In R. v. Woodward, the defendant challenged both his conviction and length of sentence in relation to the offence of luring by means of a computer system under (as it was then) s.172.1(1) of the Criminal Code. Writing for the court, Moldaver J.A., dismissed the appeal on both grounds and provided guidance as to the meaning of “computer system” under s.342.1(2) of the Code and the sentencing of offenders who engaged in the luring of children over the internet.
The appellant argued that text messaging via cell phone did not fall within the actus reus required under s. 172.1(1). Under that section a person must communicate with another by means of a computer system within the meaning of s. 342.1(2) of the Code. The court rejected the appellant’s argument, holding that text messaging required a “logic” and “control” function preformed by telephone networks to deliver messages between phones. This process amounted to a computer system. Supporting this finding, the court pointed out that Parliament has made two attempts to change the highly technical definition of computer system in the Code.
The court also rejected the appellant’s argument that his sentence was in excess of the usual range of those convicted of similar offences. Moldaver J.A., noted that the decision of Rosenburg J.A. in R. v. Jarvis (2006), 211 C.C.C. (3d) 20 (C.A.) has been incorrectly interpreted as setting the range of sentencing of 12 months to 2 years for offenders who engage in online luring. Instead, the court determined that internet luring was a pervasive social problem warranting stiffer sentences in the range of 3 to 5 years in order to meet the goals of deterrence, denunciation and separation of society. Moldaver J.A. then held that when considering a sentence in this type of case, “ the focus of the sentencing hearing should be on the harm caused to the child by the offender’s conduct and the life-altering consequences that can and often do flow from it.”
September 26, 2011
Link to Decision
Heather Palin
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Showing posts with label Media. Show all posts
Showing posts with label Media. Show all posts
Monday, September 26, 2011
Tuesday, July 5, 2011
Humphrey Estate v. Canada (Superintendent of Bankruptcy), 2011 ABCA 210
In Humphrey Estate v. Canada (Superintendent of Bankruptcy), the court upheld the trial judge's ruling that license fees charged on a file-by-file basis for use of software program can be claimed by a trustee in bankruptcy as disbursement. The issue arose over Alger & Associates' use of Ascend software provided by Promeric Technologies Inc.
Under the Bankruptcy and Insolvency General Rules and Directives, a trustee's disbursements do not include the indirect costs of the trustee's facilities such as computer software charges. Berger, J.A. agreed with the trial judge's reasoning that Ascend software is not part of the "infrastructure" of a trustee's office since the license fee charged is specific to a particular estate. Thus, the fees are not contemplated by the prohibitions in the Rules and Directives as those extend to more general software such as word processing and billing. Berger, J.A. added that the license fees here are analogous to postage and courier charges, which are direct costs incurred in the administration of a particular estate.
Berger, J.A. held for the court that the software license fees could be claimed as disbursement and dismissed the appeal.
July 5, 2011
Link to Decision
Adrienne Ho
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Under the Bankruptcy and Insolvency General Rules and Directives, a trustee's disbursements do not include the indirect costs of the trustee's facilities such as computer software charges. Berger, J.A. agreed with the trial judge's reasoning that Ascend software is not part of the "infrastructure" of a trustee's office since the license fee charged is specific to a particular estate. Thus, the fees are not contemplated by the prohibitions in the Rules and Directives as those extend to more general software such as word processing and billing. Berger, J.A. added that the license fees here are analogous to postage and courier charges, which are direct costs incurred in the administration of a particular estate.
Berger, J.A. held for the court that the software license fees could be claimed as disbursement and dismissed the appeal.
July 5, 2011
Link to Decision
Adrienne Ho
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Wednesday, June 8, 2011
Globalive Wireless Management Corp. v. Public Mobile Inc., 2011 FCA 194
In this case, the Federal Court of Appeal considered the scope of the Governor in Council's (GIC) jurisdiction in the context of reviewing decisions of the Canadian Radio-television and Telecommunications Commission (CRTC). In obiter dicta, Sexton J.A. wrote that policy considerations may inform the Governor in Council's application of the control in fact test pursuant to s. 16(3) of the Telecommunications Act, S.C. 1993, chapter 38. He assumed, without deciding, that the standard of review on this issue would be correctness, but found that the decision under review did not incorporate policy considerations until the question of control had already been resolved.
The initial CRTC decision applied the Canadian Airlines test and concluded that the appellant Globalive was controlled by a non-Canadian and therefore ineligible to operate as a telecommunications common carrier in Canada. The GIC applied the same test in reviewing that decision, but disagreed that the appellant Globalive was controlled by a non-Canadian.
Justice Sexton held that the GIC decision was reasonable and did not incorporate policy aspects until it considered whether or not to vary the decision of the CRTC. However, Justice Sexton added that even if the GIC had considered appropriate policy concerns when applying the control in fact test, it would not constitute a reviewable error. He noted that rather than giving courts the exclusive right to review CRTC decisions, "the fact Parliament chose to grant the Governor in ouncil the right to review the CRTC’s application of the control in fact test implies the decision was intended to incorporate policy concerns when appropriate." Justice Sexton therefore found that even if the GIC had incorporated policy considerations into its decision, it would have been not only reasonable, but correct to do so.
June 8, 2011
Link to Decision
Marc Gibson
The initial CRTC decision applied the Canadian Airlines test and concluded that the appellant Globalive was controlled by a non-Canadian and therefore ineligible to operate as a telecommunications common carrier in Canada. The GIC applied the same test in reviewing that decision, but disagreed that the appellant Globalive was controlled by a non-Canadian.
Justice Sexton held that the GIC decision was reasonable and did not incorporate policy aspects until it considered whether or not to vary the decision of the CRTC. However, Justice Sexton added that even if the GIC had considered appropriate policy concerns when applying the control in fact test, it would not constitute a reviewable error. He noted that rather than giving courts the exclusive right to review CRTC decisions, "the fact Parliament chose to grant the Governor in ouncil the right to review the CRTC’s application of the control in fact test implies the decision was intended to incorporate policy concerns when appropriate." Justice Sexton therefore found that even if the GIC had incorporated policy considerations into its decision, it would have been not only reasonable, but correct to do so.
June 8, 2011
Link to Decision
Marc Gibson
Monday, February 28, 2011
Canadian Radio-television and Telecommunications Commission's Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168 (Re), 2011 FCA 64
The Federal Court of Appeal held that The Canadian Radio-Television and Telecommunications Commission (the “Commission”) has the statutory power to establish a “value for signal” regime in Canada. Under this regime, local television stations will have the option to privately negotiate with cable television providers (referred to as “broadcast distribution undertakings” or “BDUs”) for the right to distribute the programming broadcast by those local television stations.
Sharlow J.A. first held that both the Broadcasting Act and the Copyright Act are part of “Canadian cultural policy.” Section 21(1) of the Copyright Act gives the local television stations a copyright in the signal it broadcasts. However, due to the operation of s.31(2) of the Copyright Act, retransmission does not infringe s.21(1) so long as the five conditions set out in ss.31(2)(a) - (e) are met. Importantly, s.31(2)(b) requires that the retransmission be lawful under the Broadcasting Act. Accordingly, Sharlow J.A. held that by making the BDUs’ s.31(2) retransmission rights subject to s.31(2)(b), “Parliament has ranked the objectives of Canada’s broadcasting policy ahead of those statutory retransmission rights.” As such, the Commission has the power to adopt a regulation or a licensing condition that would oblige a BDU to pay a local television station for retransmission rights. It is irrelevant that this is characterized as a royalty. Further, the rejection of past amendment proposals that would grant television stations a statutory right to a retransmission fee under the Copyright Act are also irrelevant. Finally, Sharlow J.A. was not persuaded that the proposed regime would undermine Canada’s position in relation to recent 2001 World Intellectual Property Committee on Copyright and Related Rights proceedings.
In Nadon J.A.’s dissenting opinion, the creation of a value for signal regime would be ultra vires the Commission because it would conflict with s.31(2)(d) of the Copyright Act, which clearly expresses Parliament’s intention that royalties be paid for the retransmission of distant, not local, signals. From the fact that s.31(2)(d) imposes the payment of a royalty on distant signals, but not local signals, Nadon J.A. inferred that Parliament intended local and distant signals to be treated differently. One aspect of this is that royalties can only be imposed on those retransmitting distant signals. This is a “clear limit” on the Commission’s power to impose conditions under the Broadcasting Act. Nadon J.A. disagreed with Sharlow J.A. insofar as s.31(2)(b) shows that Parliament has ranked Canada’s broadcasting policy ahead of its copyright policy. In his view, s.31(2)(b) and (d) apply with equal force. Sharlow J.A.’s interpretation is erroneous as in effect it holds that a royalty cannot be charged for the retransmission of local signals, unless the Commission decides otherwise. Nadon J.A. also disagreed with Sharlow J.A. insofar as she holds that s.31(2)(b) is an expression of broadcasting policy, whereas s. 31(2)(d) is an expression of copyright policy. In his view the value for signal regime is functionally analogous to the regulation of tariffs under s.31(2)(d) and accordingly is ultra vires. The Commission cannot create a tariff that, “Parliament has, in effect, forbidden.”
February 28, 2011
Link to Decision
Steve Holinski
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Sharlow J.A. first held that both the Broadcasting Act and the Copyright Act are part of “Canadian cultural policy.” Section 21(1) of the Copyright Act gives the local television stations a copyright in the signal it broadcasts. However, due to the operation of s.31(2) of the Copyright Act, retransmission does not infringe s.21(1) so long as the five conditions set out in ss.31(2)(a) - (e) are met. Importantly, s.31(2)(b) requires that the retransmission be lawful under the Broadcasting Act. Accordingly, Sharlow J.A. held that by making the BDUs’ s.31(2) retransmission rights subject to s.31(2)(b), “Parliament has ranked the objectives of Canada’s broadcasting policy ahead of those statutory retransmission rights.” As such, the Commission has the power to adopt a regulation or a licensing condition that would oblige a BDU to pay a local television station for retransmission rights. It is irrelevant that this is characterized as a royalty. Further, the rejection of past amendment proposals that would grant television stations a statutory right to a retransmission fee under the Copyright Act are also irrelevant. Finally, Sharlow J.A. was not persuaded that the proposed regime would undermine Canada’s position in relation to recent 2001 World Intellectual Property Committee on Copyright and Related Rights proceedings.
In Nadon J.A.’s dissenting opinion, the creation of a value for signal regime would be ultra vires the Commission because it would conflict with s.31(2)(d) of the Copyright Act, which clearly expresses Parliament’s intention that royalties be paid for the retransmission of distant, not local, signals. From the fact that s.31(2)(d) imposes the payment of a royalty on distant signals, but not local signals, Nadon J.A. inferred that Parliament intended local and distant signals to be treated differently. One aspect of this is that royalties can only be imposed on those retransmitting distant signals. This is a “clear limit” on the Commission’s power to impose conditions under the Broadcasting Act. Nadon J.A. disagreed with Sharlow J.A. insofar as s.31(2)(b) shows that Parliament has ranked Canada’s broadcasting policy ahead of its copyright policy. In his view, s.31(2)(b) and (d) apply with equal force. Sharlow J.A.’s interpretation is erroneous as in effect it holds that a royalty cannot be charged for the retransmission of local signals, unless the Commission decides otherwise. Nadon J.A. also disagreed with Sharlow J.A. insofar as she holds that s.31(2)(b) is an expression of broadcasting policy, whereas s. 31(2)(d) is an expression of copyright policy. In his view the value for signal regime is functionally analogous to the regulation of tariffs under s.31(2)(d) and accordingly is ultra vires. The Commission cannot create a tariff that, “Parliament has, in effect, forbidden.”
February 28, 2011
Link to Decision
Steve Holinski
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