The Court holds:
[3] We agree with Noël J.A., for the reasons he gave, that the terms "broadcasting" and "broadcasting undertaking", interpreted in the context of the language and purposes of the Broadcasting Act, are not meant to capture entities which merely provide the mode of transmission.
[4] Section 2 of the Broadcasting Act defines "broadcasting" as "any transmission of programs … by radio waves or other means of telecommunication for reception by the public". The Act makes it clear that "broadcasting undertakings" are assumed to have some measure of control over programming. Section 2(3) states that the Act "shall be construed and applied in a manner that is consistent with the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings". Further, the policy objectives listed under s. 3(1) of the Act focus on content, such as the cultural enrichment of Canada, the promotion of Canadian content, establishing a high standard for original programming, and ensuring that programming is diverse.
[5] An ISP does not engage with these policy objectives when it is merely providing the mode of transmission. ISPs provide Internet access to end-users. When providing access to the Internet, which is the only function of ISPs placed in issue by the reference question, they take no part in the selection, origination, or packaging of content. We agree with Noël J.A. that the term "broadcasting undertaking" does not contemplate an entity with no role to play in contributing to the Broadcasting Act's policy objectives.
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