Terence Corcoran, Globe and Mail November 28, 1997

The reign of terror being waged by Bell, Shaw and the federal government against Canadians who subscribe to U.S. satellite television services is gradually closing in on individual consumers. Already the satellite industry is becoming suffused with the language of political opression, with owners of U.S. dishes portrayed as equivalent to outlaws, gunrunners and illegal immigrants. Canadian satellite firms controlled by the telecom monopolies are offering "amnesty trade-ins" to U.S. dish owners who sheepishly come forward to confess their crime and surrender their lethal set-top boxes to the telephone and cable companies. Starchoice talks of
clean money for dirty dishes."

No wonder a Nova Scotia judge, in a decision this week against the federal government's campaign of seizure and prosecution, was prompted to observe that these efforts smack of political oppression. "Russia and the Eastern Bloc countries of Europe attempted to exclude both radio and television signals emanating from the West," said Mr. Justice Charles Haliburton "I understand that Cuba imposes serious penalties on citizens who attempt to receive radio and television signals from international sources. Such interference is clearly incompatible with freedom of speech and the freedoms which we have always taken for granted in this country."

That's not the half of it. two court decisions released this week, one by Judge Haliburon of the Nova Scotia Supreme Court and another by the Federal Court of Appeal in Toronto, have fashioned an absurd and bizarre legal in Canada to pirate U.S. services but illegal to pay for the same services.

Judge Haliburton's decision, despite his references to Russian and Cuban oppression, is no victory for Canadians who believe they have a right to receive and pay for U.S. satellite services. Indeed, while he scored a rhetorical point, he has actually further closed the circle that could, ultimately, shut down the legal U.S. satellite industry in Canada and legalize an illegitimate black market.

In the Nova scotia case, Judge Haliburton found that the RCMP had no lawful right to seize the property of satellite dish dealers. He ordered the RCMP to return satellite equipment worth $250,000 after finding that the police force had overstepped its authority and used illegal search warrants and procedures.

What turns the Nova Scotia case against the 300,000 Canadians who have bought U.S. dishes is the fact that it involved a dealer selling "black market" setups that allow buyers to avoid paying for the services. In the black market, dealers sell U.S. dishes to buyers who are given counterfeit decoding cards that are inserted into the equipment to receive signals from DirecTv, the U.S, company that provides the largest proportion of U.S. services to Canadians.

It is DirecTv, in fact, that is prompting the federal government and the RCMP to prosecute Canadian satellite dealers who are selling counterfeit decoding cards. These black market cards are illegal in the United States, but their legal status in Canada is debatable. Judge Haliburton essentially concluded that since DirecTv is not formally licensed in Canada, it cannot claim to be legally offering a service in Canada. Therefore, the "black market" cards are not illegal in Canada.

The bizarre element here is clear. Under the Nova Scotia decision, Canadians who use counterfeit cards purchased on the black market would be free from prosecution in Canada. The black market cards become legal in Canada. Canadians would be free to legally steal DirecTv Services. But under the other court decision this week, from the federal Court of Appeal, Canadians who in good faith pay would be breaking the law.

How perverse can Canadian law become? If this absurd state of affairs is allowed to prevail, Canadians seeking U.S. services will have no choice but to run to the black market. It will be legal, and there will be no monthly fee.

No matter how hard the Canadian startup firms and their monopoly parents try to spin these decisions in their favour, it is clear that Ottawa and the protectionist giants have created a policy and legal monster. Thanks to the federal government, the RCMP and the telecom monopolists, Canadian satellite law now offers Canadians the following option: Break a law and get free TV.
The next Canadian legal option: An injunction that sets up a Soviet style border patrol to block U.S. satellite equipment at the border.