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