You'll recall that last month, I was still awaiting the decision of the Queen's Bench Judge, as to whether she would accept jurisdiction of the case. After waiting for several weeks, we were somewhat optimistic that she would in fact take jurisdiction. As it turns out, within hours of press time, the decision came in. She did not accept jurisdiction, due mostly to the fact that we were contending the legality of the warrantless search.
It seems rather perverse and absurd that since the RCMP decided NOT to get any sort of judicial authorization before arbitrarily seizing my legally imported goods, that I have one less remedy at my disposal. Had there been a search warrant, I could at least have an opportunity to quash that warrant. I think it is also notable that the very same officer who seized my goods without a warrant, Cpl. David Struck, was also involved in the memorable "Battery Card" raids in the summer of 1996. Was it the fact that all of his previous warrants pertaining to the investigation of Satellite Television were struck down and declared illegal, that precipitated this officer to now decide he does not need a warrant? The following is some interesting text regarding obtaining of such warrants (Martin's Criminal Code 1993) :
" Since the purpose of the requirement of prior authorization is to provide an opportunity, before the event, for the conflicting interests of the state and the individual to be assessed, so that the individuals right of privacy is will be breached only where the appropriate standard has been met in an entirely neutral and impartial manner and, while this person need not be a judge, he must at a minimum be capable of acting judically. "
It is no secret that they have done everything in their power to see that this does not get before a Judge. We are however, proceeding to trial in a few short weeks. As well, since the goods were seized without a warrant, the Crown has an onus to prove why this was necessary. Again , referring to Martins Criminal Code 1993:
"The purpose in this section of protecting individuals from unjustified state intrustions upon their privacy requires a means of preventing unjustifed searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. This can only be accomplished by a system of prior authorization, not one of subsequent validation. Accordingly, where it is feasible to obtain prior authorization such authorization is a pre-condition for a valid search and seizure. Accordingly, there is a presumption of unreasonableness where the search has taken place without a warrant which the party seeking to justify the warrantless search must rebut."
The Crown is also attempting to prejudice the trial with much irrelevant and highly inflammatory evidence. The prosecutor has indicated that he will be calling a total or 8 or 9 witnesses. Of these, 3 will be actually have any direct involvement in the case: the officer who seized the goods, the customs officer who cleared my shipment, and the undercover RCMP officer who attended the store 5 weeks after the seizure to purchase a system. The other 5 or 6 witnesses he wishes to call are supposedly for "industry background". What he hopes to do is have individuals like Mr Luther Haave, a prime example of a self-righteous zealot, claim to have suffered tragic losses as a result of the availability of DSS and other systems in Canada. What makes this irrelevent, in my opinion, is that the Radiocommunications Act specifies decoding a "signal", it does not make reference to portions or content of the signal. None of the equipment which was seized was capable of picking up Mr Haave's ExpressVu signal, or any other signal from a Canadian distributor. There may be some overlap in portions of the content, but I would suggest that is irrelevant, since the Act specifies signal, not content.
What we hope to do is keep the trial issues in the area of our constitutional rights of freedom of communication (including reception of foreign signals), and other important fundamental issues, rather than the speculation of what, if any, impact, the availability of these systems may have on "lawful distributors" in Canada. There are many important issues we plan on raising, which for strategic reasons I cannot discuss at this time! I will have to go into these next month, once they have been laid out in court. We plan on putting on the most compelling and airtight case we possibly can. We have pulled out all the stops, and are sparing no expense. As you recall, I have already obtained a very favourable interpretation of the Radiocommunications Act, from a Manitoba Queens Bench Judge, in a previous appeal. In that matter I acted as my own counsel, from trial through appeal. Let's hope that adding a few skilled attorneys will have a favourable outcome from trial!
In card news, the freeware continues to flow, and tensions grow as speculation rises on the next ECM. Much of the freeware which is available is very poorly written, and highly susceptible to all forms of countermeasures. Most of the "pay"ware, that is where you are paying someone for a "real" programmed card, has protection against many possible ECMs, through elaborate code modifications which reject certain commands. As well, those modifications make it more difficult for other people to extract the contents of the card, and examine the code. It also prevents the code from circulating on the internet.
Of course, there are always exceptions, and very recently a well known "pay" product was circulated. This is almost a guarantee for bad news, the only question is when. The fact that the software was that easy to extract doesn't help either! This means it is also easily ECMable. It certainly doesn't help any of the honest people who paid the legitimate supplier for "private" software, only to have it appear on the internet for all who want, including of course those who develop ECMs. It also allows the scam artists to claim to have "original" product and ask a higher price. This also happens many times with freeware. It is very difficult for an end user to determine what he's really getting, and of course by the time it gets ECMed, his money is long gone! As the freeware circulates, more and more here-today gone tomorrow type operations pop up out of nowhere. And the end result is dissatisfied customers who think the whole industry is a scam.
Meanwhile, on the retail scene the availability of the freeware seems to have little effect on the retail market. Things remain fairly active for both cards and systems, and I have good hopes for a productive fall. I think if we can win the trial, everyone will have a great season.
Dean