Act on grounds of serious criminality for “having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.” The officer found that the conviction for Alien Smuggling equates to the offence of Human Smuggling in subsection 117(1) of the Act which reads as follows:




117(1) No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act.











117(1) Commet une infraction quiconque sciemment organise l’entrée au Canada d’une ou plusieurs personnes non munies des documents — passeport, visa ou autre — requis par la présente loi ou incite, aide ou encourage une telle personne à entrer au Canada.






It is not disputed that the Profit Element is not a necessary element of the offence of Human Smuggling and there is no issue in this proceeding that Alien Smuggling equates to the offence of Human Smuggling in subsection 117(1) of the Act.





[9] On March 31, 2011, an immigration officer wrote a second report under subsection 44(1) of the Act expressing the opinion that the applicant was inadmissible pursuant to paragraph 37(1)(b) of the Act on grounds of organized criminality because “he engaged in the activity of people smuggling” given the acts to which he admitted that led to his conviction in the USA for Alien Smuggling.





[10] Paragraph 37(1)(b) of the Act provides that a foreign national who has engaged in people smuggling is inadmissible on the grounds of organized criminality unless he satisfies the Minister of Public Safety and Emergency Preparedness that his presence in Canada would not be detrimental to the national interest. The relevant provision reads as follows:




37(1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for


…


(b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering.








(2) The following provisions govern subsection (1):








(a) subsection (1) does not apply in the case of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest; …








37(1) Emportent interdiction de territoire pour criminalité organisée les faits suivants:


…





(b) se livrer, dans le cadre de la criminalité transnationale, à des activités telles le passage de clandestins, le trafic de personnes ou le recyclage des produits de la criminalité.


(2) Les dispositions suivantes régissent l’application du paragraphe (1):


(a) les faits visés n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l’intérêt national; …






[11] The ID conducted an admissibility hearing and in its decision of January 27, 2012, it made two findings. First, the ID found that there were reasonable grounds to believe that the offence for which the applicant had been convicted in the USA (Alien Smuggling) would constitute an offence in Canada punishable by a term of imprisonment of at least 10 years, i.e. the offence of Human Smuggling set out in subsection 117(1) of the Act. Accordingly, he was found inadmissible to Canada on grounds of serious criminality pursuant to paragraph 36(1)(b) of the Act. The applicant takes no issue with that finding in this proceeding. Second, notwithstanding that the Profit Element was absent from the applicant's smuggling activity, the ID found that there were reasonable grounds to believe that he is inadmissible to Canada on grounds of organized criminality for engaging in the transnational crime of “people smuggling” pursuant to paragraph 37(1)(b) of the Act.





[12] As a consequence of these findings, a deportation order was issued against Mr. Rodriguez Hernandez pursuant to paragraph 45(d) of the Act and paragraph 229(1)(e) of the Immigration and Refugee Protection Regulations, SOR/2002-227.





Standard of Review


[13] Is the ID’s interpretation of paragraph 37(1)(b) of the Act reviewable on the standard of reasonableness, as the respondent submits, or correctness, as the applicant submits? There are two very recent decisions of this Court on this question, and they reach different conclusions.





[14] Justice Noël in B010 held at para 33 of his Reasons that the ID’s interpretation of paragraph 37(1)(b) of the Act is reviewable on the standard of reasonableness.


With regard to the ID's interpretation of the IRPA, the Supreme Court has consistently spoken of the need for deference when a tribunal is interpreting its own statute (Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61 at para 30, [2011] SCJ 61 [Alberta Teachers']; Smith v Alliance Pipeline Ltd, 2011 SCC 7 at paras 37-39 [Alliance Pipeline], [2011] 1 SCR 160; Khosa, above, at para 44; Dunsmuir v New Brunswick, 2008 SCC 9 at para 54, [2008] 1 SCR 190 [Dunsmuir]). Accordingly, this Court will apply the standard of reasonableness to the ID's interpretation of para 37(1)(b) of the IRPA, ensuring that there was justification, transparency, and intelligibility within the decision-making process and that the ID's interpretation fell within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir, above, at para 47).





[15] Justice Snider in Canada (Minister of Citizenship and Immigration) v Singh Dhillon, 2012 FC 726 [Singh Dhillon], held at para 20 of her Reasons that the ID’s interpretation of paragraph 37(1)(b) of the Act is reviewable on the standard of correctness. In reaching her conclusion, Justice Snider refers to the instructions of the Supreme Court of Canada in decisions that include those referenced by Justice Noël, but notes that mere interpretation of a tribunal’s own statute does not automatically result in the standard of review being reasonableness. She cites Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53 [Mowat], at para 24, wherein a unanimous Supreme Court wrote the following:


In substance, if the issue relates to the interpretation and application of its own statute, is within its expertise and does not raise issues of general legal importance, the standard of reasonableness will generally apply and the Tribunal will be entitled to deference. [emphasis added]





[16] Justice Snider held that the ID’s interpretation of paragraph 37(1)(b) of the Act should be interpreted on the standard of correctness because, although that provision was found in its home statute, the issue was “one of general legal importance.”





[17] In light of these conflicting decisions, the applicable standard of review has not been “determined in a satisfactory manner” by prior cases and thus it is an open question in this application which standard of review should apply to the ID’s interpretation of paragraph 37(1)(b) of the Act: Dunsmuir v New Brunswick, 2008 SCC 9, at para 62 [Dunsmuir].





[18] In Dunsmuir, the Supreme Court held that a decision-maker’s interpretation of its home statute will “usually” attract the reasonableness standard. The Supreme Court also reaffirmed in Dunsmuir at paras 55, and 58-61, that “a question of law of ‘central importance to the legal system … and outside the … specialized area of expertise’ of the administrative decision maker will always attract a correctness standard,” as will constitutional questions and “true” questions of jurisdiction or vires [emphasis added]. These exceptions to the home statute presumption were not said to be exhaustive. Indeed, the Supreme Court went on to say at para 55 that “[o]n the other hand, a question of law that does not rise to [the level of central importance] may be compatible with a reasonableness standard where [there is a privative clause and a discrete and special administrative regime]” [emphasis added]. Accordingly, Dunsmuir left the door open for the correctness standard to apply to a question of law that was both inside a decision-maker’s home statute and was not of “central importance” to the legal system nor truly jurisdictional in nature. However, no test as to when the home statute presumption would otherwise be rebutted was articulated.





[19] In Khosa v Canada (Minister of Citizenship & Immigration), 2009 SCC 12 [Khosa], the Supreme Court first considered the application of Dunsmuir to the Federal Courts Act and, regarding questions of law, it held at para 44 that they are generally reviewable by this Court on the correctness standard:





Judicial intervention is authorized [pursuant to paragraph 18.1(4)(c) of the Federal Courts Act] where a federal board, commission or other tribunal





(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;





Errors of law are generally governed by a correctness standard. Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 (S.C.C.), at para. 37, for example, held that the general questions of international law and criminal law at issue in that case had to be decided on a standard of correctness. Dunsmuir (at para. 54), says that if the interpretation of the home statute or a closely related statute by an expert decision maker is reasonable, there is no error of law justifying intervention. Accordingly, para. (c) provides a ground of intervention, but the common law will stay the hand of the judge(s) in certain cases if the interpretation is by an expert adjudicator interpreting his or her home statute or a closely related statute. This nuance does not appear on the face of para. (c), but it is the common law principle on which the discretion provided in s. 18.1(4) is to be exercised. Once again, the open textured language of the Federal Courts Act is supplemented by the common law.








[20] The issue in Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 [Mugesera], cited by the Supreme Court in Khosa, was whether the Appeal Division of the Immigration and Refugee Board [the IAD] had properly found Mr. Mugesera inadmissible pursuant to provisions of the since-replaced Immigration Act, RSC 1985, c I-2. Those provisions required the IAD to determine whether Mr. Mugesera had committed an act or omission constituting an offence in the place in which the act or omission was committed and which would constitute a criminal offence in Canada. That exercise necessarily involved the interpretation – although not the direct application – of both domestic and foreign criminal law. The correctness standard of review was applied.





[21] Khosa was decided after Dunsmuir and supports the proposition that decisions by the ID that involve the interpretation of criminal or international law, even if not in the context of applying it – are owed no deference by a reviewing court.





[22] Two years after Khosa, in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 [ATA], Justice Rothstein, at para 30, was thought by some to have strengthened the home statute presumption:


There is authority that “[d]eference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” (Dunsmuir, at para. 54; Alliance Pipeline Ltd. v. Smith, 2011 SCC 7, [2011] 1 S.C.R. 160 (S.C.C.), at para. 28, per Fish J.). This principle applies unless the interpretation of the home statute falls into one of the categories of questions to which the correctness standard continues to apply, i.e., "constitutional questions, questions of law that are of central importance to the legal system as a whole and that are outside the adjudicator's expertise, ... questions regarding the jurisdictional lines between two or more competing specialized tribunals [and] true questions of jurisdiction or vires" (Canada (Attorney General) v. Mowat, 2011 SCC 53 (S.C.C.), at para. 18, per LeBel and Cromwell JJ., citing Dunsmuir, at paras. 58, 60-61). [emphasis added]





[23] Justice Cromwell, although concurring in the result, dissented at para 99 from Justice Rothstein’s reasons on the home statute presumption:


The point is this. The proposition that provisions of a "home statute" are generally reviewable on a reasonableness standard does not trump a more thorough examination of legislative intent when a plausible argument is advanced that a tribunal must interpret a particular provision correctly. In other words, saying that such provisions in “home” statutes are “exceptional” is not an answer to a plausible argument that a particular provision falls outside the “presumption” of reasonableness review and into the “exceptional” category of correctness review. Nor does it assist in determining by what means the “presumption” may be rebutted.





[24] Six months later, in Rogers Communications Inc v Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, Justice Rothstein for the majority clarified the holding in ATA at para 16, as follows:


I must also respectfully disagree with Abella J.'s characterization, at para. 5, of the holding in ATA as meaning that the “exceptions to the presumption of home statute deference are ... constitutional questions and questions of law of central importance to the legal system and outside the adjudicator's specialized expertise”. Dunsmuir had recognized that questions which fall within the categories of constitutional questions and questions of general law that are both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise were to be reviewed on a correctness standard (Dunsmuir, at paras. 58 and 60). ATA simply reinforced the direction in Dunsmuir that issues that fall under the category of interpretation of the home statute or closely related statutes normally attract a deferential standard of review (ATA, at para. 39; Dunsmuir, at para. 54). My colleague's approach would in effect mean that the reasonableness standard applies to all interpretations of home statutes. Yet, ATA and Dunsmuir allow for the exceptional other case to rebut the presumption of reasonableness review for questions involving the interpretation of the home statute. [emphasis added]





[25] As a result, the current state of the law is this: the home statute presumption applies unless (1) it is a constitutional question, (2) a question of general law of central importance to the legal system and outside the decision-maker's specialized expertise, (3) a true question of jurisdiction or of the jurisdictional lines between two or more competing specialized tribunals, or (4) “an exceptional other case.”





[26] As to what may fall into the “exceptional other case” one looks first to previous decisions “determined in a satisfactory manner” that applied the correctness standard: Dunsmuir at para 62.





[27] As discussed above, the Supreme Court in Khosa held that decisions of the ID that involve the interpretation of criminal or international law rightly attract the correctness standard. That was held to be so even where the decision-maker was directed to interpret (and not even apply) that law by its home statute, as was the case in Mugesera, and where, like the present case, such interpretation was necessary in order to determine an individual’s inadmissibility for criminality. The Federal Court of Appeal has also recently held that the implication of international law is a factor favouring the correctness standard of review: See Idahosa v Canada (Minister of Public Safety & Emergency Preparedness), 2008 FCA 418, at para 17. That approach is consistent with that the Court of Appeal took in De Guzman which also involved an examination of international law.





[28] In this case, the issue is whether the ID correctly interpreted the expression “people smuggling” in paragraph 37(1)(b) of the Act in order to determine whether the applicant was inadmissible for “organized criminality.” In its reasons, the ID’s interpretation of that expression was based, among other things, on section 117 of the Act, which is undoubtedly criminal law; on the judgment of the Ontario Superior Court of Justice in R v Alzehrani, [2008] OJ 4422, applying that criminal offence; and on definitions contained in the Protocol and the United Nations Convention against Transnational Organized Crime, UNTS vol 2225, p 209 [Organized Crime Convention], i.e. international law. Indeed, the ID by its own conclusion is effectively interpreting criminal law by concluding that “people smuggling” for the purposes of paragraph 37(1)(b) is the same as the criminal offence of Human Smuggling created by section 117 of the Act.





[29] The present case is therefore perfectly described in Khosa at para 44, as an example where the correctness standard applies.





[30] In addition, although it is not necessary for the conclusion I have reached, I am also of the view that the question of who is or is not admissible to Canada is a question of “central importance to the legal system.” A finding on admissibility dictates the right of a non-citizen to enter into and remain in Canada, either as an immigrant or as a protected person. The right of a non-citizen to remain in Canada and the protection, if any, he or she is entitled to receive prior to removal, are fundamental to the Canadian legal system. Therefore, it is the correct interpretation, and not merely a reasonable interpretation of the relevant statutory provisions, that is required.





[31] I therefore find that correctness is the appropriate standard of review for the issue involved in this application: the interpretation of “people smuggling” in paragraph 37(1)(b) of the Act.





International Human Rights Instruments and the Interpretation of the Act


[32] I turn to consider whether the ID erred in law by interpreting the phrase “people smuggling” in paragraph 37(1)(b) of the Act synonymously with the crime of Human Smuggling in section 117 of the Act. As discussed above, what is at issue, specifically, is whether “people smuggling” for the purposes of paragraph 37(1)(b) requires the Profit Element.





[33] The applicant’s argument in a nutshell is this. Paragraph 3(3)(f) of the Act requires that the other provisions of the Act “be construed and applied in a manner that … complies with international human rights instruments to which Canada is signatory.” De Guzman is authoritative and held at para 83 that “IRPA must be interpreted and applied consistently with an instrument to which paragraph 3(3)(f ) applies, unless, on the modern approach to statutory interpretation, this is impossible [emphasis added].”





[34] More recently, the Supreme Court in Németh v Canada (Minister of Justice), 2010 SCC 56, held at para 34 that “where possible, statutes should be interpreted in a way which makes their provisions consistent with Canada's international treaty obligations and principles of international law.” However, “the presumption that legislation implements Canada's international obligations is rebuttable. If the provisions are unambiguous, they must be given effect:” at para 35.





[35] Importantly, De Guzman teaches that one must examine the “impugned provision in the context of the entire legislative scheme,” and not in isolation. As a result, one cannot simply “adopt” the Protocol’s definition without examining both how that definition fits into the legislative scheme as a whole and how that whole then coexists with relevant international human rights instruments.





[36] To summarize, the effect of these authorities is that the legislative scheme of the Act as a whole must be interpreted and applied consistently with international human rights instruments described in paragraph 3(3)(f) of the Act, unless, on the modern approach to statutory interpretation, this is impossible.





The Scheme of the Act as a Whole and the Applicant


[37] The applicant made an in-Canada claim for refugee protection to an officer, which he was entitled to do as he was not subject to a removal order: subsection 99(3). The officer was then required to determine whether the applicant’s claim for protection was eligible to be referred to the Refugee Protection Division of the Immigration and Refugee Board [the RPD]: subsection 100(1). The officer was of the opinion that the applicant was inadmissible to Canada (first for serious criminality and latter for organized crime) and accordingly, prepared a report setting out the relevant facts and transmitted it to the Minister: subsection 44(1). The Minister, satisfied that the report was “well-founded,” referred the report to the ID for an admissibility hearing: subsection 44(2). When the report was referred to the ID for determination, the officer suspended consideration of the applicant’s claim for protection: subsection 100(2).





[38] The result of the applicant's admissibility hearing was a finding that he was inadmissible to Canada both on the grounds of serious criminality (paragraph 36(1)(b)) and on the grounds of organized criminality (paragraph 37(1)(b)) as a consequence of his actions and his conviction in the United States for Alien Smuggling. Mr. Hernandez was ordered deported, pursuant to paragraph 45(d) of the Act, on account of each finding.





[39] Pursuant to paragraphs 37(2)(a) and 4(2)(d) of the Act, the applicant may negate the finding of inadmissibility for organized criminality if he “satisfies the Minister [of Public Safety and Emergency Preparedness] that [his] presence in Canada would not be detrimental to the national interest.” Based on the record before me, it appears Mr. Hernandez has not yet attempted to so satisfy that Minister.





[40] If the applicant is unsuccessful at satisfying the Minister that his presence is not detrimental to the national interest, or if he does not try to do so, then, pursuant to paragraph 101(1)(f) of the Act, the finding of organized criminality will bar him from making a refugee claim. The finding of serious criminality, on the other hand, which is not contested in this application, only bars the applicant from making a refugee claim if the “Minister [of Citizenship and Immigration] is of the opinion that he is a danger to the public in Canada:” paragraph 101(2)(b). There is also no evidence that such a danger opinion has been issued by that Minister.





[41] Individuals inadmissible for having engaged in either serious criminality (as described in paragraph 112(3)(b)) or organized criminality and who are subject to a deportation order, such as the applicant, may apply for a Pre-Removal Risk Assessment (PRRA) under the Act, albeit in a limited manner. In particular, paragraph 113(d) provides that those, like the applicant, who are inadmissible on grounds of organized criminality, shall have their risk assessed “on the basis of the factors set out in section 97, i.e. “a danger … of torture,” or “a risk to their life or to a risk of cruel and unusual treatment or punishment.” They are not entitled to have their risk assessed on the basis of the factors set out in section 96, i.e. “a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion.”





[42] In summary, if the ID’s finding that the applicant is inadmissible on grounds of organized criminality stands, then he has the following options available to challenge his removal to Cuba:


a. He can attempt to satisfy the Minister of Public Safety and Emergency Preparedness that his presence is not detrimental to Canada’s national interest; if he succeeds, then his inadmissibility status is waived and he can advance a claim for refugee protection.





b. If he is unable to change his inadmissibility status, then he is entitled to a PRRA only as to whether he is at risk of torture, or there is a risk to his life or a risk of cruel and unusual treatment and punishment if he is removed from Canada; not whether he is at risk of persecution.





Relevant International Human Rights Instruments


[43] I turn now to consider the relevant international human rights instruments to which Canada is a signatory.





[44] As described above, the applicant submits that removing the Profit Element from “people smuggling” is inconsistent with the Protocol. In particular, he says that by including the Profit Element in the definition of the “smuggling of migrants,” the Protocol focused on those criminals who, for profit, prey on the poor and disadvantaged, and made it clear that family members, friends, and non-governmental organizations that assist others to effect illegal entry were not intended to be captured. Support for the latter assertion comes from the following passage in the UNHCR Summary Position on the Protocol against the Smuggling of Migrants by Land, Sea and Air and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the UN Convention against Transnational Organized Crime:


The Protocol against Smuggling is also clear in that it does not aim at punishing persons for the mere fact of having been smuggled or at penalizing organizations which assist such persons for purely humanitarian reasons.





[45] I cannot accept the applicant’s submission that removing the Profit Element in paragraph 37(1)(b) of the Act is inconsistent with the Protocol for the following reasons.





[46] The Organized Crime Convention concerns the criminalization of certain transnational conduct. Article 3, paragraph 1 states:


This Convention shall apply, except as otherwise stated herein, to the prevention, investigation and prosecution of:





(a) The offences established in accordance with articles 5, 6, 8 and 23 of this Convention; and





(b) Serious crime as defined in article 2 of this Convention;





where the offence is transnational in nature and involves an organized criminal group. [emphasis added]








[47] Moreover, paragraph 1(a) of Article 6 of the Protocol, annexed to the Organized Crime Convention, is clearly intended to criminalize the specific transnational crime of “smuggling of migrants:”


1. Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally and in order to obtain, directly or indirectly, a financial or other material benefit:





(a) The smuggling of migrants; …[emphasis added]





[48] Unlike the Protocol, which establishes crimes, paragraph 37(1)(b) of the Act is an inadmissibility provision with consequences to a foreign national's ability to claim protection, and a permanent resident's or foreign national's ability to remain in Canada.





[49] Canada’s international commitment to criminalize the smuggling of migrants when engaged in transnationally, has no bearing on when it must permit persons to seek Convention refugee protection or when the exceptions to the principle of non-refoulement will be met. There is another international human rights instrument to which Canada is a signatory that bears more directly on these issues: The Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees [collectively the Refugee Convention].





[50] Article 33 of the Refugee Convention “embodies in refugee law the principle of non-refoulement which has been described as the cornerstone of the international refugee protection regime:” Németh, para 18. It provides as follows:


Article 33. - Prohibition of expulsion or return ("refoulement")





1. No Contracting State shall expel or return (" refouler ") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.





2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country. [emphasis added]





[51] Standing alone, paragraph 1 of Article 33 of the Refugee Convention would prevent Canada from returning the applicant to Cuba without having made an assessment of the well-foundedness of his fear of persecution or torture under both sections 96 and 97 of the Act. However, paragraph 2 provides that the non-refoulement principle does not extend to those who, by virtue of “having been convicted by a final judgment of a particularly serious crime, [constitute] a danger to the community of that country.”





[52] Paragraph 3(3)(f) of the Act dictates that these provisions of the Act, relating to persons such as this applicant, must be examined for consistency with this international human rights instrument.





[53] What are the consequences of this applicant being found inadmissible due to organized criminality? If the applicant is inadmissible under paragraph 37(1)(b) of the Act for organized criminality, he will not get a refugee hearing (paragraph 101(1)(f) of the Act) and he will be returned without any examination of his claims of persecution, because the PRRA will not capture persecution factors under section 96.





[54] However, this is not necessarily inconsistent with the Refugee Convention because of the danger-related ‘safety-valve’ in paragraph 37(2)(a) of the Act. That mechanism prevents the just-mentioned consequences from befalling people smugglers who satisfy the Minister that their presence in Canada is not detrimental to the "national interest." The Court of Appeal in Agraira v Canada (Minister of Public Safety and Emergency Preparedness), 2011 FCA 103, affirmed that “Parliament has placed the consideration of national interest within the context of national security and public safety” and that, as a result, “the principal, if not the only, consideration in the processing of applications for ministerial relief [regarding the “national interest”] is national security and public safety, subject only to the Minister’s obligation to act in accordance with the law and the Constitution:” at paras 39 and 50. Persons who are detrimental to the national interest of Canada are persons who are “a danger to the community of that country” within the meaning of the Refugee Convention and thus, disentitled from protection from persecution according to the Refugee Convention.





[55] As a result, I am satisfied that the scheme of the Act as a whole, relevant to the applicant, is not truly inconsistent with either the Protocol or the Refugee Convention.





[56] However, the fact that the ID’s interpretation is not truly inconsistent with international law does not end the matter. What remains to be done is to ascertain the correct legal interpretation of "people smuggling" in paragraph 37(1)(b) of the Act.





What Does “People Smuggling” in the Act Mean?


[57] Justice Noël in B010 was examining, as he put it at para 33, whether “the ID’s interpretation [of paragraph 37(1)(b)] fell within the range of possible, acceptable outcomes which are defensible in respect of the facts and the law (Dunsmuir, above, at para 47).” A reasonable interpretation of a statutory provision may not be the correct one. In fact, in this case there appear to be two equally reasonable but competing interpretations of “people smuggling.” On the reasonableness standard of review, Justice Noël’s task was not to determine the correct interpretation. At para 36 he said: “I must stress that in applying the reasonableness standard of review, this Court’s task is not to assess the applicant’s proposed definition, but only to determine whether the ID’s chosen interpretation falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir, above, at paras 47 and 54).” Accordingly, and although I take guidance from the reasoning of Justice Noël, neither comity nor precedent requires that I follow it. My task, based on the correctness standard of review, is to determine the one correct interpretation of paragraph 37(1)(b) of the Act.





[58] For the following reasons, I conclude that the crime of Human Smuggling in subsection 117(1) does not dictate the proper meaning of the activity of “people smuggling” in paragraph 37(1)(b) of the Act. Properly construed, “people smuggling” includes the Profit Element.





[59] My first reason for concluding that “people smuggling” in paragraph 37(1)(b) includes the Profit Element is that Parliament used different terms in paragraph 37(1)(b) and in section 117 – people smuggling versus human smuggling. I agree with Justice Noël that the different words themselves hardly clarify matters; however, it remains a canon of interpretation that different words appearing in the same statute should be given a different meaning: See Ruth Sullivan, Sullivan on the Construction of Statutes, 5d ed (Toronto: LexisNexis Canada, 2008) [Sullivan on Construction] at 216-218. This principle was expressed by Justice Malone in Peach Hill Management Ltd v Canada, [2000] FCJ 894 (CA), at para 12, as follows:


When an Act uses different words in relation to the same subject such a choice by Parliament must be considered intentional and indicative of a change in meaning or a different meaning.





[60] In my view, this observation from the Court of Appeal is all the more applicable and determinative when, as here, the two phrases came into the Act at the same time with the passage of Bill C-11 in 2001, which brought the Act into existence. The possibility of an oversight or drafting error is less likely in that circumstance than when legislation is amended piece-meal over time.





[61] What we have in the Act are two different phrases that appear to relate to the same subject matter: the bringing of persons into a country contrary to that country’s laws. In Ruth Sullivan, Statutory Interpretation, 2d ed (Toronto: Irwin Law, 2007) [Sullivan on Interpretation] at 185, the author directs what is to be done when faced with different terms relating to the same subject in the same statute:


[t]he next step in the analysis [is] to identify a plausible reason for distinguishing between the two groups. This may be done by noting how the two groups are treated differently under the Act, and then suggesting historical or desirable reasons for this difference in treatment





[62] Justice Noël did consider, at paragraph 44 of in his Reasons, how the two separate concepts (people smuggling and Human Smuggling) would be treated under the Act, and concluded that it made no sense that someone convicted of Human Smuggling would not be inadmissible to Canada:


This then raises a second important point. If the provisions of the IRPA are to be read in such a manner, how can we adopt an interpretation of the IRPA in which two sections hold different meanings when they employ such strikingly similar terms and appear to address the same conduct? One would be hard pressed to explain why an individual convicted of ‘organizing entry into Canada’ pursuant to section 117 could remain admissible to Canada despite para 37(1)(b). Indeed, when the offence set out in section 117 is located under the heading ‘human smuggling and trafficking’ and may result in both a fine of up to $1,000,000 and life imprisonment for any individual that smuggles a group of 10 or more persons, how can an individual convicted of this offence not be found to have engaged in ‘people smuggling’ under para 37(1)(b)? It strikes me as improbable that differing interpretations given to the terms ‘people smuggling’ and ‘human smuggling’ could justify such a contradiction. Hence, for the sake of coherence and consistency, unless the contrary is clearly indicated by the context, this is another indication that para 37(1)(b) should be interpreted in conformity with section 117 so that it may be given “a meaning that is harmonious with the Act as a whole” (Canada Trustco, above, at para 10). [emphasis added]





[63] The underlined passage asks why someone convicted of Human Smuggling in Canada under section 117 could remain admissible to Canada. The short answer is that such a person’s inadmissibility does not solely depend on section 37 of the Act. Section 36 of the Act also provides for inadmissibility – inadmissibility for “serious criminality.”





[64] It is true that if “people smuggling” requires the Profit Element then a humanitarian smuggler convicted under section 117 would not be inadmissible by virtue of paragraph 37(1)(b); however, that individual would nonetheless be inadmissible for “serious criminality” through the straightforward application of subsection 36(1), and would be subjected to the attendant consequences of such a designation. In other words, notwithstanding paragraph 37(1)(b), the humanitarian people smuggler is already inadmissible in the same manner as others convicted of serious crimes.





[65] I therefore see no “contradiction” of the kind described in B010 if the Profit Element is a requirement of “people smuggling” even though it is not a requirement for the crime of Human Smuggling. The humanitarian smuggler remains inadmissible and is grouped, for the purposes of the Act, with murderers, rapists, and other serious criminals, which entails that if the Minister believes the smuggler is a danger to the public in Canada, he will not have the benefit of a refugee determination (paragraph 101(1)(f)), and he may be refouled to persecution (subparagraph 113(d)(i)). It is simply that certain additional and exceptional drawbacks caused by a finding of “organized criminality” would not apply to the humanitarian smuggler. But, as I have said, even on the narrow interpretation of “people smuggling" humanitarian smugglers are accorded the same inadmissibility status as murderers, rapists, and others convicted of serious offences. Thus, the scheme of the Act is in no way thrown into discord merely because of that interpretation.





[66] Moreover, in Sullivan’s words, I find there is a “plausible reason for distinguishing between the two groups.” Individuals who smuggle people for profit arguably should be afforded fewer protections than those who do not. Indeed, Parliament listed the profit motive as an aggravating factor to be considered at the sentencing stage for the offence of Human Smuggling in section 117: See paragraph 121(1)(c). Parliament therefore obviously intended that the smuggling of people for profit is to be met with harsher treatment than humanitarian smuggling. Including the Profit Element as a requirement of people smuggling in paragraph 37(1)(b) accords with that intention.





[67] My second reason for concluding that “people smuggling” in paragraph 37(1)(b) includes the Profit Element is that Parliament placed the phrase "people smuggling" in paragraph 37(1)(b) as a part of a longer phrase and these words and phrases must be interpreted in context. “This includes the immediate context, the Act as a whole and the statute book as a whole:” Sullivan on Construction at 354.





[68] In my view, the immediate context of the phrase “people smuggling” is very relevant to its proper interpretation. It is found within the following phrase “is inadmissible on grounds of organized criminality for engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering” [emphasis added].





[69] First, the paragraph renders one inadmissible not for the crimes of people smuggling, trafficking in persons or money laundering, but for engaging in those or similar activities “in the context of transnational crime.” If “people smuggling” and “Human Smuggling” both referred to crimes or both referred to activities, then it might be more natural to say that they both refer to the same thing. However, where they have different referents - one a crime and the other an activity - it is less obvious that one should import the meaning of one into the other, in the absence of a clearly stated intention that they share a common meaning.





[70] Second, the associated words rule (noscitur a sociis) should be used to interpret the operative phrase: “activities such as people smuggling, trafficking in persons or money laundering.” Under the rule “the interpreter looks for a pattern or a common theme in the words or phrases, which may be relied on to resolve ambiguity or to fix the scope of the provision:” Sullivan on Interpretation 175. As Justice Martin said in R v Goulis (1981), 33 OR (2d) 55 at para 61 (CA), the words “take their colour from each other.”





[71] Trafficking in persons and money laundering are done for profit. They are not activities done with no expectation of profit or for humanitarian reasons. This suggests that people smuggling, as found within that phrase, has similar colour or meaning. Alone, the phrase is ambiguous as it may refer to either a profit-motivated smuggling activity (as in the Protocol) or the smuggling activity regardless of the gain the smuggler expects to realize. However, when one examines the phrase in the context of the others, and taking colour from them, their common feature must be that they are engaged in as for-profit activities. Indeed, I am otherwise hard-pressed to see any other truly common feature among these activities, other than that they occur in the context of transnational crime. On the contrary, in Singh Dhillon it made sense that the offence of drug trafficking was held to be included in paragraph 37(1)(b), because “money laundering overlaps substantially with drug trafficking:” See para 64. Humanitarian people smuggling has no such overlap with trafficking in persons and money laundering or drug trafficking.





[72] Third, paragraph 37(1)(b) speaks to the activity of people smuggling “in the context of transnational crime.” The ID, both here and in B010, looked to Article 3, paragraph 2 of the Convention, to interpret the word “transnational.” In such a circumstance, unless the domestic legislation provides a definition of an activity that it lists as falling within the scope of “transnational crime” and the Act does not, why would we not also look to the same Convention and its protocols for guidance as to the meanings of these activities? Admittedly, the Convention does not use the phrase “people smuggling;” it uses the phrase “smuggling of migrants.” However, the Convention does specifically use the two other phrases that are also said to be activities that fall within the concept of a transnational crime; namely, “money laundering” (Articles 6 and 7 of the Convention) and “trafficking in persons” (in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime). In my view, the clear coincidence between the three activities listed in paragraph 37(1)(b) and those in the Convention and its protocols provides yet another reason why the Profit Element is to be included in the definition of “people smuggling.”





Conclusion


[73] For the foregoing reasons, I conclude that “people smuggling” in paragraph 37(1)(b) includes the Profit Element, and the ID erred in its decision, which is set aside. A differently constituted panel of the ID is to re-determine, in accordance with these reasons, whether the applicant is inadmissible for engaging, in the context of transnational crime, in the activity of people smuggling.





[74] Both parties asked that the Court certify a question similar to that certified in B010 and B072. It is appropriate to do so. In light of these reasons, the question as framed in those decisions is amended; however, the issue remains the same.





[75] The applicant also asked that the Court certify a question relating to the appropriate standard of review. A similar request was refused in B010 because the judge said that he had relied “on clear jurisprudence from the Supreme Court of Canada to conclude that the issue called for reasonableness.” In this case, also relying on clear jurisprudence from the Supreme Court of Canada, an opposite result was reached. Accordingly, I find that the standard of review is an appropriate question for certification.





JUDGMENT


THIS COURT’S JUDGMENT is that the application is allowed, the decision is set aside, a differently constituted panel of the ID is to re-determine, in accordance with these reasons, whether the applicant is inadmissible for engaging, in the context of transnational crime, in the activity of people smuggling, and the following questions are certified:





a. Is the interpretation of paragraph 37(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27, and in particular of the phrase “people smuggling” therein, by the Immigration and Refugee Board, Immigration Division, reviewable on the standard of correctness or reasonableness?





b. Does the phrase “people smuggling” in paragraph 37(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27, require that it be done by the smuggler in order to obtain, “directly or indirectly, a financial or other material benefit” as is required in the Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime?





"Russel W. Zinn"


Judge











[1] After this application was heard, judgment issued in B306 v Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 1282 [B306], which also involved an applicant aboard the MV Sun Sea alleged to have been involved in people smuggling. However, that case turned on the interpretation of “aiding and abetting” in subsection 117(1) of the Act; it is not helpful on the issue before this Court.





FEDERAL COURT





SOLICITORS OF RECORD











DOCKET: IMM-2409-12





STYLE OF CAUSE: JESUS RODRIGUEZ HERNANDEZ v THE MINISTER


OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS








PLACE OF HEARING: Toronto, Ontario





DATE OF HEARING: November 8, 2012





REASONS FOR JUDGMENT


AND JUDGMENT: ZINN J.





DATED: December 4, 2012











APPEARANCES:







Ronald Poulton





FOR THE APPLICANT



Kareena Wilding





FOR THE RESPONDENT









SOLICITORS OF RECORD:







RONALD POULTON


Barrister and Solicitor


Toronto, Ontario





FOR THE APPLICANT



WILLIAM F. PENTNEY


Deputy Attorney General of Canada


Toronto, Ontario





FOR THE RESPONDENT

Entertainment executive and philanthropist David Geffen has established an unprecedented $100 million scholarship fund that will cover the entire cost of education for the very best medical students attending the David Geffen School of Medicine at UCLA (DGSOM).

New gift, along with previous philanthropic support to David Geffen School of Medicine, makes entertainment executive largest-ever donor to UCLA

 

 

Entertainment executive and philanthropist David Geffen has established an unprecedented $100 million scholarship fund that will cover the entire cost of education for the very best medical students attending the David Geffen School of Medicine at UCLA (DGSOM). The school was named in his honor after his $200 million unrestricted gift in 2002. With this recent gift, Geffen's total philanthropic support to UCLA exceeds $300 million, making him the largest individual donor to UCLA and to any single UC campus.

The David Geffen Medical Scholarship Fund, conceived by Geffen and announced Dec. 13 by Dr. A. Eugene Washington, vice chancellor for health sciences and dean of the medical school, ensures that DGSOM will have students who graduate from medical school debt-free, allowing them to pursue lifesaving research and patient care without the economic burdens that restrict the choices of many young physicians and scientists.

"The cost of a world-class medical education should not deter our future innovators, doctors and scientists from the path they hope to pursue," Geffen said. "We need the students at this world-class institution to be driven by determination and the desire to do their best work and not by the fear of crushing debt. I hope in doing this that others will be inspired to do the same."

"With this game-changing gift, Mr. Geffen has invested in the medical education and training of some of the world's brightest and most talented young people, influencing medical research and patient care for generations to come," said UCLA Chancellor Gene Block. "We are inspired by his vision and grateful for his generosity, which places UCLA's David Geffen School of Medicine at the forefront in the competitive marketplace for top medical school applicants and enhances health care and biomedical research for generations."

"Once again, David Geffen has made a transformative gift — in this case, one that shifts how we think about support for our medical students," Washington said. "The David Geffen Medical Scholarship Fund is an extraordinary investment in a public institution that will enhance UCLA's ability to create world leaders in health and science. Recipients of this prestigious award will proudly carry the David Geffen Medical Scholar designation with them throughout their careers as they create an enduring legacy of excellence and impact in 21st-century patient care, medical education and research."

According to the Association of American Medical Colleges (AAMC), 86 percent of medical school graduates had educational debt in 2012 — with an average debt of $170,000. Studies have shown that debt has a significant impact on what field medical school graduates pursue and where they develop their professional careers. Reducing that debt burden promises to allow talented students to make career decisions based on where their passions lie.

The annual cost of tuition, fees and health insurance for a UCLA medical student in 2012–13 is approximately $38,000. When factoring in room and board, books and supplies, and other miscellaneous costs, the total tab is $67,000. With these costs continuing to rise, the projected four-year cost for students entering the school in 2013–14 is more than $300,000.

The $100 million David Geffen Medical Scholarship Fund will provide four-year financial support — covering 100 percent of tuition, room and board, books and supplies, and other expenses — for up to 33 M.D. students (representing 20 percent of the available spots), starting with the entering class of 2013–14. Included in this group will be those students pursuing an eight-year M.D.–Ph.D. educational track as part of UCLA's renowned Medical Scientist Training Program. All the David Geffen Medical Scholarships will be awarded based on merit.

[Editor’s note: Some media reports of the gift have lacked clarity on the scope of the scholarship support. The gift will fund the full cost of a four-year UCLA medical education for up to 33 medical students in the first class of the program, and over the next decade will cover all costs for more than 300 medical students.]

Assistance for such students is designed to draw more outstanding young people to the medical profession. The AAMC estimates that the nation will face a shortage of more than 90,000 physicians by 2020. Adding to the urgency is the aging U.S. population — approximately 10,000 people a day will turn 65 for the next two decades — and the estimated 32 million people who will be added to the ranks of the insured in 2014 as a result of the Patient Protection and Affordable Care Act, the federal health care law signed in 2010.

UCLA's medical school receives less than 10 percent of its funding from the state. The school relies on funding from research grants, patient care revenue and philanthropic donations to fulfill its four-part mission of research, education, community engagement and patient care.

Each year, more than 7,500 candidates apply for the school's 163 coveted first-year positions. The David Geffen Medical Scholarships will ensure significantly higher rates of acceptance and enrollment at UCLA among the nation's most competitively recruited medical school applicants.

Additionally, in the fall of 2016, the school will inaugurate its new medical education building, where students will benefit from learning in a state-of-the art, world-class facility.

Over the course of his remarkable career, David Geffen has made an indelible mark on the fields of film, theater and, most notably, music, where he was responsible for creating the enormously successful record companies Asylum and Geffen Records. He also served for more than a decade as a principal partner in DreamWorks SKG, the multifaceted entertainment company he co-founded with Steven Spielberg and Jeffrey Katzenberg in 1994.

Geffen was already a well-known philanthropist and patron of the arts and AIDS research when, in May 2002, he made a $200 million unrestricted donation to UCLA's medical school, the largest single donation to a U.S. medical school in history at the time. Most recently, Geffen joined with Spielberg and Katzenberg, his partners in DreamWorks Animation SKG Inc., to each donate $30 million to the Motion Picture and Television Fund, a Hollywood charity that offers support to seniors and health services for members of the entertainment industry.

(Note to editors: B-roll footage of UCLA medical students in classrooms, research labs and patient-care settings is available. To access the video package, as well as video and audio sound bites and photos, visit our multimedia site.)

For students interested in applying to the David Geffen School of Medicine, here are links to a fact sheet on the David Geffen Medical Scholarship Fund and information on admissions:

• Fact sheet

• Admissions

Follow the conversation on Facebook at www.facebook.com/DavidGeffenSchoolofMedicineUCLA.

For more news, visit the UCLA Newsroom and follow us on Twitter.

Vic Toews’ shows a ‘closed mind,’ judge says in ruling

The public safety’s minister staunch refusal to accept the transfer of a Canadian prisoner in the U.S. back to this country lacks reason, suggests a “closed mind,” and ignores “clear evidence” in support of such a move, a judge has ruled.
In a rare and harshly worded decision, Federal Court Judge Luc Martineau gave Vic Toews 45 days to accept the transfer request and ensure “all reasonable steps have been taken for (the inmate’s) prompt transfer” back to Canada.
Julie Carmichael, a spokeswoman for Toews, said in an email Friday that the decision is being reviewed and that it would be “inappropriate to comment further.”
Yves LeBon has been serving time in a low-security institution in Pennsylvania. In August 2007 he was stopped by an Illinois state trooper for a traffic violation and found to have 119 kilograms of cocaine in his vehicle. He pleaded guilty to possession with intent to distribute and sentenced in July 2008 to 10 years in prison.
Later that same year, he applied for a transfer back to Canada under the International Transfer of Offenders Act, which was created to help with the rehabilitation of offenders and their reintegration into society.
But in August 2010, contrary to a recommendation by the Correctional Service of Canada and despite the prisoner’s strong family ties in Canada, the minister declined the transfer request.
The minister said it was likely that LeBon was involved in “serious criminal organization activity.” He cited the large quantity of cocaine seized as being “destructive to society.”
LeBon also did not cooperate with police in identifying his accomplices, Toews said.
The matter went to the Federal Court of Canada and then to the Federal Court of Appeal. While the appeal court acknowledged that the minister was not required to follow the advice of corrections officials, it found that the minister’s reasoning was not “justified, transparent and intelligible.”
It sent the matter back to the minister for re-consideration.
The minister refused to budge, resulting in the matter being brought before the Federal Court a second time.
In his ruling this week, Martineau, the federal judge, said the minister only “paid lip service” to the reasons and directions given by the federal appeal court.
“I have examined the Minister’s first and second decisions in this file very closely. I agree with the applicant that although the second decision is longer, it is essentially a rewording of the Minister’s first decision.”
The judge noted that the minister was provided with updated assessments from the correctional service, RCMP and Canadian Security Intelligence Service favouring LeBon’s transfer, yet he still refused to follow their advice.
“It is not possible to understand on what rational basis the Minister disagreed with the expert opinions,” the judge said.
“A reasonably informed person would have the clear impression that the Minister, in denying the applicant’s transfer request, simply wanted to punish him because he was caught transporting a large quantity of drugs and did not provide the names of his accomplices.
“This illustrates an intransigency which is symptomatic of a closed mind and leads to the conclusion that a reasonable apprehension of bias existed on the part of the Minister.”
The judge noted that this was LeBon’s first offence and that he has demonstrated good behaviour in prison.
He added that the minister has previously agreed to the transfer of other convicted drug offenders.



Read more: http://www.canada.com/Toews+refusal+transfer+prisoner+from+shows+closed+mind+judge+says+ruling/7734852/story.html#ixzz2FnxMvD8v

Piers Morgan Slams Pro-Gun Americans

Philip Van Cleave on gun contol V “Piers Morgan

Check against delivery RULING ON THE POINT OF ORDERRAISED ON NOVEMBER 29, 2012 BYTHE HON. HOUSE LEADER FOR THE OFFICIAL OPPOSITION(MR. CULLEN)REGARDING THE REPORT STAGE PROCEEDINGS ON BILL C-45, A SECOND ACT TO IMPLEMENT CERTAIN PROVISIONS OF THE BUDGET TABLED IN PARLIAMENT ON MARCH 29, 2012 AND OTHER MEASURES December 12, 2012

Check against delivery RULING ON THE POINT OF ORDERRAISED ON NOVEMBER 29, 2012 BYTHE HON. HOUSE LEADER FOR THE OFFICIAL OPPOSITION(MR. CULLEN)REGARDING THE REPORT STAGE PROCEEDINGS ON BILL C-45, A SECOND ACT TO IMPLEMENT CERTAIN PROVISIONS OF THE BUDGET TABLED IN PARLIAMENT ON MARCH 29, 2012 AND OTHER MEASURES December 12, 2012 2 As I committed to do on November 29, 2012, I am now prepared toprovide the House with a more comprehensive ruling on the points of order raised on November 28, 2012, by the hon. House Leaders for the OfficialOpposition (Mr. Cullen) and the Government (Mr. Van Loan) regarding thereport stage proceedings on Bill C-45, A second Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures. In making their interventions, both House Leaders made two kinds of arguments. First, they made what the Chair would characterize as strictlytechnical procedural points related to the mechanics of report stage for Bill C-45. At the same time, they shared other views with the House onbroader issues, such as the role of the Speaker in general and in relation toreport stage, the role of the House and of the Speaker in a majority setting,and the role and rights of independent Members in relation to report stage.In its earlier ruling on some of the purely procedural matters raisedin these points of order, the Chair outlined the rationale for its selection for debate and grouping for voting purposes of motions at report stage of Bill C-45, in particular motions to delete. Motions to delete were apreoccupation for both House Leaders: the Opposition House Leader wanted the Speaker to select them all and allow separate votes on all of them, while the Government House Leader did not want me to select any of them, to avoid votes altogether. As I explained to the House on November 29, 2012, there are severalprecedents to justify not only the selection of motions to delete for debateat report stage, but also to justify their grouping for voting purposes.These are long-standing practices of the House. References made bythe Opposition House Leader to rulings by Speakers Jerome and Fraser,while of interest, fail to take into account the evolution of our procedures asthey relate to report stage, particularly the very clear direction included inthe notes to Standing Orders 76(5) and 76.1(5) since 2001. These notesoutline the desire of the House to circumscribe report stage, and instructthe Speaker to select motions for debate in accordance with certain criteria,to ensure that report stage is not a mere repetition of the committee stage. 3 As I stated in my ruling on November 29 (Debates, p. 12611): “ in theabsence of specific guidance from the House with regard to motions todelete and other matters raised in the points of order, the Speaker cannot unilaterally modify the well-established current practice. ” Despite the brevityof the ruling, the Chair believes it puts to rest any ambiguity they mayhave perceived with regard to the Chair’s approach to the fundamentalprocedural aspects of selection and voting processes as they relate tomotions at report stage.With regard to the broader issues raised by the two House Leaders,the Chair intends to address them thematically, beginning with a discussionon the role of the Speaker. House of Commons Procedure and Practice , Second Edition, at page307, states that it is the duty of the Speaker:(quote) “…to ensure that public business is transacted efficiently and that the interests of all parts of the House are advocated and protected against the use of arbitrary authority. It is in this spirit that the Speaker, as the chief servant of the House, applies the rules.The Speaker is the servant, neither of any part of the House nor of any majority in the House, but of the entire institution and serves thebest interests of the House...” (unquote) O’Brien and Bosc further states that:(quote) “Despite the considerable authority of the office, the Speaker may exercise only those powers conferred upon him or her by theHouse, within the limits established by the House itself.” (unquote)Speaker Milliken provided useful insight into this role when on April 27, 2010, on page 2039 of Debates , he stated that:(quote) “… the Chair is always mindful of the established precedents,usages, traditions and practices of the House and of the role of theChair in their ongoing evolution. ” (unquote) This not only confirms that it is not just written rules from which theSpeaker’s authority is legitimately derived, as suggested by the OppositionHouse Leader, but that the evolutionary nature of procedure must be takeninto account. It was on this basis of the House’s longstanding acceptance,and in fact expectations, of the practices at report stage, in conjunction withthe need for adaptation to the current context, that the amendments for 4 Bill C-45 were grouped for debate and voting purposes in the manner thatthey were. Nor does the role of the Speaker in this regard vary from Parliamentto Parliament, as has been suggested by the Government House Leader,who said:(quote) “ It may be justifiable in a minority Parliament for the Chair toaccept any questions for the House to decide, because it is difficult to predict the intentions of the majority of Members. This is not the casein a majority Parliament in general. ” (unquote) Let me be clear: the Speaker does not make decisions based on whois in control of the House. Report stage motions are not, and never havebeen, selected for debate and grouped for voting on the basis of who theChair thinks might win the vote on them. This is why in the case of C-45the Chair rejected the proposal made by the Government House Leader that I ought to group certain motions, to use his words, (quote) “ in a manner that recognizes the anticipated will of the House ” (unquote). The Chair is and will continue to be guided by procedural imperativesin all of its decisions, not by somehow substituting the Speaker’s predictionof the likely outcome of a vote for the expressed will of the House itself. This brings me to a discussion of the role of the House as a whole.The role of the House in the legislative process must be seen in thelarger context of the accountability of the executive branch to the electedMembers of the legislative branch. Speaker Milliken, in a ruling given on April 27, 2010, which can be found at page 2039 of Debates , stated:(quote) “In a system of responsible government, the fundamental right of the House of Commons to hold the government to account for its actions is an indisputable privilege and in fact an obligation.” (unquote)He continued:(quote) “…it is why that right is manifested in numerous procedures of the House, from the daily question period to the detailed examinationby committees of estimates, to reviews of the accounts of Canada, todebate, amendments, and votes on legislation.” (unquote) 5 House of Commons Procedure and Practice , Second Edition, atpage 250, puts into context how our practices have attempted to strike anappropriate balance between government and opposition. It states that:(quote) “…it remains true that parliamentary procedure is intended to ensure that there is a balance between the government’sneed to get its business through the House, and the opposition’sresponsibility to debate that business without completely immobilizing the proceedings of the House. In short, debate in the House isnecessary, but it should lead to a decision in a reasonable time.” (unquote) The underlying principles these citations express are thecornerstones of our parliamentary system. They enshrine the ancientdemocratic tradition of allowing the minority to voice its views and opinionsin the public square and, in counterpoint, of allowing the majority to put itslegislative program before Parliament and have it voted upon. In advocating a much stricter approach to the report stage onBill C-45, the Government House Leader seemed to argue that theexistence of a Government majority meant that the outcome of proceedingson the Bill was known in advance, that somehow this justified taking a newapproach to decision-making by the House and that anything short of thatwould constitute a waste of the House’s time. This line of reasoning, takento its logical end, might lead to conclusions that trespass on importantfoundational principles of our institution, regardless of its composition.Speaker Milliken recognized this when, on March 29, 2007, at page 8136 of Debates , he stated,(quote) “… neither the political realities of the moment nor the sheer force of the numbers should force us to set aside the values inherent in the parliamentary conventions and procedures by which wegovern our deliberations. ” (unquote) Speaker Fraser on October 10, 1989 ( Debates, p. 4461), alsoreminded the House that decisions on legislation are for the House aloneto make, stating that (quote) “…we are a parliamentary democracy,not a so-called executive democracy, nor a so-called administrativedemocracy.” (unquote) 6 I would now like to turn my attention to the issue of the role andrights of independent Members in the context of report stage. Whileacknowledging that some accommodation for the participation of independent Members was necessary, the Government House Leader was critical of the current state of affairs which he claims can allow a singleindependent Member, as the Government House Leader put it, (quote) “tohold the House hostage in a voting marathon” (unquote) As all Members know, this year, the House has had to deal withthousands of report stage motions when considering the two budgetimplementation bills, resulting, in the case of Bill C-38, in around-the-clock voting. While this is not unprecedented, it is the first time it hashappened since the rules governing report stage were changed in 2001. As is often the case, in the midst of such consuming procedural challenges,frustrations surface, our practices are examined and remedies areproposed. As I have indicated, the note to Standing Orders 76(5) and 76.1(5)already provides guidance to the Chair with regard to the selection of amendments at report, and in particular, states the following:(quote) “ For greater certainty, the purpose of this Standing Order is, primarily, to provide Members who were not members of thecommittee, with an opportunity to have the House consider specific amendments they wish to propose. ” (unquote) It is no secret that independent Members do not sit oncommittees in the current Parliament. In light of recent report stagechallenges and the frustrations that have resurfaced, the Chair would liketo point out the opportunities and mechanisms which are at the House’sdisposal to resolve these issues to the satisfaction of all Members. TheStanding Orders currently in place offer committees wide latitude to dealwith bills in an inclusive and thorough manner that would balance the rightsof all Members. In fact, it is neither inconceivable nor unprecedented for committees to allow Members, regardless of party status, permanently or temporarily, to be a part of their proceedings, thereby opening thepossibility for the restoration of report stage to its original purpose. For inspiration on the possibilities, Members need only to remember that thereare several precedents where independent Members were made membersof standing committees. Short of that, there is no doubt that any number of procedural arrangements could be developed that would ensure that theamendments that independent Members wish to propose to legislation 7 could be put in committee. Thus, it is difficult for the Chair to accept theargument that current report stage practices and rules are somehow beingused in an untoward manner by independent Members when simple andstraightforward solutions are not being explored. Were a satisfactory mechanism found that would afford independentMembers an opportunity to move motions to amend bills in committee, theChair has no doubt that its report stage selection process would adapt tothe new reality. In the meantime, as all honourable Members know, and as is statedat page 307 of House of Commons Procedure and Practice, secondedition: (quote) “ It is the duty of the Speaker to act as the guardian of the rights and privileges of Members and of the House as an institution. ”(unquote) Accordingly, unless and until new, satisfactory ways of consideringthe motions of all Members to amend bills in committee are found, theChair intends to continue to protect the rights of independent Members topropose amendments at report stage.Finally, as we prepare to adjourn for the Christmas holidays, theChair invites all Members to reflect on how best to strengthen publicconfidence in this institution and on how best to balance the competinginterests with which we will always grapple. I thank all hon. Members for their attention. CullenC45ReportStage Final e

SUPREME COURT OF CANADA Date: 20121213 Docket: 34231 Citation: Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68

 

SUPREME COURT OF CANADA

Citation: Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68

Date: 20121213 Docket: 34231

IN THE MATTER OF the Broadcasting Act, S.C. 1991, c. 11;

AND IN THE MATTER OF the Canadian Radio-television and Telecommunications Commission’s Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168;

AND IN THE MATTER OF an application by way of a reference to the Federal Court of Appeal pursuant to ss. 18.3(1) and 28(2) of the Federal Courts Act, R.S.C. 1985, c. F-7.

Between:

Cogeco Cable Inc., Rogers Communications Inc.,

TELUS Communications Company and Shaw Communications Inc.

Appellants

and

Bell Media Inc. (formerly CTV Globemedia Inc.), V Interactions Inc., Newfoundland Broadcasting Co. Ltd. and Canwest Television Limited Partnership

Respondents

- and -

Canadian Radio-television and Telecommunications Commission

Intervener

Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.

Reasons for Judgment: (paras. 1 to 83) Joint Dissenting Reasons: (paras. 84 to 126)

Rothstein J. (McLachlin C.J. and LeBel, Fish and Moldaver JJ. concurring) Abella and Cromwell JJ. (Deschamps and Karakatsanis JJ. concurring)

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

 

Reference re Broadcasting Regulatory Policy CRTC 2010‑167 and Broadcasting Order CRTC 2010‑168,2012 SCC 68

IN THE MATTER OF the Broadcasting Act, S.C. 1991, c. 11;

AND IN THE MATTER OF the Canadian Radio‑television and Telecommunications Commission’s Broadcasting Regulatory Policy CRTC 2010‑167 and Broadcasting Order CRTC 2010‑168;

AND IN THE MATTER OF an application by way of a reference to the Federal Court of Appeal pursuant to ss. 18.3(1) and 28(2) of the Federal Courts Act, R.S.C. 1985, c. F‑7.

Cogeco Cable Inc., Rogers Communications Inc., TELUS

Communications Company and Shaw Communications Inc.                   Appellants

v.

Bell Media Inc. (formerly CTV Globemedia Inc.),

V Interactions Inc., Newfoundland Broadcasting

Co. Ltd. and Canwest Television Limited Partnership                          Respondents

and

Canadian Radio‑television and Telecommunications Commission           Intervener

Indexed as:  Reference re Broadcasting Regulatory Policy CRTC 2010‑167 and Broadcasting Order CRTC 2010‑168

2012 SCC 68

File No.:  34231.

2012:  April 17; 2012:  December 13.

Present:  McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.

on appeal from the federal court of appeal

                    Communications law — Broadcasting — Canadian Radio‑television and Telecommunications Commission (“CRTC”) adopting policy establishing market‑based, value for signal regulatory regime — Policy empowering private local television stations (“broadcasters”) to negotiate direct compensation for retransmission of signals by cable and satellite companies (“broadcasting distribution undertakings” or “BDUs”), as well as right to prohibit BDUs from retransmitting those signals if negotiations unsuccessful — Whether CRTC having jurisdiction under Broadcasting Act, to implement proposed regime — Broadcasting Act, S.C. 1991, c. 11, ss. 2, 3, 5, 9, 10.

                    Legislation — Conflicting legislation — CRTC adopting policy establishing market‑based, value for signal regulatory regime — Policy empowering broadcasters to negotiate direct compensation for retransmission of signals by BDUs, as well as right to prohibit BDUs from retransmitting those signals if negotiations unsuccessful — Whether proposed regime conflicting with Copyright Act — Whether Copyright Act limiting discretion of CRTC in exercising regulatory and licensing powers under Broadcasting Act — Broadcasting Act, S.C. 1991, c. 11, ss. 2, 3, 5, 9, 10 — Copyright Act, R.S.C. 1985, c. C‑42, ss. 2, 21, 31, 89.

                    Responding to recent changes to the broadcasting business environment, in 2010 the CRTC sought to introduce a market‑based value for signal regulatory regime, whereby private local television stations could choose to negotiate direct compensation for the retransmission of their signals by BDUs, such as cable and satellite companies.  The new regime would empower broadcasters to authorize or prohibit BDUs from retransmitting their programming services.  The BDUs disputed the jurisdiction of the CRTC to implement such a regime on the basis that it conflicts with specific provisions in the Copyright Act.  As a result, the CRTC referred the question of its jurisdiction to the Federal Court of Appeal, which held the proposed regime was within the statutory authority of the CRTC pursuant to its broad mandate under the Broadcasting Act to regulate and supervise all aspects of the Canadian broadcasting system, and that no conflict existed between the regime and the Copyright Act.

                    Held (Abella, Deschamps, Cromwell and Karakatsanis JJ. dissenting):  The appeal should be allowed.  The proposed regulatory regime is ultra vires the CRTC.

                    Per McLachlin C.J. and LeBel, Fish, Rothstein and Moldaver JJ.:  The provisions of theBroadcasting Act, considered in their entire context, may not be interpreted as authorizing the CRTC to implement the proposed value for signal regime. 

                    No provision of the Broadcasting Act expressly grants jurisdiction to the CRTC to implement the proposed regime, and it was not sufficient for the CRTC to find jurisdiction by referring in isolation to policy objectives in s. 3 and deem that the proposed value for signal regime would be beneficial for the achievement of those objectives.  Establishing any link, however tenuous, between a proposed regulation and a policy objective in s. 3 of the Act cannot be a sufficient test for conferring jurisdiction on the CRTC.  Policy statements are not jurisdiction‑conferring provisions and cannot serve to extend the powers of the subordinate body to spheres not granted by Parliament.  Similarly, a broadly drafted basket clause in respect of regulation making authority (s. 10(1)(k)), or an open‑ended power to insert “such terms and conditions as the regulatory body deems appropriate” when issuing licences (s. 9(1)(h)) cannot be read in isolation, but rather must be taken in context with the rest of the section in which it is found.  Here, none of the specific fields for regulation set out in s. 10(1) pertain to the creation of exclusive rights for broadcasters to authorize or prohibit the distribution of signals or programs or the direct economic relationship between BDUs and broadcasters.  Reading the Broadcasting Act in its entire context reveals that the creation of such rights is too far removed from the core purposes intended by Parliament and from the powers granted to the CRTC under that Act.

                    Even if jurisdiction for the proposed value for signal regime could be found within the text of theBroadcasting Act, the proposed regime would conflict with specific provisions enacted by Parliament in theCopyright Act.  First, the value for signal regime conflicts with s. 21(1) because it would grant broadcasters a retransmission authorization right against BDUs that was withheld by the scheme of the Copyright Act.  A broadcaster’s s. 21(1)(c) exclusive right to authorize, or not authorize, another broadcaster to simultaneously retransmit its signals does not include a right to authorize or prohibit a BDU from retransmitting those communication signals.  It would be incoherent for Parliament to set up a carefully tailored signals retransmission right in s. 21(1), specifically excluding BDUs from the scope of the broadcasters’ exclusive rights over the simultaneous retransmission of their signals, only to enable a subordinate legislative body to enact a functionally equivalent right through a related regime.  The value for signal regime would upset the aim of the Copyright Act to effect an appropriate balance between authors’ and users’ rights as expressed by Parliament in s. 21(1).

                    Second, further conflict arises between the value for signal regime and the retransmission rights in s. 31, which creates an exception to copyright infringement for the simultaneous retransmission by a BDU of a “work” carried in local signals.  The value for signal regime envisions giving broadcasters deletion rights, whereby the broadcaster unable to agree with a BDU about the compensation for the distribution of its programming services would be entitled to require any program to which it has exclusive exhibition rights to be deleted from the signals of any broadcaster distributed by the BDU.  The value for signal regime would effectively overturn the s. 31 exception,entitling broadcasters to control the simultaneous retransmission of works while the Copyright Act specifically excludes retransmission from the control of copyright owners, including broadcasters.  In doing so, it would rewrite the balance between the owners’ and users’ interests as set out by Parliament in the Copyright Act.  Because the CRTC’s value for signal regime is inconsistent with the purpose of the Copyright Act, it falls outside of the scope of the CRTC’s licensing and regulatory jurisdiction under the Broadcasting Act.

                    Section 31(2)(b), which provides that in order for the exception to copyright to apply the retransmission must be “lawful under the Broadcasting Act”, is also not sufficient to ground the CRTC’s jurisdiction to implement the value for signal regulatory regime.  A general reference to “lawful under the Broadcasting Act” cannot authorize the CRTC, acting under open‑ended jurisdiction‑conferring provisions, to displace the specific direction of Parliament in the Copyright Act.  Finally, the value for signal regime would create a new right to authorize and prevent retransmission, in effect, amending the copyright conferred by s. 21.  Thus the value for signal regime would create a new type of copyright and would do so without the required Act of Parliament, contrary to s. 89.

                    Per Abella, Deschamps, Cromwell and Karakatsanis JJ. (dissenting):  The CRTC determined that the proposed regime was necessary to preserve the viability of local television stations and ensure the fulfillment of the broadcasting policy objectives set out in s. 3(1) of the Broadcasting Act.  Courts have consistently determined the validity of the CRTC’s exercises of power under the Broadcasting Act by asking whether the power was exercised in connection with a policy objective in s. 3(1).  This broad jurisdiction flows from the fact that the Actcontains generally‑worded powers for the CRTC to regulate and supervise all aspects of the Canadian broadcasting system, to impose licensing conditions, and to make regulations as the CRTC deems appropriate to implement the objects set out in s. 3(1).

                    The proposed regime is within the CRTC’s regulatory jurisdiction since it is demonstrably linked to several of the basic operative broadcasting policies in s. 3.  The regime is merely an extension of the current regime, which places conditions, including financial ones, on BDUs for the licence to retransmit local stations’ signals.  This broad mandate to set licensing conditions in furtherance of Canada’s broadcasting policy is analogous to the CRTC’s broad mandate to set rates, recently upheld by this Court in Bell Canada v. Bell Aliant Regional Communications, 2009 SCC 40, [2009] 2 S.C.R. 764.

                    The proposed regime does not create a conflict with the Copyright Act. It does not give local stations a copyright in the retransmission of their television signals.  BDUs derive their right to retransmit signals only from licences granted pursuant to s. 9 of the Broadcasting Act, and must meet the conditions imposed by the CRTC on their retransmission licences, including those set out in the proposed regime.  Nothing in either the definition of “broadcaster” or in s. 21(1)(c) of the Copyright Act immunizes BDUs from licensing requirements put in place by the CRTC in accordance with its broadcasting mandate.

                    The BDUs’ argument that the proposed regime creates royalties for local signals contrary to s. 31(2)(d) of the Copyright Act, turns s. 31(2)(d) on its head.  Section 31(2)(d) simply requires that BDUs pay a royalty to copyright owners for retransmitting “distant signals”.  This provision has nothing to do with whether the BDUs can be required to compensate local stations for a different purpose, namely, to fulfill the conditions of their retransmission license under the Broadcasting Act.

Cases Cited

By Rothstein J.

                    Referred to:  Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559;Reference re Broadcasting Act, 2012 SCC 4, [2012] 1 S.C.R. 142; Barrie Public Utilities v. Canadian Cable Television Assn., 2003 SCC 28, [2003] 1 S.C.R. 476; CKOY Ltd. v. The Queen, [1979] 1 S.C.R. 2; Bell Canada v. Bell Aliant Regional Communications, 2009 SCC 40, [2009] 2 S.C.R. 764; ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; Théberge v. Galérie d’Art du Petit Champlain inc., 2002 SCC 34, [2002] 2 S.C.R. 336; Mattel, Inc. v. 3894207 Canada Inc., 2006 SCC 22, [2006] 1 S.C.R. 772; R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867; Pointe‑Claire (City) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; Toronto Railway Co. v. Paget(1909), 42 S.C.R. 488; Lévis (City) v. Fraternité des policiers de Lévis Inc., 2007 SCC 14, [2007] 1 S.C.R. 591; British Columbia (Attorney General) v. Lafarge Canada Inc., 2007 SCC 23, [2007] 2 S.C.R. 86; CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, [2004] 1 S.C.R. 339; Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427; Tele‑Mobile Co. v. Ontario, 2008 SCC 12, [2008] 1 S.C.R. 305; Canadian Admiral Corp. v. Rediffusion, Inc., [1954] Ex. C.R. 382; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35.

By Abella and Cromwell JJ. (dissenting)

                    Lévis (City) v. Fraternité des policiers de Lévis Inc., 2007 SCC 14, [2007] 1 S.C.R. 591; R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867; CKOY Ltd. v. The Queen, [1979] 1 S.C.R. 2, aff’g (1976), 13 O.R. (2d) 156; Canadian Radio‑Television Telecommunications Commission v. CTV Television Network Ltd., [1982] 1 S.C.R. 530; Capital Cities Communications Inc. v. Canadian Radio‑Television Commission, [1978] 2 S.C.R. 141; Telecommunications Workers Union v. Canadian Radio‑Television and Telecommunications Commission, 2003 FCA 381, [2004] 2 F.C.R. 3; Assn. for Public Broadcasting in British Columbia v. Canadian Radio‑television and Telecommunications Commission, [1981] 1 F.C. 524, leave to appeal refused, [1981] 1 S.C.R. v; Société Radio‑Canada v. Métromédia CMR Montréal Inc. (1999), 254 N.R. 266; Canadian Broadcasting League v. Canadian Radio‑television and Telecommunications Commission, [1983] 1 F.C. 182, aff’d [1985] 1 S.C.R. 174; Canadian Motion Picture Distributors Assn. v. Partners of Viewer’s Choice Canada (1996), 137 D.L.R. (4th) 561; Bell Canada v. Bell Aliant Regional Communications, 2009 SCC 40, [2009] 2 S.C.R. 764; Barrie Public Utilities v. Canadian Cable Television Assn., 2003 SCC 28, [2003] 1 S.C.R. 476; ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140; CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, [2004] 1 S.C.R. 339; Théberge v. Galérie d’Art du Petit Champlain inc., 2002 SCC 34, [2002] 2 S.C.R. 336.

Statutes and Regulations Cited

Broadcasting Act, S.C. 1991, c. 11, ss. 2 “broadcasting”, “broadcasting undertaking”, “distribution undertaking”, “program”, “programming undertaking”, 3, 5, 9(1), 10(1).

Canada‑United States Free Trade Agreement Implementation Act, S.C. 1988, c. 65, ss. 61, 62.

Copyright Act, R.S.C. 1985, c. C‑42, ss. 2 “broadcaster”, “communication signal”, “compilation”, “copyright”, “dramatic work”, “telecommunication”, 2.4(1)(b), 3(1), (1.1.), 21(1), 23(1)(c), 31, 71 to 74, 76(1), (3), 89.

Federal Courts Act, R.S.C. 1985, c. F‑7, ss. 18.3, 28(2).

Interpretation Act, R.S.C. 1985, c. I‑21, s. 2 “Act”, “enactment”.

Local Signal and Distant Signal Regulations, SOR/89‑254, ss. 1, 2.

Radiocommunication Act, R.S.C. 1985, c. R‑2.

Telecommunications Act, S.C. 1993, c. 38, s. 27.

Treaties and Other International Instruments

Free Trade Agreement between the Goverment of Canada and the Government of the United States of America, Can. T.S. 1989 No. 3.

Authors Cited

Canada.  Canadian Radio‑television and Telecommunications Commission.  Broadcasting Regulatory Policy CRTC 2010‑167.  Ottawa:  The Commission, 2010.

Canada.  House of Commons.  Sub‑Committee on the Revision of Copyright of the Standing Committee on Communications and Culture.  A Charter of Rights for Creators:  Report of the Sub‑Committee on the Revision of Copyright.  Ottawa:  House of Commons, 1985.

Driedger, Elmer A.  Construction of Statutes, 2nd ed.  Toronto:  Butterworths, 1983.

Handa, Sunny, et al., Communications Law in Canada (loose‑leaf ed.).  Markham:  LexisNexis, 2000 (Including Service Issues 2012).

McKeown, John S.  Fox on Canadian Law of Copyright and Industrial Designs, 4th ed.  Toronto:  Thomson/Carswell, 2009 (loose‑leaf updated 2012, release 3).

Sullivan, Ruth.  Sullivan on the Construction of Statutes, 5th ed.  Markham, Ont.:  LexisNexis, 2008.

Vaver, David.  Intellectual Property Law:  Copyright, Patents, Trade‑marks, 2nd ed.  Toronto, Ont.:  Irwin Law, 2011.

                    APPEAL from a judgment of the Federal Court of Appeal (Nadon, Sharlow and Layden‑Stevenson JJ.A.), 2011 FCA 64, 413 N.R. 312, 91 C.P.R. (4th) 389, [2011] F.C.J. No. 197 (QL), 2011 CarswellNat 398.  Appeal allowed, Deschamps, Abella, Cromwell and Karakatsanis dissenting.

                    Neil Finkelstein, Steven G. Mason and Daniel G. C. Glover, for the appellant Cogeco Cable Inc.

                    Gerald L. Kerr‑Wilson and Ariel Thomas, for the appellants Rogers Communications Inc. and TELUS Communications Company.

                    Kent E. Thomson, James Doris and Sarah Weingarten, for the appellant Shaw Communications Inc.

                    Benjamin Zarnett, Robert Malcomson, Peter Ruby and Julie Rosenthal, for the respondents Bell Media Inc. (formerly CTV Globemedia Inc.), Newfoundland Broadcasting Co. Ltd. and V Interactions Inc.

                    No one appeared for the respondent Canwest Television Limited Partnership.

                    No one appeared for the intervener.

            The judgment of McLachlin C.J. and LeBel, Fish, Rothstein and Moldaver JJ. was delivered by

                    Rothstein J. —

I.    Introduction

[1]                              The Canadian Radio-television and Telecommunications Commission (“CRTC”) has authority under the Broadcasting Act, S.C. 1991, c. 11, to regulate and supervise the Canadian broadcasting system.  In 2010, the CRTC sought to introduce a market-based value for signal regulatory regime, whereby private local television stations (referred to as such or as “broadcasters”) could choose to negotiate direct compensation for the retransmission of their signals by broadcasting distribution undertakings (“BDUs”), such as cable and satellite companies.  The new regime would empower broadcasters to authorize or prohibit BDUs from retransmitting their programming services.  The reference question in this appeal is whether the CRTC has jurisdiction to implement the proposed regime.

[2]                              The Broadcasting Act grants the CRTC wide discretion to implement regulations and issue licences with a view to furthering Canadian broadcasting policy as set out in the Broadcasting Act.  However, these powers must be exercised within the statutory framework of the Broadcasting Act, and also the larger framework including interrelated statutes.  This scheme includes the Copyright Act, R.S.C. 1985, c. C-42: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at paras. 44-52. As such, the CRTC, as a subordinate legislative body, cannot enact a regulation or attach conditions to licences under the Broadcasting Act that conflict with provisions of another related statute.

[3]                              In my opinion, the value for signal regime does just that and is therefore ultra vires.

II.  Facts and Procedural History

[4]                              Broadcasters acquire, create and produce television programming, and are licensed by the CRTC to serve a certain geographic area within the reach of their respective signal transmitters.  BDUs, such as cable or satellite television service providers, pick up the over-the-air signals of broadcasters and distribute them to the BDUs’ subscribers for a fee.  Even though broadcasters’ signals are free to anyone equipped with a television and an antenna, more than 90 percent of Canadians receive these signals as part of their cable service (transcript, at p. 2).

[5]                              BDUs must be licensed by the CRTC pursuant to s. 9 of the Broadcasting Act.  Under the current regulatory model, the CRTC requires BDUs to provide certain benefits to broadcasters, in the nature of mandatory carriage and contributions to a local programming improvement fund accessible by certain local television stations.  However, the broadcasters do not receive fees directly from the BDUs for the carriage of their signals.

[6]                              As noted by the Federal Court of Appeal (“FCA”), 2011 FCA 64, 413 N.R. 312, at para. 6, the CRTC has concluded that the existing model does not adequately deal with recent changes to the broadcasting business environment, which have caused advertising revenues for broadcasters to fall, while the revenues of BDUs have increased.  As the FCA observed, the CRTC has concluded that this has resulted in a significant shift in their relative market positions and a financial crisis for broadcasters.

[7]                              As a solution, the CRTC seeks to implement what it terms a “value for signal regime”.  This regime would permit broadcasters to negotiate with BDUs the terms upon which the BDUs may redistribute their signals.  These are its main features:

-          Broadcasters would have the right, every three years, to choose either to negotiate with BDUs for compensation for the right to retransmit the broadcaster’s programming services, or to continue to operate under the existing regulatory regime;

-          A broadcaster who participates in the value for signal regime would forego all existing regulatory protections, including, for example, mandatory distribution of its signals as part of the basic package of BDU television services, and the right to require a BDU to delete a non-Canadian program and substitute it with the comparable program of the broadcaster, where the two programs are simultaneously broadcast and retransmitted by the BDU;

-          The CRTC would only involve itself in the negotiations for the value for signal regime if the parties do not negotiate in good faith or if they request the CRTC to arbitrate;

-          If no agreement is reached between the broadcaster and the BDU on the value of the distribution of the local television’s programming services, the broadcaster could require the BDU to delete any program owned by the broadcaster or for which it has acquired exclusive contractual exhibition rights from all signals distributed by the BDU in the broadcaster’s market.

The proposed regime is fully described in Broadcasting Regulatory Policy CRTC 2010-167 (2010) (“2010 Policy”) (A.R., vol. II, at p. 1). 

[8]                              The BDUs disputed the jurisdiction of the CRTC to implement such a regime on the basis that it conflicts with specific provisions in the Copyright Act.  As a result, the CRTC referred the following question to the FCA:

Is the Commission empowered, pursuant to its mandate under the Broadcasting Act, to establish a regime to enable private local television stations to choose to negotiate with broadcasting distribution undertakings a fair value in exchange for the distribution of the programming services broadcast by those local television stations?

A.  Federal Court of Appeal — Sharlow J.A. (Layden-Stevenson J.A. Concurring)

[9]                              Sharlow J.A., writing for the majority, found the proposed regime to be within the statutory authority of the CRTC.  She found that the Broadcasting Act confers a broad mandate on the CRTC to regulate and supervise all aspects of the Canadian broadcasting system.  Sharlow J.A. rejected the BDUs’ argument that the proposed regime conflicts with the Copyright Act.  She found that s. 21(1) of the Copyright Act gives a broadcaster a copyright in the signals it broadcasts, including the sole right to authorize a BDU to retransmit those signals (para. 33).  In her opinion, while s. 31(2) provides that the s. 21 copyright is not infringed by a BDU when it retransmits a station’s local signal, s. 31(2)(b) provides that the retransmission must be “lawful under the Broadcasting Act” (para. 38).  She concluded that “the BDUs’ statutory retransmission rights in subsection 31(2) of the Copyright Act [are] subject to paragraph 31(2)(b), [and that] Parliament has ranked the objectives of Canada’s broadcasting policy ahead of those statutory retransmission rights” (para. 40).

B.  Federal Court of Appeal — Nadon J.A. (Dissenting):

[10]                          In Nadon J.A.’s view, the proposed value for signal regime is ultra vires the powers of the CRTC because it conflicts with Parliament’s “clear statement in paragraph 31(2)(d) of the Copyright Act that royalties must be paid only for the retransmission of distant signals and not for the retransmission of local signals” (para. 49).  In his view, Parliament's expressed intention to treat local and distant signals differently is a limit on the CRTC’s jurisdiction to impose conditions under the Broadcasting Act (para. 73).  Given the exhaustiveness of the statutory copyright law, in Nadon J.A.’s opinion, the CRTC’s regime must be ultra vires (para. 85). 

III. Analysis

[11]                          The scope of the CRTC’s jurisdiction under the Broadcasting Act must be interpreted according to the modern approach to statutory interpretation.  Per Elmer A. Driedger’s formulation, adopted multiple times by this Court,

. . . the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

(See, e.g., Bell ExpressVu, at para. 26 per Iacobucci J., citing E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87.) 

[12]                          In addition,

. . . where the provision under consideration is found in an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and the scheme of the Act are more expansive.

(Bell ExpressVu, at para. 27)

The entire context of the provision thus includes not only its immediate context but also other legislation that may inform its meaning (R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at p. 411).

[13]                          In my respectful opinion, for two reasons, the provisions of the Broadcasting Act, considered in their entire context, may not be interpreted as authorizing the CRTC to implement the proposed value for signal regime.  First, a contextual reading of the provisions of the Broadcasting Act themselves reveals that they were not meant to authorize the CRTC to create exclusive rights for broadcasters to control the exploitation of their signals or works by retransmission. Second, the proposed regime would conflict with specific provisions enacted by Parliament in theCopyright Act.

A.  The CRTC’s Jurisdiction Under the Broadcasting Act

[14]                          The reference question asks whether the CRTC has the jurisdiction to implement the proposed value for signal regime.  Answering the question requires interpreting the powers granted to the CRTC under theBroadcasting Act and establishing whether the Copyright Act limits the discretion of the CRTC in the exercise of its regulatory and licensing powers.  The relevant sections of the Broadcasting Act and of the Copyright Act are annexed to these reasons (see Appendix).

[15]                          There is no doubt that the licensing and the regulation-making powers granted to the CRTC are broad.  The Broadcasting Act describes the mission of the CRTC as regulating and supervising “all aspects of the Canadian broadcasting system with a view to implementing the broadcasting policy set out in subsection 3(1)” (s. 5(1)).

[16]                          The powers granted to the CRTC are found in ss. 9 and 10 of the Broadcasting Act.  Section 9 grounds the CRTC’s licensing power.  Among other things, it gives the CRTC the authority to establish classes of licences, issue licences and require licensees to perform certain acts “in furtherance of its objects”.  Under s. 9(1)(b)(i), the issuance of the licences may be subject to such terms and conditions “as the Commission deems appropriate for the implementation of the broadcasting policy set out in subsection 3(1)”.

[17]                          Section 10 confers on the CRTC the power to make regulations.  It allows the CRTC to make regulations “in furtherance of its objects” and enumerates 10 specific areas for regulations.  On their face, these pertain mainly to such matters as setting the standards for programs, the allocation of broadcasting time for different types of content and the carriage of certain programming services by distribution undertakings.  However, s. 10(1)(k) is a basket clause granting the CRTC the residual authority to make regulations “respecting such other matters as it deems necessary for the furtherance of its objects”.

[18]                          Section 3(1) of the Broadcasting Act declares at length the broadcasting policy for Canada, which this Court summarized in Reference re Broadcasting Act, 2012 SCC 4, [2012] 1 S.C.R. 142 (“ISP Reference”), at para. 4, as:

[T]he policy objectives listed under s. 3(1) of the Act focus on content, such as the cultural enrichment of Canada, the promotion of Canadian content, establishing a high standard for original programming, and ensuring that programming is diverse.

[19]                          In substance, the value for signal regime would regulate the economic relationships between BDUs and broadcasters.  The salient feature is that the CRTC would grant individual broadcasters an exclusive right to require deletion of the programming to which they hold exhibition rights from all signals transmitted by the BDU.  This program deletion right is intended to give the broadcasters the necessary leverage to require compensation from the BDUs.

[20]                          No provision of the Broadcasting Act expressly grants jurisdiction to the CRTC to implement the proposed regime.  However, the broadcasters submit that ss. 9(1)(b)(i) and 9(1)(h) empower the CRTC to dictate the terms of the carriage relationship between broadcasters and BDUs, in furtherance of Canadian broadcasting policy (R.F., at para. 65).  The broadcasters submit that the power to do this also exists under s. 10(1)(g), which empowers the CRTC to make regulations “respecting the carriage of any foreign or other programming services by distribution undertakings” and s. 10(1)(k) which allows regulations to be made “respecting such other matters as [the CRTC] deems necessary for the furtherance of its objects”. 

[21]                          In its 2010 Policy, the CRTC determined:

[I]n order to fulfill the policy objectives set out in section 3(1) of the Act, the system needs revision so as to permit privately-owned television broadcasters to negotiate with BDUs to establish the fair value of the product provided by those broadcasters to BDUs. [para. 163]

The CRTC referred specifically only to ss. 3(1)(e) and (f) of the Broadcasting Act (see para. 152 of the 2010 Policy).  In their factum, the broadcasters add ss. 3(1)(g), (s) and (t), 9 and 10 (R.F., at paras. 63-65, 69, 74-79 and 87).  The CRTC did not refer to the jurisdiction-conferring provisions in ss. 9 and 10. 

[22]                          Policy statements, such as the declaration of Canadian broadcasting policy found in s. 3(1) of theBroadcasting Act, are not jurisdiction-conferring provisions.  They describe the objectives of Parliament in enacting the legislation and, thus, they circumscribe the discretion granted to a subordinate legislative body (Sullivan, at pp. 387-88 and 390-91).  As such, declarations of policy cannot serve to extend the powers of the subordinate body to spheres not granted by Parliament in jurisdiction-conferring provisions. 

[23]                          In my opinion, to find jurisdiction, it was not sufficient for the CRTC to refer in isolation to policy objectives in s. 3 and deem that the proposed value for signal regime would be beneficial for the achievement of those objectives.  As stated by Gonthier J., writing for the majority of this Court in Barrie Public Utilities v. Canadian Cable Television Assn., 2003 SCC 28, [2003] 1 S.C.R. 476,

“. . . courts and tribunals must invoke statements of legislative purpose to elucidate, not to frustrate, legislative intent.  In my view, the CRTC relied on policy objectives to set aside Parliament’s discernable intent as revealed by the plain meaning of s. 43(5), s. 43 generally and the Act as a whole.  [para. 42]

It is therefore necessary to consider the jurisdiction granted to the CRTC under ss. 9 and 10 of the Act to attach conditions to licences and to make regulations. 

[24]                          The broadcasters argue that the test for the CRTC’s jurisdiction in enacting regulations under s. 10 of the Broadcasting Act is whether the regulation objectively refers to one of the objectives in s. 3.  They rely on this Court’s decision in CKOY Ltd. v. The Queen, [1979] 1 S.C.R. 2, where the majority of the Court, per Spence J., stated, at p. 11:

[T]he validity of any regulation enacted in reliance upon s. 16 [now s. 10] must be tested by determining whether the regulation deals with a class of subject referred to in s. 3 of the statute and that in doing so the Court looks at the regulation objectively.

[25]                          In my opinion, CKOY cannot stand for the proposition that establishing any link, however tenuous, between a proposed regulation and a policy objective in s. 3 of the Act is a sufficient test for conferring jurisdiction on the CRTC.  Such an approach would conflict with the principle that policy statements circumscribe the discretion granted to a subordinate legislative body.

[26]                          The difference between general regulation making or licensing provisions and true jurisdiction-conferring provisions is evident when this case is compared with Bell Canada v. Bell Aliant Regional Communications, 2009 SCC 40, [2009] 2 S.C.R. 764.  In Bell Aliant, this Court was asked to determine whether the creation and use of certain deferral accounts lay within the scope of the CRTC’s express power to determine whether rates set by telecommunication companies are just and reasonable.  The CRTC’s jurisdiction over the setting of rates under s. 27 of the Telecommunications Act, S.C. 1993, c. 38, provides that rates must be just and reasonable. Under that section, the CRTC is specifically empowered to determine compliance with that requirement and is conferred the express authority to “adopt any method or technique that it considers appropriate” for that purpose (s. 27(5)). 

[27]                          This broad, express grant of jurisdiction authorized the CRTC to create and use the deferral accounts at issue in that case.  This stands in marked contrast to the provisions on which the broadcasters seek to rely in this case, which consist of a general power to make regulations under s. 10(1)(k) and a broad licensing power under s. 9(1)(b)(i).  Jurisdiction-granting provisions are not analogous to general regulation making or licensing authority because the former are express grants of specific authority from Parliament while the latter must be interpreted so as not to confer unfettered discretion not contemplated by the jurisdiction-granting provisions of the legislation.

[28]                          That is the fundamental point.  Were the only constraint on the CRTC’s powers under s. 10(1) to be found in whether the enacted regulation goes towards a policy objective in s. 3(1), the only limit to the CRTC’s regulatory power would be its own discretionary determination of the wisdom of its proposed regulation in light of any policy objective in s. 3(1).  This would be akin to unfettered discretion.  Rather,

. . . discretion is to be exercised within the confines of the statutory regime and principles generally applicable to regulatory matters, for which the legislature is assumed to have had regard in passing that legislation.  (ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, at para. 50, per Bastarache J.)

[29]                          A broadly drafted basket clause, such as s. 10(1)(k), or an open-ended power to insert “such terms and conditions as the [regulatory body] deems appropriate” (s. 9(1)(h)) cannot be read in isolation: ATCO, at para. 46.  Rather, “[t]he content of a provision ‘is enriched by the rest of the section in which it is found . . .’” (Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, at para. 64, per Gonthier J., citing R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, at pp. 647-48; see also Sullivan, at pp. 228-29).  In my opinion, none of the specific fields for regulation set out in s. 10(1) pertain to the creation of exclusive rights for broadcasters to authorize or prohibit the distribution of signals or programs, or to control the direct economic relationship between the BDUs and the broadcasters.

[30]                          However, the broadcasters submit that s. 10(1)(g), which enables the CRTC to make regulations “respecting the carriage of any foreign or other programming services”, and s. 9(1)(h), which empowers the CRTC to require a licensed BDU “to carry . . . programming services specified by the Commission”, together with the broad wording of ss. 10(1)(k) and 9(1)(b)(i), empower the CRTC to “dictate the terms of the carriage relationship between broadcasters and BDUs” (R.F., at para. 65).  Thus, the CRTC would, in their opinion, have jurisdiction to implement the proposed regime. 

[31]                          I cannot agree.  On their face, ss. 9(1)(h) and 10(1)(g) could, for example, allow the CRTC to require the BDUs to distribute to Canadians certain types of programs, arguably, because they are deemed to be important for the country’s cultural fabric.  However, it is a far cry from concluding that, coupled with ss. 10(1)(k) and 9(1)(b)(i), they entitle the CRTC to create exclusive control rights for broadcasters.

[32]                          This interpretation is consistent with a reading of the Act in its entire context.  The Broadcasting Acthas a primarily cultural aim.  The other powers enumerated in s. 10(1) deal with such matters as the allocation of broadcasting time and the setting of standards for programs.  In addition, the objectives of the Broadcasting Act, declared in s. 3(1), when read together, target “the cultural enrichment of Canada, the promotion of Canadian content, establishing a high standard for original programming, and ensuring that programming is diverse” (ISP Reference, at para. 4).  While such declarations of policy may not be invoked as independent grants of power, they should be given due weight in interpreting specific provisions of an Act: Sullivan, at pp. 388 and 390-91.  Parliament must be presumed to have empowered the CRTC to work towards implementing these cultural objectives; however, the regulatory means granted to the CRTC to achieve these objectives fall short of creating exclusive control rights.

[33]                          In sum, nowhere in the Act is there a reference to the creation of exclusive control rights over signals or programs.  Reading the Broadcasting Act in its entire context reveals that the creation of such rights is too great a stretch from the core purposes intended by Parliament and from the powers granted to the CRTC under theBroadcasting Act.

B.  The Larger Statutory Scheme — Conflict with the Copyright Act

(1)      Connection Between the Broadcasting Act and the Copyright Act

[34]                          Even if jurisdiction for the proposed value for signal regime could be found within the text of theBroadcasting Act, that would not resolve the question in this reference as the Broadcasting Act is part of a larger statutory scheme that includes the Copyright Act and the Telecommunications Act.  As Sunny Handa et al. explain, the Telecommunications Act and the Radiocommunication Act, R.S.C. 1985, c. R-2, are the main statutes governing carriage, and the Broadcasting Act deals with content, which is “the object of ‘carriage’” (S. Handa et al., Communications Law in Canada (loose-leaf), at §3.21).  In Bell ExpressVu, at para. 52, Justice Iacobucci also considered the Copyright Act when interpreting a provision of the Radiocommunication Act, saying that “there is a connection between these two statutes”.  Considering that the Broadcasting Act and theRadiocommunication Act are clearly part of the same interconnected statutory scheme, it follows, in my view, that there is a connection between the Broadcasting Act and the Copyright Act as well.  The three Acts (plus theTelecommunications Act) are part of an interrelated scheme.

[35]                          Indeed, the Broadcasting Act regulates “program[s]” that are “broadcast” for reception by the Canadian public (see s. 2(1), definitions of “broadcasting” and of “program”), with a view to implementing the Canadian broadcasting policy described in s. 3(1) of the Act.  Generally speaking, “[t]he Broadcasting Act is primarily concerned with the programmed content delivered by means of radio waves or other means of telecommunication to the public” (Handa at al., at §5.5).

[36]                          The Copyright Act is concerned both with encouraging creativity and providing reasonable access to the fruits of creative endeavour.  These objectives are furthered by a carefully balanced scheme that creates exclusive economic rights for different categories of copyright owners in works or other protected subject matter, typically in the nature of a statutory monopoly to prevent anyone from exploiting the work in specified ways without the copyright owner’s consent. It also provides user rights such as fair dealing and specific exemptions that enable the general public or specific classes of users to access protected material under certain conditions. (See, e.g.,Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34, [2002] 2 S.C.R. 336, at paras. 11-12 and 30; Mattel, Inc. v. 3894207 Canada Inc., 2006 SCC 22, [2006] 1 S.C.R. 772, at para. 21; D. Vaver,Intellectual Property Law: Copyright, Patents, Trade-marks (2nd ed. 2011), at pp. 34 and 56.)  Among the categories of subject matter protected by copyright are the rights of broadcasters in communication signals (see ss. 2 “copyright” and 21 of the Copyright Act).  In addition, “program[s]” within the meaning of the Broadcasting Act, are often pre-recorded original content which may constitute protected works, namely “dramatic work[s]” or “compilation[s]” thereof, under the Copyright Act: see, e.g., discussion in J. S. McKeown, Fox on Canadian Law of Copyright and Industrial Designs (4th ed. loose-leaf), at para. 15:3(a).

[37]                          Although the Acts have different aims, their subject matters will clearly overlap in places.  As Parliament is presumed to intend “harmony, coherence, and consistency between statutes dealing with the same subject matter” (R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867, at para. 52; Sullivan, at pp. 325-26), two provisions applying to the same facts will be given effect in accordance with their terms so long as they do not conflict.

[38]                          Accordingly, where multiple interpretations of a provision are possible, the presumption of coherence requires that the two statutes be read together so as to avoid conflict.  Lamer C.J. wrote in Pointe-Claire (City) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015, at para. 61:

There is no doubt that the principle that statutes dealing with similar subjects must be presumed to be coherent means that interpretations favouring harmony among those statutes should prevail over discordant ones.

[39]                          In addition, “[o]rdinarily, . . . an Act of Parliament must prevail over inconsistent or conflicting subordinate legislation” (Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at p. 38).  Consequently, as it would be impermissible for the CRTC, a subordinate legislative body, to implement subordinate legislation in conflict with another Act of Parliament, the open-ended jurisdiction-conferring provisions of the Broadcasting Act cannot be interpreted as allowing the CRTC to create conflicts with theCopyright Act.

[40]                          It is therefore necessary to first determine if a conflict arises.

(2)      Types of Conflict

[41]                          For the purposes of statutory interpretation, conflict is defined narrowly.  It has been said that overlapping provisions will be given effect according to their terms, unless they “cannot stand together” (Toronto Railway Co. v. Paget (1909), 42 S.C.R. 488, at p. 499 per Anglin J.).

[42]                          In Lévis (City) v. Fraternité des policiers de Lévis Inc., 2007 SCC 14, [2007] 1 S.C.R. 591, the Court was concerned with incoherence between provisions of two statutes emanating from the same legislature.  Bastarache J., writing for the majority, defined conflict, at para. 47:

The test for determining whether an unavoidable conflict exists is well stated by Professor Côté in his treatise on statutory interpretation:

         According to case law, two statutes are not repugnant simply because they deal with the same subject: application of one must implicitly or explicitly preclude application of the other.

(P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at p. 350)

Thus, a law which provides for the expulsion of a train passenger who fails to pay the fare is not in conflict with another law that only provides for a fine because the application of one law did not exclude the application of the other (Toronto Railway Co. v. Paget (1909), 42 S.C.R. 488).Unavoidable conflicts, on the other hand, occur when two pieces of legislation are directly contradictory or where their concurrent application would lead to unreasonable or absurd results. A law, for example, which allows for the extension of a time limit for filing an appeal only before it expires is in direct conflict with another law which allows for an extension to be granted after the time limit has expired (Massicotte v. Boutin, [1969] S.C.R. 818).  [Emphasis added.]

[43]                          Absurdity also refers to situations where the practical effect of one piece of legislation would be to frustrate the purpose of the other (Lévis, at para. 54; Sullivan, at p. 330).

[44]                          This view is not inconsistent with the approach to conflict adopted in federalism jurisprudence.  For the purposes of the doctrine of paramountcy, this Court has recognized two types of conflict.  Operational conflict arises when there is an impossibility of compliance with both provisions. The other type of conflict is incompatibility of purpose.  In the latter type, there is no impossibility of dual compliance with the letter of both laws; rather, the conflict arises because applying one provision would frustrate the purpose intended by Parliament in another.  See, e.g., British Columbia (Attorney General) v. Lafarge Canada Inc., 2007 SCC 23, [2007] 2 S.C.R. 86, at paras. 77 and 84.

[45]                          Cases applying the doctrine of federal paramountcy present some similarities in defining conflict as either operational conflict or conflict of purpose (Friends of the Oldman River Society, at p. 38).  These definitions of legislative conflict are therefore helpful in interpreting two statutes emanating from the same legislature.  The CRTC’s powers to impose licensing conditions and make regulations should be understood as constrained by each type of conflict.  Namely, in seeking to achieve its objects, the CRTC may not choose means that either operationally conflict with specific provisions of the Broadcasting Act, the Radiocommunication Act, theTelecommunications Act, or the Copyright Act; or which would be incompatible with the purposes of those Acts.

(3)      The Allocation of Rights Under the Copyright Act

(a)      Section 21

[46]                          The BDUs contend that the CRTC’s proposed value for signal regime conflicts with the retransmission regimes specifically established in ss. 21(1)(c) and 31(2) of the Copyright Act.

[47]                          It is necessary to describe the Copyright Act’s regimes at some length.  It will become apparent from this description that, in my respectful view, the analysis of the Copyright Act conducted by the majority of the FCA is problematic.

[48]                          The BDUs first submit that s. 21(1) of the Copyright Act conflicts with the value for signal regime.  Section 21(1) grants broadcasters a limited copyright in the over-the-air signals they broadcast.  This copyright gives the broadcaster the sole right to authorize or to do four acts in relation to a communication signal or any substantial part of it:

(a) to fix it;

(b) to reproduce any fixation of it that was made without the broadcaster’s consent;

(c) to authorize another broadcaster to retransmit it to the public simultaneously with its broadcast; and

(d) in the case of a television communication signal, to perform it in a place open to the public on payment of an entrance fee,

and to authorize any act described in paragraph (a), (b) or (d).

[49]                          The aspect relevant for this appeal is in para. (c).  Under this paragraph, a broadcaster has the sole right to authorize another broadcaster to retransmit simultaneously a communication signal.  Section 2 of theCopyright Act defines “broadcaster” as

a body that, in the course of operating a broadcasting undertaking, broadcasts a communication signal in accordance with the law of the country in which the broadcasting undertaking is carried on, but excludes a body whose primary activity in relation to communication signals is their retransmission.

[50]                          The underlined portion of the definition refers to BDUs.  BDUs are not a “broadcaster” within the meaning of the Copyright Act because their primary activity in relation communication signals is their retransmission.  Thus, the broadcaster’s s. 21(1)(c) right to authorize, or not authorize, another broadcaster to simultaneously retransmit its signals does not apply against BDUs.  In other words, under s. 21 of the Copyright Act, a broadcaster’s exclusive right does not include a right to authorize or prohibit a BDU from retransmitting its communication signals.

(b)      Section 31

[51]                          In addition to their s. 21 rights in communication signals, broadcasters may hold other retransmission rights under the Copyright Act.  As mentioned, a pre-recorded television program is often copyright subject matter that can be protected as an original “dramatic work” or a “compilation” thereof (s. 2 of the Copyright Act).  The broadcaster, as a corporation, may hold copyright in the pre-recorded program or compilation of programs carried in its signals, either as the employer of the author of such a work or as an assignee of copyright from the original author.

[52]                          The Copyright Act seeks to regulate the economic rights in communication signals, as well as the retransmission of works by BDUs.  The BDUs contend that the value for signal regime would conflict with the retransmission regime for works set out in s. 31 of the Copyright Act.  The proposed regime would enable broadcasters to control the simultaneous retransmission of programs, by granting them the right to require deletion of any program in which they own or control the copyright from all signals distributed by the BDU, if no agreement is reached on compensation for the simultaneous retransmission of the broadcaster’s programming services.

[53]                          The Copyright Act in s. 3(1)(f) confers on the owner of copyright in a work the exclusive right to communicate it to the public by telecommunication.  Section 3(1)(f) provides:

           3. (1) For the purposes of this Act, “copyright”, in relation to a work, means the sole right . . .

           (f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication,

. . .

“Telecommunication”, in s. 2 of the Act, is broadly defined to include

any transmission of . . . intelligence of any nature by wire, radio, visual, optical or other electromagnetic system.

[54]                          These general words would at first blush confer on the copyright owner, including a broadcaster in that capacity, the right to control the retransmission of the works in which it holds copyright.  However, s. 31(2) of theCopyright Act proceeds in detailed fashion to circumscribe the right of copyright owners to control theretransmission of literary, dramatic, musical or artistic works carried in signals. “Signal” is defined for the purposes of s. 31(2) to mean “a signal that carries a literary, dramatic, musical or artistic work and is transmitted for free reception by the public by a terrestrial radio or terrestrial television station” (see s. 31(1)).  Section 31(1) defines“retransmitter” as “a person who performs a function comparable to that of a cable retransmission system . . .”.

[55]                          Section 31(2) provides: 

           It is not an infringement of copyright for a retransmitter to communicate to the public by telecommunication any literary, dramatic, musical or artistic work if

           (a)  the communication is a retransmission of a local or distant signal;

           (b)  the retransmission is lawful under the Broadcasting Act;

           (c)  the signal is retransmitted simultaneously and without alteration, except as otherwise required or permitted by or under the laws of Canada;

           (d) in the case of the retransmission of a distant signal, the retransmitter has paid any royalties, and complied with any terms and conditions, fixed under this Act; and

           (e) the retransmitter complies with the applicable conditions, if any, referred to in paragraph (3)(b).

[56]                          Read together, ss. 31(1) and 31(2) create an exception to the exclusive right of the copyright owners of literary, dramatic, musical or artistic works to control the communication of their works to the public by telecommunication.  The exception, or user’s right, in effect, entitles BDUs to retransmit those works without the copyright owners’ consent, where the conditions set out in paras. (a) through (e) are met.  Paragraph (b) provides that the retransmission must be lawful under the Broadcasting Act.  I will come back to the meaning of this particular condition.

[57]                          In the case of works carried in distant signals only, the section provides copyright owners with a right to receive royalties as payment for the simultaneous retransmission of those works by a BDU.  The royalties are determined by the Copyright Board, on the basis of tariffs filed by collective societies, pursuant to the regime detailed in ss. 71 to 74 of the Copyright Act.  Under s. 31(2), works carried in local signals attract no royalty when retransmitted in accordance with all conditions of that section.  The Governor in Council has defined “local signal” as the signal of a terrestrial station reaching all or a portion of the service area of a retransmitter.  A “distant signal” is a signal that is not a local signal.  See ss. 1 and 2 of Local Signal and Distant Signal Regulations, SOR/89-254.

[58]                          It bears underlining that, in the case of works carried in both local and distant signals, the copyright owner has no right to prohibit the simultaneous retransmission of the work; recourse is limited to receiving through a collective society the prescribed royalty, but only for the simultaneous retransmission of works carried in distant signals (ss. 76(1) and 76(3) of the Copyright Act).  On the one hand, the copyright owner is granted a general right to retransmit the work.  This retransmission right is part of the right, under s. (3)(1)(f), to communicate the work by telecommunication to the public.  On the other hand, the owner’s general right to retransmit is restricted by a carve-out in s. 31(2) of the Copyright Act, which effectively grants to a specific class of retransmitters two retransmission rights.  The first right lets these users simultaneously retransmit without a royalty payment, works carried in a local signal.  The second right lets them simultaneously retransmit works carried in distant signals, but only subject to the payment of royalties under a form of compulsory licence regime (Copyright Act, s. 31(2)(a) and (d)).  Both user rights are, subject to s. 31(2), beyond the owner’s control.  

[59]                          In sum, under the Copyright Act’s retransmission regimes for communication signals and for works:

- Broadcasters have a limited exclusive right in their signals (s. 21);

-  Broadcasters do not have an exclusive right in signals against BDUs;

- BDUs have the right to simultaneously retransmit works carried in local signals without authorization and without payment to the copyright owner;

- Owners of copyright in those works, including broadcasters in that capacity, do not have the right to block retransmission of local or distant signals carrying their works;

- The Copyright Board has jurisdiction to value the compulsory licence royalty for the simultaneous retransmission of works carried in distant signals;

(4)      Finding Conflict

[60]                          The CRTC’s proposed value for signal regime would enable broadcasters to negotiate compensation for the retransmission by BDUs of their signals or programming services, regardless of whether or not they carry copyright protected “work[s]”, and regardless of the fact that any such works are carried in local signals for which the Copyright Act provides no compensation.  Importantly, contrary to the retransmission regimes of theCopyright Act, the value for signal regime proposed by the CRTC would grant individual broadcasters, should they elect to be governed by this regime, the right to prohibit the simultaneous retransmission of their programs.

[61]                          As mentioned, the presumption of coherence between related Acts of Parliament requires avoiding an interpretation of a provision that would introduce conflict into the statutory scheme.  In this case, the presumption of coherence requires that if the CRTC’s proposed regulatory regime would create such conflict with the specific expressions of Parliament’s intent under the Copyright Act, it must be ultra vires.  Sections 21 and 31(2) of theCopyright Act are relevant.

[62]                          First, the value for signal regime conflicts with s. 21(1) of the Copyright Act because it would grantbroadcasters a retransmission authorization right against BDUs that was withheld by the scheme of the Copyright Act.

[63]                          Looking only at the letter of the provision, s. 21 expressly speaks only to the relationship between a broadcaster and another broadcaster and not the relationship between a broadcaster and a retransmitter. As such, it is arguable that nothing in s. 21 purports to prevent another regulator from regulating the terms for carriage of a broadcaster’s television signal by the BDUs, leaving it open to the CRTC, provided it is authorized to do so under the Broadcasting Act, to establish a value for signal regime without conflicting with s. 21.

[64]                          However, s. 21 cannot be considered devoid of its purpose.  This Court has characterized the purpose of the Copyright Act as a balance between authors’ and users’ rights.  The same balance applies to broadcasters and users.  In Théberge, Binnie J. recognized that the Copyright Act

. . . is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator (or, more accurately, to prevent someone other than the creator from appropriating whatever benefits may be generated). [para. 30]

(See also CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, [2004] 1 S.C.R. 339, at paras. 10 and 23.)

[65]                          This point was reiterated in Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427.  In that case, the Court considered whether, for the purposes of the Copyright Act, Internet Service Providers “communicate [works] to the public” when such works are requested by their subscribers — thereby infringing copyright in such works.  The Court was required to interpret s. 2.4(1)(b) of the Copyright Act, which provides that

a person whose only act in respect of the communication of a work or other subject-matter to the public consists of providing the means of telecommunication necessary for another person to so communicate the work or other subject-matter does not communicate that work or other subject-matter to the public.

[66]                          In rejecting the argument that s. 2.4(1)(b), as an exemption, should be read narrowly, the majority, perBinnie J., held that

. . . under the Copyright Act, the rights of the copyright owner and the limitations on those rights should be read together to give “the fair and balanced reading that befits remedial legislation”. [para. 88]

The Court recognized that “[s]ection 2.4(1)(b) is not a loophole but an important element of the balance struck by the statutory copyright scheme” (para. 89).  The Court therefore confirmed its earlier teaching in Théberge that the policy balance established by the Copyright Act is maintained also by “giving due weight to [the] limited nature” of the rights of creators (Théberge, at para. 31).

[67]                          In my view, s. 21(1) represents the expression by Parliament of the appropriate balance to be struck between broadcasters’ rights in their communication signals and the rights of the users, including BDUs, to those signals.  It would be incoherent for Parliament to set up a carefully tailored signals retransmission right in theCopyright Act, specifically excluding BDUs from the scope of the broadcasters’ exclusive rights over the simultaneous retransmission of their signals, only to enable a subordinate legislative body to enact a functionally equivalent right through a related regime.  The value for signal regime would upset the aim of the Copyright Act to effect an appropriate “balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator” (Théberge, at para. 30).

[68]                          Second, while the conflict of the proposed regime with s. 21 is sufficient to render the regime ultra vires, further conflict arises in my opinion between the value for signal regime and the retransmission rights in worksset out in s. 31 of the Copyright Act.

[69]                          As discussed above, s. 31 creates an exception to copyright infringement for the simultaneous retransmission by a BDU of a work carried in local signals.  However, the value for signal regime envisions giving broadcasters deletion rights, whereby the broadcaster unable to agree with a BDU about the compensation for the distribution of its programming services would be entitled to require any program to which it has exclusive exhibition rights to be deleted from the signals of any broadcaster distributed by the BDU.  As noted above, “program[s]” are often “work[s]” within the meaning of the Copyright Act.  The value for signal regime would entitle broadcasters to control the simultaneous retransmission of works, while the Copyright Act specifically excludes it from the control of copyright owners, including broadcasters. 

[70]                          Again, although the exception to copyright infringement established in s. 31 on its face does not purport to prohibit another regulator from imposing conditions, directly or indirectly, on the retransmission of works, it is necessary to look behind the letter of the provision to its purpose, which is to balance the entitlements of copyright holders and the public interest in the dissemination of works.  The value for signal regime would effectively overturn the s. 31 exception to the copyright owners’ s. 3(1)(f) communication right.  It would disrupt the balance established by Parliament.

[71]                          The recent legislative history of the Copyright Act supports the view that Parliament made deliberate choices in respect of copyright and broadcasting policy.  The history evidences Parliament’s intent to facilitate simultaneous retransmission of television programs by cable and limit the obstacles faced by the retransmitters.

[72]                          Leading up to the 1997 amendment to the Copyright Act (Bill C-32), under which s. 21 was introduced, broadcasters made submissions to the Standing Committee on Canadian Heritage seeking signalrights.  They contended that they should be granted the right to authorize, or refuse to authorize, the retransmission of their signals by others, including BDUs.  The broadcasters, in fact, argued expressly against the narrow right that Parliament eventually adopted as s. 21(1)(c).  See, for example, submissions of CTV to Standing Committee on Canadian Heritage, “Re: Bill C-32” (August 30,1996) (A.R., vol. VII, at p. 68); submissions of WIC Western International Communications Ltd. (1996) (A.R., vol. VII, at p. 15); submissions of the British Columbia Association of Broadcasters, “Bill C-32, the Copyright Reform Legislation” (August 28, 1996) (A.R., vol. VII, at p. 20); submissions of the Canadian Association of Broadcasters, “Clause by Clause Recommendations for Amendments to Bill C-32” (November 27, 1996) (A.R., vol. VII, at p. 77).  In addition, although this section has not been amended since 1997, ongoing consultations between Parliament and the broadcasters show continued requests from the latter to include the right to authorize BDU retransmissions.  See, for example, submissions of CTVglobemedia, “Re: Government’s 2009 Copyright Consultations” (September 11, 2009) (A.R., vol. IX, at pp. 35-37); Canadian Association of Broadcasters, “A Submission to the House of Commons Standing Committee on Canadian Heritage With Respect to A Statutory Review of the Copyright Act” (September 15, 2003) (A.R., vol. IX, at p. 28).

[73]                          Notwithstanding successive amendments to the Copyright Act, Parliament has not amended s. 21 in the fashion requested by the broadcasters.  Parliament’s silence is not necessarily determinative of legislative intention.  However, in the context of repeated urging from the broadcasters, Parliament’s silence strongly suggests that it is Parliament’s intention to maintain the balance struck by s. 21 (see Tele-Mobile Co. v. Ontario, 2008 SCC 12, [2008] 1 S.C.R. 305, at para. 42, per Abella J.).

[74]                          The same purposeful balancing is evidenced in the legislative history of the s. 31 regime for the retransmission of works.  The predecessor to the current s. 3(1)(f) guaranteed copyright holders an exclusive right to communicate works by radio communication.  Jurisprudence interpreted the radio communication right as excluding transmissions by cable: Canadian Admiral Corp. v. Rediffusion, Inc., [1954] Ex. C.R. 382.  Section 3(1)(f) was amended in 1988 to confer the exclusive right to “communicate the work to the public bytelecommunication” to reflect the obligations entered into by Canada under the Free Trade Agreement between the Government of Canada and the Government of the United States of America, Can. T.S. 1989 No. 3 (seeCanada-United States Free Trade Agreement Implementation Act, S.C. 1988, c. 65, ss. 61 and  62; see alsoRogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, at paras. 36-37 and McKeown, at para. 3:2(b)).  The change from radio communication to telecommunication meant that cable companies were now liable for copyright infringement when they communicate copyright-protected works to the public.

[75]                          However, at the same time, Parliament specifically addressed the question of whether the simultaneous retransmission of works carried in local and distant television signals should require the consent of the copyright owner: it adopted the compulsory licence and exception regime by way of ss. 31 and 71 to 76 of the Copyright Act (Canada-United States Free Trade Agreement Implementation Act, s. 62).  Studies on the same question had preceded this enactment; there, too, a major concern was that copyright owners “should not be permitted to stop retransmission because this activity is too important to Canada’s communications system” (Standing Committee on Communications and Culture. A Charter of Rights for Creators: Report of the Sub-Committee on the Revision of Copyright (1985), at p. 80 (A.R., vol. III, at p. 118); Government Response to A Charter of Rights for Creators (February 1986) (A.R., vol. III, at p. 127)).

[76]                          The value for signal regime would rewrite the balance between the owners’ and users’ interests as set out by Parliament in the Copyright Act.  Because the CRTC’s value for signal regime is inconsistent with the purpose of the Copyright Act, it falls outside of the scope of the CRTC’s licensing and regulatory jurisdiction under the Broadcasting Act.

[77]                          I said earlier that I would come back to s. 31(2)(b) of the Copyright Act.  The majority of the FCA concluded that there is no incoherence between the value for signal regime and the Copyright Act because of s. 31(2)(b) of the Copyright Act.  This section provides that in order for the exception to copyright to apply, the retransmission must be “lawful under the Broadcasting Act”.  The majority appears to have thought this was sufficient to ground the CRTC’s jurisdiction to implement the value for signal regulatory regime.

[78]                          In my respectful opinion, this provision cannot serve to authorize the CRTC acting under theBroadcasting Act to effectively amend the very heart of the balance of the retransmission regime set out in s. 31(2).  Section 31(2)(b) is not a so-called Henry VIII clause that confers jurisdiction on the CRTC to promulgate, through regulation or licensing conditions, subordinate legislative provisions that are to prevail over primary legislation (see Sullivan, at pp. 342-43).  Absent specific indication, Parliament cannot have intended by s. 31(2)(b) to empower a subordinate regulatory body to disturb the balance struck following years of studies.  The legislative history does not lend support to this argument; indeed, the history confirms Parliament’s deliberate policy choice in enacting the compulsory licence and exception, or user’s rights, regime under s. 31(2).  A general reference to “lawful under the Broadcasting Act” cannot authorize the CRTC, acting under open-ended jurisdiction-conferring provisions, to displace the specific direction of Parliament in the Copyright Act.

[79]                          In any case, the conflict found between the value for signal regime and s. 21 is sufficient.  It could not be overcome even on a different reading of s. 31(2)(b) of the Copyright Act.

[80]                          There is one final point to be made. Section 89 of the Copyright Act provides:

     89. No person is entitled to copyright otherwise than under and in accordance with this Act or any other Act of Parliament, but nothing in this section shall be construed as abrogating any right or jurisdiction in respect of a breach of trust or confidence.

The deliberate use of the words “this Act or any other Act of Parliament” rather than “this Act or any other enactment” means that the right to copyright must be found in an Act of Parliament and not in subordinate legislation promulgated by a regulatory body. “Act” and “enactment” are defined in s. 2 of the Interpretation Act, R.S.C. 1985, c. I-21, where

“Act” means an Act of Parliament;

and

“enactment” means an Act or regulation or any portion of an Act or regulation.

The definitions confirm that Parliament did not intend that a subordinate regulatory body could create copyright by means of regulation or licensing conditions. 

[81]                          Contrary to s. 89, the value for signal regime would create a new type of copyright by regulation or licensing condition.  Sections 2 and 21 of the Copyright Act define copyright in a communication signal to include the sole right to authorize another broadcaster to retransmit it to the public simultaneously with its broadcast. Authorizing simultaneous retransmission is then an aspect of copyright, although the right under the Copyright Act is limited to authorizing only specific defined entities, other broadcasters.  In light of the legislative history discussed above, this limitation on copyright appears to be the result of a specific Parliamentary choice not to change the balance struck in the Copyright Act between broadcasters and BDUs.  The value for signal regime would create a new right to authorize retransmission (and correspondingly prevent retransmission if agreement as to compensation is not achieved), in effect, amending the copyright conferred by s. 21.  Thus the value for signal regime would create a new type of copyright and would do so without the required Act of Parliament, contrary to s. 89.

[82]                          My colleagues assert that there are functional differences between copyright and the proposed regulatory scheme.  With respect, the differences that they point to do not alter the fundamental functional equivalence between the proposed regime and a copyright.  Section 21 of the Copyright Act empowers broadcasters to prohibit the retransmission of their signals if certain conditions are met; the value for signal regime does exactly the same thing.  My colleagues are correct that the CRTC cannot, through the value for signal regime, amend s. 21 of the Copyright Act.  However that is precisely what the proposed regime does.  Parliament could have imposed conditions that are the same, or similar to the value for signal regime in s. 21 in the same way it imposed limits in s. 31 on the copyright it granted in respect of retransmission of works, had it intended broadcasters to have such a right.  Describing this new right granted to broadcasters under the value for signal regime as a series of regulatory changes does not alter the true character of the right being created.  Not calling it copyright does not remove it from the scope of s. 89.  If that type of repacking was all that was required, s. 89 would not serve its intended purpose of restricting the entitlement to copyright to grants under and in accordance with Acts of Parliament.

IV.       Conclusion

[83]                          The reference question should be answered in the negative.  The appeal should be allowed with costs throughout.

                    The reasons of Deschamps, Abella, Cromwell and Karakatsanis were delivered by

                    Abella and Cromwell JJ. —

[84]                          We have had the benefit of reading the reasons of Rothstein J. but, with respect, do not agree.

[85]                          Private local stations are licensed by the CRTC to acquire, create and produce television programming.  They serve small geographic areas defined by the reach of their signals.  According to the CRTC, local stations are key contributors to attaining the objectives for the Canadian broadcasting system. 

[86]                          Local stations have recently experienced a financial crisis.  The stations rely on advertising revenue to fund the cost of creating, acquiring and broadcasting high quality Canadian programming.  Changes in the broadcasting business environment, however, have caused advertising revenues to rapidly decline.  These changes include the development of direct-to-home satellite TV services and speciality television channels, and the widespread adoption of alternative media platforms.  

[87]                          Currently, the local stations’ over-the-air signals are picked up and retransmitted to a wider audience by cable service providers (known as broadcasting distribution undertakings, or “BDUs”).  The BDUs retransmit these signals to their own subscribers for a fee.  Under the current broadcasting regime, BDUs are not required to negotiate compensation with the local stations for retransmitting their signals to a local market.  Instead, the CRTC requires the BDUs to provide local stations with various benefits, including mandatory carriage to the station’s local market, preferential channel placement, and substitution of the local stations’ advertisements in place of those appearing on American stations transmitting the same program.  The current regime also requires the BDUs to make financial contributions to the local stations; specifically, 1.5 percent of the BDUs’ gross revenues must go to a local programming improvement fund.    

[88]                          In 2010, the CRTC issued the Broadcasting Regulatory Policy CRTC 2010-167 (the “2010 Policy”), concluding that local stations’ potential revenue streams under the existing regime needed to be expanded in order to ensure the viability of local programming.  The new regime would supply local stations with funds beyond advertising revenues, by giving them the option to negotiate with the BDUs for compensation for all retransmissions of their signals.  Where no agreement is reached, the local station would be entitled to prevent retransmission of its signal by the BDU.  The BDUs already negotiate compensation with local stations for retransmitting their signalsoutside the station’s local market, known as a “distant signal”.

[89]                          The proposed regime is consistent with the market-based negotiations that increasingly prevail on other platforms, including discretionary pay and specialty services, video-on-demand and online and mobile streaming platforms.  According to the CRTC, it is also consistent with its own approach of using market-based solutions when appropriate.  Significantly, the CRTC has determined that the new regime is necessary to preserve local stations and ensure the fulfillment of the broadcasting policy objectives set out in s. 3(1) of the Broadcasting Act, S.C. 1991, c. 11.

[90]                          While the CRTC concluded that the new regime was necessary to ensure the viability of local stations, it acknowledged concern in the 2010 Policy itself that the Copyright Act, R.S.C. 1985, c. C-42, might create a “potential impediment” to its jurisdiction to implement the regime (para. 165).  Under ss. 18.3 and 28(2) of theFederal Courts Act, R.S.C.1985, c. F-7, it therefore brought the following reference question to the Federal Court of Appeal:

Is the Commission empowered, pursuant to its mandate under the Broadcasting Act, to establish a regime to enable private local television stations to choose to negotiate with broadcasting distribution undertakings a fair value in exchange for the distribution of the programming services broadcast by those local television stations?

[91]                          We agree with the majority of the Federal Court of Appeal that this question should be answered in the affirmative, and would therefore dismiss the appeal (2011 FCA 64, 413 N.R. 312).  In our view, the new regime is merely an extension of the current regime, which places several conditions — including financial ones — on BDUs for the licence to retransmit local stations’ signals.  We also conclude that nothing in the Copyright Actcreates a barrier to the CRTC’s authority to implement the new regime.

Analysis

[92]                          The narrow reference question requires us to determine whether the CRTC has jurisdiction under theBroadcasting Act to implement the new regime.    Read on its own, the Broadcasting Act appears to grant this jurisdiction, which raises the question of whether something in the Copyright Act demonstrates Parliament’s intent to derogate from or attenuate this jurisdiction in order to satisfy another public interest.  In other words, we must determine whether there would be an unavoidable conflict if the Broadcasting Act were read to confer on the CRTC the jurisdiction to implement the regime.  If so, this would suggest a less expansive reading of the CRTC’s jurisdiction.  An unavoidable conflict only occurs when two statutes directly contradict one another, in a way that applying one excludes the application of the other, or where their concurrent application could lead to unreasonable or absurd results: Lévis (City) v. Fraternité des policiers de Lévis Inc., 2007 SCC 14, [2007] 1 S.C.R. 591, at para. 47.  Generally, the Court will favour an interpretation that avoids such a conflict: R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867, at para. 30.  However, in our view, there is no conflict between theBroadcasting Act and the Copyright Act that would prevent reading the former as conferring on the CRTC the jurisdiction to implement the new regime.   

[93]                          Analytically, the first question is whether the CRTC has jurisdiction to implement the proposed regime under the Broadcasting Act.  The CRTC is granted a broad, flexible mandate to implement measures that further the broadcasting policy of Canada.  Section 3(1) of the Broadcasting Act sets out the basic operative broadcasting policies. They primarily address the need to support local content in television and other programs in order to enrich Canada’s cultural, political, social and economic environments. The provisions that confer powers on the CRTC — what Rothstein J. refers to as “jurisdiction-conferring” provisions — explicitly incorporate these policy objectives.  Under s. 5(1) of the Act, the CRTC “shall regulate and supervise all aspects of the Canadian broadcasting system with a view to implementing the broadcasting policy set out in subsection 3(1)”.  The CRTC possesses the jurisdiction to issue licences to participants in the Canadian broadcasting system.  It can impose any conditions onthese licences that it “deems appropriate for the implementation of the broadcasting policy set out in subsection 3(1)”: s. 9(1)(b)(i); CKOY Ltd. v. The Queen, [1979] 1 S.C.R. 2; see also Canadian Radio-Television and Telecommunications Commission v. CTV Television Network Ltd., [1982] 1 S.C.R. 530, at p. 545.  The CRTC may also make regulations under s. 10(1)(k) of the Act “respecting such other matters as it deems necessary for the furtherance of its objects”.  Section 3(2) of the Act states that the Canadian broadcasting system is a single system, and that the objectives in s. 3(1) can best be achieved by regulation and supervision through “a single independent public authority”: the CRTC.

[94]                          As “broadcasting undertaking[s]” under s. 2(1) of the Act, BDUs are part of the single broadcasting system that the CRTC must regulate and supervise pursuant to s. 5(1). BDUs do not have a freestanding right to retransmit local stations’ programs: BDUs derive that right only from licences granted pursuant to s. 9 of theBroadcasting Act, subject to any conditions imposed under s. 9(1)(b)(i).  The current conditions of the BDUs’ licences to retransmit local stations’ signals require them to provide the benefits noted earlier, which include payments to a fund for the local stations. The proposed regime would involve an extension or alteration of the conditions on BDUs’ licences, requiring them to negotiate compensation directly with the local stations.

[95]                          The breadth of the CRTC’s discretion to determine what measures are necessary to further Canada’s broadcasting policy was acknowledged by this Court in CKOY.  The issue was whether the CRTC had jurisdiction under the Broadcasting Act to enact a regulation which prohibited stations or networks from broadcasting telephone interviews without the participant’s consent.  Spence J., writing for the majority, observed that “Parliament intended to give to the Commission a wide latitude with respect to the making of regulations to implement the policies and objects for which the Commission was created” (at p. 12, quoting with approval the Court of Appeal: (1976), 13 O.R. (2d) 156, at p. 162).  He set out the test for determining the validity of the CRTC’s regulations as follows:

[T]he validity of any regulation enacted in reliance upon [the predecessor section to s. 10] must be tested by determining whether the regulation deals with a class of subject referred to in s. 3 of the statute and … in doing so the Court looks at the regulation objectively. [Emphasis added; p. 11]

[96]                          Spence J. concluded that because the particular regulation had a basis in several of the policies enumerated in s. 3 of the Act, including the need to provide a reasonably balanced opportunity for the expression of differing views, and to provide programming of a high standard, the regulation was authorized by the Broadcasting Act: pp. 12-14.

[97]                          In accordance with this approach, the proposed regime is within the CRTC’s regulatory jurisdiction under the Broadcasting Act, since it is demonstrably linked to several of the policies in s. 3. In its 2010 Policy, the CRTC determined that the new regime was necessary to ensure the fulfillment of the broadcasting policy objectives set out in s. 3(1) of the Broadcasting Act.  In particular, the CRTC concluded that the regime was necessary to fulfill the policies stated in s. 3(1)(e) and 3(1)(f):

(e) each element of the Canadian broadcasting system shall contribute in an appropriate manner to the creation and presentation of Canadian programming;

(f) each broadcasting undertaking shall make maximum use, and in no case less than predominant use, of Canadian creative and other resources in the creation and presentation of programming. . . .

[98]                          Because the proposed regime was intended to save the financially troubled local stations, it is also linked to the policy set out in s. 3(1)(s):

(s) private networks and programming undertakings should, to an extent consistent with the financial and other resources available to them,

(i)     contribute significantly to the creation and presentation of Canadian programming, and

(ii)   be responsive to the evolving demands of the public. . . .

[99]                          Modern statutory interpretation looks to the objectives of the statute to construe the meaning of the words and the mandate.  This had led to a long and accepted line of jurisprudence which has consistently interpreted the CRTC’s jurisdiction to regulate and supervise Canadian broadcasting broadly.  Reference has been made to the “very broad words” of the jurisdiction-conferring provisions in the Broadcasting Act, as well as the “embracive objects committed to the Commission under [the predecessor to s. 5(1)], objects which extend to the supervision of ‘all aspects of the Canadian broadcasting system with a view to implementing the broadcasting policy enunciated in section 3 of the Act’”: CKOY at pp. 13-14, quoting Laskin C.J. in Capital Cities Communications Inc. v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141. 

[100]                      The Federal Court of Appeal has similarly and repeatedly indicated that the CRTC “has a very broad mandate under the Broadcasting Act”, and “has been endowed with powers couched in the broadest of terms for ‘the supervision and regulation of the Canadian broadcasting system’. . . with a view to implementing the broadcasting policy enunciated in section 3 of the Act”:  Telecommunications Workers Union v. Canadian Radio-Television and Telecommunications Commission, 2003 FCA 381, [2004] 2 F.C.R. 3 (“T.W.U.”), at para. 40; Assn. for Public Broadcasting in British Columbia v. Canadian Radio-television and Telecommunications Commission, [1981] 1 F.C. 524 (C.A.), at p. 530, leave to appeal refused, [1981] 1 S.C.R. v.  Because of the CRTC’s specialization and expertise, “Parliament has granted extensive powers for the supervision and regulation of the Canadian broadcasting system to allow [the CRTC] to implement the broadcasting policy set out in s. 3 of the Broadcasting Act . . . .  It is settled that the CRTC has broad discretion in exercising its powers to issue or revoke licences”: Société Radio-Canada v. Métromédia CMR Montréal Inc. (1999), 254 N.R. 266 (F.C.A.), at para. 2.

[101]                      The CRTC’s broad jurisdiction derives from the fact that each of ss. 5(1), 9(1)(b)(i) and 10(1)(k) confer generally-worded powers, along with a discretion to use them as the CRTC deems appropriate to implement the objects set out in s. 3(1). Courts have consistently determined the validity of the CRTC’s exercises of power under any of these provisions by applying the CKOY test: was the power used in connection with a policy objective in s. 3(1)? In CKOY, Spence J. dealt with the use of the regulation-making power, and noted that the section’s “very broad words ... authorize one enactment of regulations to further any policy outlined in the whole of s. 3” (p. 13).  In Canadian Broadcasting League v. Canadian Radio-television and Telecommunications Commission, [1983] 1 F.C. 182 (C.A), aff’d [1985] 1 S.C.R. 174, Le Dain J.A., when he was in the Federal Court of Appeal, held that the same principle applies to the power to attach conditions to licences:

     What was said concerning the validity of a regulation under [the predecessor to s. 10(1)] applies equally in my opinion to the validity of a condition attached to a licence under [the predecessor to s. 9(1)]. That section begins, like [the predecessor to s. 10(1)], with the words “In furtherance of the objects of the Commission”, and empowers the Executive Committee to subject a broadcasting licence to such conditions related to the circumstances of the licensee as it “deems appropriate for the implementation of the broadcasting policy enunciated in section 3”, an authority that is, if anything, even broader than that which is conferred by [the predecessor to s. 10(1)(k)].” [Emphasis added; p. 192]

In T.W.U., Sexton J.A. reiterated that the CKOY test applies to the exercise of both the regulation-making and licence-condition powers. He held that

the CRTC has broad power to impose conditions of license. The only limitation on the conditions that the CRTC may impose is that it must deem the conditions “appropriate for the implementation of the broadcasting policy set out in subsection 3(1).” [Emphasis added; para. 48.]

[102]                      Moreover, courts have thus far recognized that the mandate granted to the CRTC under theBroadcasting Act is both economic and cultural (T.W.U., at para. 28), not “primarily cultural”, as asserted by Justice Rothstein (at para. 32), and have upheld regulations and licensing conditions imposed by the CRTC in furtherance of economic objectives listed in the Broadcasting Act, but absent any specific grant of power.

[103]                      In Canadian Broadcasting League, as in the present case, at issue was the CRTC’s power to direct the economic relationship between participants in the broadcasting system and, specifically, whether the CRTC could fix the installation fees and maximum monthly fees that a BDU could charge to its subscribers. Le Dain J. A. held that the CRTC could do so under either its licensing power or its regulation-making power, rejecting the argument that the CRTC lacked the power to regulate rates and fees because it was not expressly granted in theBroadcasting Act.

[104]                      The CRTC’s jurisdiction to impose financial conditions on broadcast system participants was also upheld by the Federal Court of Appeal in Canadian Motion Picture Distributors Assn. v. Partners of Viewer’s Choice Canada (1996), 137 D.L.R. (4th) 561.  The court held that the CRTC did not exceed its statutory mandate by requiring a pay-per-view licensee to share the revenues it earned from the distribution of feature films in equal parts with the copyright holder and the licensed programming undertaking that assembled the pay-per-view content.  According to the court:

     The reference to the film distribution industry as “an important element of the broadcasting system”provides a clear link to the Commission's objects in subsection 5(1) of the Act and the broadcasting policy in subsection 3(1). [Emphasis added; p. 565.]

A similar “clear link” exists in this case.

[105]                      And in T.W.U., Sexton J.A. found that the CRTC could enact a regulation that essentially deregulated basic cable service rates in areas where there was sufficient competition to let market forces take over. He found that the CRTC had an obligation, based on the policy objectives in s. 3(1), to ensure that programming was provided at affordable rates, and could rely on market forces to fulfill that objective. Similarly, in this case, the CRTC seeks to implement a market-based negotiation scheme consistent with the policy objectives in s. 3(1).

[106]                      In each of these cases, the CRTC regulated an economic aspect of the Canadian broadcasting system by requiring revenue splitting, by setting rates for services, or by deregulating them. None of these forms of regulation was tied to a specific and express grant of power in the Broadcasting Act. In each case, the CRTC was found to have jurisdiction under either or both of its general powers to make regulations and impose conditions on licences.

[107]                      The conclusion that the proposed regime is within CRTC jurisdiction is consistent with this broad mandate, most recently upheld by this Court in Bell Canada v. Bell Aliant Regional Communications, 2009 SCC 40, [2009] 2 S.C.R. 764.  The issue was whether the CRTC could exercise the rate-setting authority it had under the Telecommunications Act, S.C. 1993, c. 38, to require local carriers to spend their deferral accounts by expanding broadband services and giving credits to consumers.  This Court confirmed that the decision was entirely within the CRTC’s mandate:

[T]he issues raised in these appeals go to the very heart of the CRTC’s specialized expertise.  In the appeals before us, the core of the quarrel in effect is with the methodology for setting rates and the allocation of certain proceeds derived from those rates, a polycentric exercise with which the CRTC is statutorily charged and which it is uniquely qualified to undertake. . . .

. . .

     [I]t follows from the CRTC’s broad discretion to determine just and reasonable rates under s. 27, its power to order a carrier to adopt any accounting method under s. 37, and its statutory mandate under s. 47 to implement the wide-ranging Canadian telecommunications policy objectives set out in s. 7, that the Telecommunications Act provides the CRTC with considerable scope in establishing and approving the use to be made of deferral accounts.  [Emphasis added; paras. 38 and 55.]

[108]                      This broad mandate to set rates in furtherance of Canada’s telecommunications policy is analogous to the CRTC’s broad mandate to set licensing conditions in furtherance of Canada’s broadcasting policy as it has purported to do in the 2010 Policy.  Both mandates involve “a polycentric exercise”, necessitating a “considerable scope” of jurisdiction. 

[109]                      Having determined that the Broadcasting Act would grant authority to the CRTC to implement the new regime, the question then is whether the regime creates an “unavoidable conflict” with the Copyright Act in a way that would invalidate this preliminary interpretive conclusion. 

[110]                      The BDUs point to two unavoidable conflicts between the proposed regime and the provisions of theCopyright Act.  First, they argue that the regime conflicts with s. 21(1)(c).  This provision states that a “broadcaster” — which includes a local station — has the sole right “to authorize another broadcaster to retransmit [its signals] to the public”.  The definition of “broadcaster” in s. 2 of the Copyright Act, however, excludes BDUs, as entities whose “primary activity in relation to communication signals is their retransmission”.  Since BDUs are excluded from the definition, they argue that they need not be “authorize[d]” under s. 21(1)(c) at all.  This provision therefore conflicts with the proposed regime, which not only gives local stations the right to authorize BDUs to retransmit their signals, but also gives them the right to block BDUs from retransmitting those signals altogether.

[111]                      In our view, there is no unavoidable conflict with s. 21(1)(c).  There is nothing in either the definition of “broadcaster” or in s. 21(1)(c) of the Copyright Act that purports to immunize BDUs from licensing requirements put in place by the CRTC in accordance with its broadcasting mandate.  BDUs derive their right to retransmit signals only from licences granted pursuant to s. 9 of the Broadcasting Act, and must meet the conditions imposed by the CRTC on their retransmission licences, including those set out in the proposed regime.     

[112]                      Section 21(1)(c) deals only with the extent to which local stations, as “broadcasters”, have a copyright in their communication signals.  It does not affect the licensing requirements under the Broadcasting Act.  While BDUs do not need permission to retransmit signals under the Copyright Act, that does not mean they are free to retransmit signals without permission under the Broadcasting Act. 

[113]                      The second conflict alleged by the BDUs is with s. 31(2)(d) of the Copyright Act.  The full provision states:

     31. . . .

(2) It is not an infringement of copyright for a retransmitter to communicate to the public by telecommunication any literary, dramatic, musical or artistic work if

(a) the communication is a retransmission of a local or distant signal;

(b) the retransmission is lawful under the Broadcasting Act;

(c) the signal is retransmitted simultaneously and without alteration, except as otherwise required or permitted by or under the laws of Canada;

(d) in the case of the retransmission of a distant signal, the retransmitter has paid any royalties, and complied with any terms and conditions, fixed under this Act; and

(e) the retransmitter complies with the applicable conditions, if any, referred to in paragraph (3)(b).

[114]                      This section means that it is not an infringement of copyright if a retransmitter, like a BDU, is retransmitting local or distant signals, is retransmitting lawfully under the Broadcasting Act, and, if it is retransmitting a distant signal, has paid copyright royalties.  The BDUs’ main argument under this provision is that even though s. 31(2)(a) refers to both “local” and “distant” signals, s. 31(2)(d) limits royalty payments to distant signals only.  This reference to distant signals in s. 31(2)(d), they say, conflicts with the proposed regime, which effectively creates royalties for local signals, which are generally the type of signals emitted by local stations.  

[115]                      This argument turns s. 31(2)(d) on its head.  Even within the context of the Copyright Act alone, s. 31(2)(d) simply requires that BDUs pay a copyright royalty to copyright owners for retransmitting “distant signal[s]”.  Nothing in the plain meaning of this provision actually prevents a copyright royalty for retransmitting “local signal[s]”.  If Parliament had intended to prevent such royalties for local signals under any circumstances, it would have expressly said so.        

[116]                      But, despite the plain wording of s. 31(2)(d), the BDUs argue that it was Parliament’s implicit intention to prevent royalties for the retransmission of local signals.  They point to a number of reports, committee transcripts and submissions relating to the legislative history of the Copyright Act, which they claim demonstrate Parliament’s consistent refusal to grant such royalties.  With respect, these materials are of limited assistance.  The fact that Parliament may have decided not to impose royalties on the retransmission of local signals for the benefit of copyright owners has nothing to do with whether the BDUs can be required to compensate local stations for a different purpose, namely, to fulfill the conditions of their retransmission licence under the Broadcasting Act.  We therefore do not accept that s. 31(2)(d) of the Copyright Act creates an unavoidable conflict with the proposed regime.

[117]                      The lack of a conflict between the proposed regime and s. 31(2)(d) is highlighted by s. 31(2)(b), which states that BDUs are only entitled to avoid copyright infringement for retransmitting signals where “the retransmission is lawful under the Broadcasting Act”.  We agree with the majority of the Federal Court of Appeal that s. 31(2)(b) demonstrates Parliament’s clear intention that the conditions placed on BDUs under theBroadcasting Act in furtherance of Canada’s broadcasting policy are ranked ahead of the BDUs’ statutory right to retransmit signals under s. 31(2) of the Copyright Act.

[118]                      The BDUs argue, however, that the language in s. 31(2)(b) is too broad to override the specific language in s. 31(2)(d) limiting royalties to those for “distant signals”.  They cite two cases to support their argument:Barrie Public Utilities v. Canadian Cable Television Assn., 2003 SCC 28, [2003] 1 S.C.R. 476, and ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140.  Neither of these two cases deals with a conflict between statutes, and neither stands for the proposition that a single word in a provision — such as “distant” signal — can defeat an otherwise express and clear legislative intention. Barrie Public Utilities dealt only with whether the CRTC had jurisdiction to grant a right of access to a utility’s power poles under s. 43(5) of the Telecommunications Act, and ATCO dealt with whether the Alberta Energy and Utilities Board had jurisdiction to order that proceeds from an asset sale be allocated to a utility’s customers under s. 15(3) of the Alberta Energy and Utilities Board Act, R.S.A. 2000, c. A-17.   

[119]                      At the end of the day, the BDUs’ argument is that the proposed regime somehow creates a new copyright.  They argue that the exclusive right to authorize or block retransmission by BDUs, and the requirement that BDUs compensate local stations for retransmitting their signals, creates a copyright for local stations in the retransmission of their signals.  According to the BDUs, this violates s. 89 of the Copyright Act, which states that “[n]o person is entitled to copyright otherwise than under and in accordance with this Act or any other Act of Parliament”.  It also violates this Court’s statement in CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, [2004] 1 S.C.R. 339 that “copyright is a creature of statute and the rights and remedies provided by the Copyright Act are exhaustive” (para. 9). 

[120]                      We do not see the proposed regime as giving local stations a copyright in the retransmission of their television signals.  Section 2 of the Copyright Act defines “copyright” in the case of a communication signal as “the rights described in . . . section 21”.  The exhaustive definition of copyright in s. 21 leaves out the right to authorize retransmission by BDUs. We do not see the proposed regime as amending this definition, something it cannot in any event do, given s. 89, but as instituting a different type of regulation with respect to an aspect of broadcasting that is simply not included in the exhaustive statutory scheme of copyright.

[121]                      There are significant functional differences, as well. The copyright owner does not need to forego any other entitlements to claim a copyright.  Instead, copyright automatically attaches to a communication signal, lasting for 50 years after the end of the calendar year in which it was broadcast: Copyright Act, s. 23(1)(c). The proposed regime, in contrast, gives local stations a limited power, and only vis-à-vis BDUs.  The local stations have to forego their existing entitlements under the current regime in order to participate in the new regime.  Moreover, the local stations’ power to prevent BDUs from retransmitting their signals is conditional on a complete breakdown of negotiations and a resulting lack of agreement with the BDUs.  There are additional conditions under the proposed regime that are not placed on copyright owners: for example, local stations must spend approximately 30 percent of any negotiated compensation they receive on Canadian programming, with 5 percent dedicated to “programs of national interest”.  Finally, unlike copyright, the new regime is renewable every three years and subject to ongoing regulatory oversight by the CRTC: 2010 Policy, paras. 51, 74-75 and 155-164.  The proposed regime, therefore, is far from “functionally equivalent”, as stated by the dissent in the Federal Court of Appeal (at para. 84), to giving local stations a full copyright in the retransmission of their signals.  

[122]                      The regime aims to further the objectives found in ss. 3(1)(e)(f) and (s), which call for each element of the Canadian broadcasting system to contribute to the creation and presentation of Canadian programming; call for broadcasting undertakings to make maximum use of Canadian creative and other resources in the creation and presentation of programming; and call for private networks, to the extent consistent with the resources available to them, to contribute to the creation and presentation of Canadian programming.  The CRTC has every right to turn to market-based means of fulfilling these specific objectives of Canadian broadcasting policy.  These objectivesdiffer from the more general copyright objectives of “promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator”: Théberge v. Galérie d’Art du Petit Champlain inc., 2002 SCC 34, [2002] 2 S.C.R. 336, at para. 30. Indeed, as discussed above, BDUs are already required to make financial contributions under the current regime, and they are already required to negotiate compensation with local stations for the retransmission of distant signals. 

[123]                       In our view, therefore, there is no unavoidable conflict with the Copyright Act that would eliminate the CRTC’s jurisdiction to implement the proposed regime.

[124]                      The BDUs also make policy arguments, submitting that giving local stations the ability to block their signals, as well as the extra compensation to local stations, will increase costs and signal interruptions, ultimately hurting end consumers.  We do not find this argument persuasive.  First, retransmitting local signals is currently theonly instance where a BDU can distribute signals without the broadcaster’s prior consent.  The CRTC has implemented mandatory negotiation-based schemes for other services, including specialty channels, pay-per-view and video-on-demand. 

[125]                      More importantly, however, the new regime’s potential success in achieving the broadcasting policy objectives is completely irrelevant to determining whether the CRTC has jurisdiction to implement it.  Any question as to the wisdom of the regime is a question solely for the CRTC as the single broadcasting authority in s. 3(2) of the Broadcasting Act.  As an expert body, the CRTC, not the courts, is in the best position to decide what measures are necessary to save local stations from going bankrupt.  In any event, if for any reason the proposed regime proves unworkable in the future, the CRTC has both the authority and the necessary expertise to make the appropriate changes.

[126]                      We would therefore dismiss the appeal with costs. 

APPENDIX

Broadcasting Act, S.C. 1991, c. 11

            2. (1) In this Act,

. . .

“broadcasting undertaking” includes a distribution undertaking, a programming undertaking and a network;

. . .

“distribution undertaking” means an undertaking for the reception of broadcasting and the retransmission thereof by radio waves or other means of telecommunication to more than one permanent or temporary residence or dwelling unit or to another such undertaking;

. . .

“program” means sounds or visual images, or a combination of sounds and visual images, that are intended to inform, enlighten or entertain, but does not include visual images, whether or not combined with sounds, that consist predominantly of alphanumeric text;

“programming undertaking” means an undertaking for the transmission of programs, either directly by radio waves or other means of telecommunication or indirectly through a distribution undertaking, for reception by the public by means of broadcasting receiving apparatus;

. . .

            3. (1) It is hereby declared as the broadcasting policy for Canada that

. . .

            (e) each element of the Canadian broadcasting system shall contribute in an appropriate manner to the creation and presentation of Canadian programming;

            (f) each broadcasting undertaking shall make maximum use, and in no case less than predominant use, of Canadian creative and other resources in the creation and presentation of programming . . .;

            (g) the programming originated by broadcasting undertakings should be of high standard;

. . .

            (s) private networks and programming undertakings should, to an extent consistent with the financial and other resources available to them,

            (i) contribute significantly to the creation and presentation of Canadian programming, and

            (ii) be responsive to the evolving demands of the public; and

            (t) distribution undertakings

            (i) should give priority to the carriage of Canadian programming services and, in particular, to the carriage of local Canadian stations,

. . .

            (iii) should, where programming services are supplied to them by broadcasting undertakings pursuant to contractual arrangements, provide reasonable terms for the carriage, packaging and retailing of those programming services

. . .

(2) It is further declared that the Canadian broadcasting system constitutes a single system and that the objectives of the broadcasting policy set out in subsection (1) can best be achieved by providing for the regulation and supervision of the Canadian broadcasting system by a single independent public authority.

. . .

            5. (1) Subject to this Act and the Radiocommunication Act and to any directions to the Commission issued by the Governor in Council under this Act, the Commission shall regulate and supervise all aspects of the Canadian broadcasting system with a view to implementing the broadcasting policy set out in subsection 3(1) and, in so doing, shall have regard to the regulatory policy set out in subsection (2).

            (2) The Canadian broadcasting system should be regulated and supervised in a flexible manner that

(a) is readily adaptable to the different characteristics of English and French language broadcasting and to the different conditions under which broadcasting undertakings that provide English or French language programming operate;

(b) takes into account regional needs and concerns;

(c) is readily adaptable to scientific and technological change;

(d) facilitates the provision of broadcasting to Canadians;

(e) facilitates the provision of Canadian programs to Canadians;

(f) does not inhibit the development of information technologies and their application or the delivery of resultant services to Canadians; and

(g) is sensitive to the administrative burden that, as a consequence of such regulation and supervision, may be imposed on persons carrying on broadcasting undertakings.

            (3) The Commission shall give primary consideration to the objectives of the broadcasting policy set out in subsection 3(1) if, in any particular matter before the Commission, a conflict arises between those objectives and the objectives of the regulatory policy set out in subsection (2).

. . .

            9. (1) Subject to this Part, the Commission may, in furtherance of its objects,

(a) establish classes of licences;

(b) issue licences for such terms not exceeding seven years and subject to such conditions related to the circumstances of the licensee

(i) as the Commission deems appropriate for the implementation of the broadcasting policy set out in subsection 3(1), and

(ii) in the case of licences issued to the Corporation, as the Commission deems consistent with the provision, through the Corporation, of the programming contemplated by paragraphs 3(1)(l) and (m);

(c) amend any condition of a licence on application of the licensee or, where five years have expired since the issuance or renewal of the licence, on the Commission’s own motion;

(d) issue renewals of licences for such terms not exceeding seven years and subject to such conditions as comply with paragraph (b);

(e) suspend or revoke any licence;

(f) require any licensee to obtain the approval of the Commission before entering into any contract with a telecommunications common carrier for the distribution of programming directly to the public using the facilities of that common carrier;

(g) require any licensee who is authorized to carry on a distribution undertaking to give priority to the carriage of broadcasting; and

(h) require any licensee who is authorized to carry on a distribution undertaking to carry, on such terms and conditions as the Commission deems appropriate, programming services specified by the Commission.

. . .

            10. (1) The Commission may, in furtherance of its objects, make regulations

(a) respecting the proportion of time that shall be devoted to the broadcasting of Canadian programs;

(b) prescribing what constitutes a Canadian program for the purposes of this Act;

(c) respecting standards of programs and the allocation of broadcasting time for the purpose of giving effect to the broadcasting policy set out in subsection 3(1);

(d) respecting the character of advertising and the amount of broadcasting time that may be devoted to advertising;

(e) respecting the proportion of time that may be devoted to the broadcasting of programs, including advertisements or announcements, of a partisan political character and the assignment of that time on an equitable basis to political parties and candidates;

(f) prescribing the conditions for the operation of programming undertakings as part of a network and for the broadcasting of network programs, and respecting the broadcasting times to be reserved for network programs by any such undertakings;

(g) respecting the carriage of any foreign or other programming services by distribution undertakings;

(h) for resolving, by way of mediation or otherwise, any disputes arising between programming undertakings and distribution undertakings concerning the carriage of programming originated by the programming undertakings;

(i) requiring licensees to submit to the Commission such information regarding their programs and financial affairs or otherwise relating to the conduct and management of their affairs as the regulations may specify;

(j) respecting the audit or examination of the records and books of account of licensees by the Commission or persons acting on behalf of the Commission; and

            (k) respecting such other matters as it deems necessary for the furtherance of its objects.

Copyright Act, R.S.C., 1985, c. C-42

            2. In this Act,

. . .

“broadcaster” means a body that, in the course of operating a broadcasting undertaking, broadcasts a communication signal in accordance with the law of the country in which the broadcasting undertaking is carried on, but excludes a body whose primary activity in relation to communication signals is their retransmission;

. . .

“communication signal” means radio waves transmitted through space without any artificial guide, for reception by the public;

. . .

“copyright” means the rights described in

(a) section 3, in the case of a work,

(b) sections 15 and 26, in the case of a performer’s performance,

(c) section 18, in the case of a sound recording, or

(d) section 21, in the case of a communication signal;

. . .

            3. (1) For the purposes of this Act, “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right

. . .

(f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication,

. . .

and to authorize any such acts.

            (1.1) A work that is communicated in the manner described in paragraph (1)(f) is fixed even if it is fixed simultaneously with its communication.

. . .

            21. (1) Subject to subsection (2), a broadcaster has a copyright in the communication signals that it broadcasts, consisting of the sole right to do the following in relation to the communication signal or any substantial part thereof:

(a) to fix it,

            (b) to reproduce any fixation of it that was made without the broadcaster’s consent,

(c) to authorize another broadcaster to retransmit it to the public simultaneously with its broadcast, and

(d) in the case of a television communication signal, to perform it in a place open to the public on payment of an entrance fee,

and to authorize any act described in paragraph (a), (b) or (d).

. . .

            31. (1) In this section,

“new media retransmitter” means a person whose retransmission is lawful under the Broadcasting Act only by reason of the Exemption Order for New Media Broadcasting Undertakings issued by the Canadian Radio-television and Telecommunications Commission as Appendix A to Public Notice CRTC 1999-197, as amended from time to time;

“retransmitter” means a person who performs a function comparable to that of a cable retransmission system, but does not include a new media retransmitter;

“signal” means a signal that carries a literary, dramatic, musical or artistic work and is transmitted for free reception by the public by a terrestrial radio or terrestrial television station.

            (2) It is not an infringement of copyright for a retransmitter to communicate to the public by telecommunication any literary, dramatic, musical or artistic work if

(a) the communication is a retransmission of a local or distant signal;

(b) the retransmission is lawful under the Broadcasting Act;

(c) the signal is retransmitted simultaneously and without alteration, except as otherwise required or permitted by or under the laws of Canada;

(d) in the case of the retransmission of a distant signal, the retransmitter has paid any royalties, and complied with any terms and conditions, fixed under this Act; and

(e) the retransmitter complies with the applicable conditions, if any, referred to in paragraph (3)(b).

            (3) The Governor in Council may make regulations

(a) defining “local signal” and “distant signal” for the purposes of subsection         (2); and

(b) prescribing conditions for the purposes of paragraph (2)(e), and specifying whether any such condition applies to all retransmitters or only to a class of retransmitter.

                    Appeal allowed with costs throughout, Deschamps, Abella, Cromwell and Karakatsanis JJ.dissenting.

                    Solicitors for the appellant Cogeco Cable Inc.:  McCarthy Tétrault, Toronto.

                    Solicitors for the appellants Rogers Communications Inc. and TELUS Communications Company:  Fasken Martineau DuMoulin, Ottawa.

                    Solicitors for the appellant Shaw Communications Inc.:  Davies Ward Phillips & Vineberg, Toronto.

                    Solicitors for the respondents Bell Media Inc. (formerly CTV Globemedia Inc.), Newfoundland Broadcasting Co. Ltd. and V Interactions Inc.:  Goodmans, Toronto.

                    Solicitors for the respondent Canwest Television Limited Partnership:  Paliare, Roland, Rosenberg, Rothstein, Toronto.

                    Solicitors for the intervener:  Canadian Radio‑television and Telecommunications Commission, Gatineau.