SITE BLOCKING AND THE CHARTER

In Canada the constitution bears primality via section 52 which heralds supremacy.

In R. v. Therens, [1985] 1 S.C.R. 613 at 638,  the Supreme Court of Canada, speaking through Le Dain J. stated: 

[…] the Charter must be regarded, because of its constitutional character, as a new affirmation of rights and freedoms and of judicial power and responsibility in relation to their protection. This results from s. 52 of the Constitution Act, 1982, which removes any possible doubt or uncertainty as to the general effect which the Charter is to have by providing that it is part of the supreme law of Canada and that any law that is inconsistent with its provisions is to the extent of such inconsistency of no force and effect.

In Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at 148, Dickson J. emphasized the importance of s. 52(1): [

…] The Constitution of Canada, which includes the Canadian Charter of Rights and Freedoms, is the supreme law of Canada. Any law inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. Section 52(1) of the Constitution Act, 1982 so mandates.

Again in R. v. Big M Drug Mart, [1985] 1 S.C.R. 295 at 312, Dickson C.J.C. said: 

Section 24(1) sets out a remedy for individuals (whether real persons or artificial ones such as corporations) whose rights under the Charter have been infringed. It is not, however, the only recourse in the face of unconstitutional legislation. Where, as here, the challenge is based on the unconstitutionality of the legislation, recourse to s. 24 is unnecessary and the particular effect on the challenging party is irrelevant.

The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. 

If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. 

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be that an act of the legislature, repugnant to the constitution, is void.

Now the Charter right of Freedom of Expression has limited qualifications. Insulting the prime minister is fine, but asking somebody to throw a stink bomb would be wrong. Now turning to the idea of site blocking and allegations of monetary loss. So far courts have ruled in favor of the copyright trolls.

At present the Copyright Act has no provision for handling internet activity. It is more generally built around the tangible world. The act has not been modernized for years and there seems to be no material motivation.

In the face of the Charter, however, provisions have to be address with the primality in place. The Charter dominates all legislation federal and provincial and any law that is inconsistent is no force in law. So any ruling from a court that infringes the Charter is fair game for an application for a declaration that it is unconstitutional. This is the model that the Charter provides to strike down bad laws.

In BC, where I am located, the Supreme Court has the authority under law to seek declaration of the constitutional validity of any law or other court ruling. Anything that is in conflict with the Charter can be declared void to the extent that it is inconsistent.

Now returning to the matter of copyright trolls and blocking. Trolls cannot prove actual losses and the Charter right of Freedom of Expression applies to talkers and listeners which exceeds the desire for blocking. Now Security of Person does not apply to a corporation so this protects the Freedom of Expression from a second provision.

I am sure the Supreme Court of Canada will consider the Constitution in addition to case law. So far the fight is creating precedents which are studied by law firms across the nation.

THE MATTER AT HAND

The Court of Appeal has confirmed in Teksavvy Solutions Inc. v. Bell Media Inc., 2021 FCA 100, that the Federal Court has jurisdiction to make site-blocking orders requiring third-party internet service providers to block access to websites alleged to be providing copyright-infringing content.

  • While site-blocking orders may engage internet users’ freedom of expression Charter rights, the Court of Appeal concluded that Federal Court judges need not engage in a detailed Charter analysis before exercising their discretion to grant the order.
  • The proper test to be applied when determining whether to grant a site-blocking order is the RJR MacDonald test for a mandatory injunction: a strong prima facie case must be shown, instead of the usual low threshold that an applicant establish a “serious issues to be tried”.

A site-blocking order is an order requiring a third-party internet service provider (ISP), who is not itself accused of any wrongdoing, to block its customers’ access to certain websites. Prior to Bell Media Inc. v. GoldTV.Biz, 2019 FC 1432, no Canadian court had ever made such an order. However, orders imposing obligations on third parties in the context of litigation (e.g., Norwich orders, which can impose disclosure obligations on innocent third parties) are not unprecedented and have recently become common in copyright infringement lawsuits related to unauthorized downloading of movies.

REALITY

Los of old movies are available for free on Apple TV. Tubi is stuffed with lots of films and Plex even offers some channels not available with local cable TV. Some movies are not commercially successful so they try to earn a few pesos with ad based streaming services. Cable TV here is every expensive at $95 per month for the total TV package and few actually subscribe to it.

Thrift stores have vast numbers of compact discs and DVD movies, BD is also starting to find its way into thrift stores. Fleabay has lots of new and used BD discs but postage drives prices up. Prices recently have been $5 and up for BD movies. The LG BD player can play any disc from DVD up but I have not tried video CD yet.

I have to use Leawo to get around region locks. My BD player does not care about DVD regions but BD region locks mean some discs I own are unplayable. Leawo can make an MP4 from BD and the content is then playable from a USB stuck or fed to iTunes for use with Apple TV etc. The BD player has a front USB port to play content. 4K discs are not region locked so I can play them directly without needing to get around nonsensical region locks.

CAVEAT

This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, consult a barrister to provide such services. The local law society can refer a person to find a barrister if needed,

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