On April 27, 2018, Kim Nguyen Dao (“Kim Dao”) arrived at Court wearing a suit, and left wearing shackles, further to being sentenced by the Ontario Superior Court of Justice to a four-month prison sentence effective immediately.

The Application was brought by DISH Network LLC & EchoStar Technologies LLC, and by NagraStar LLC, further to a number of serious breaches of a prohibitory Permanent Injunction rendered against, amongst others, Kim Dao, dated September 1, 2015 (the “Permanent Injunction”). On March 26, 2018, the Ontario Superior Court of Justice found beyond a reasonable doubt that Kim Dao had breached the Permanent Injunction by, amongst other things, (a) advertising Piracy Technology and illegal subscriptions; (b) selling a device which enabled access to encrypted satellite television channels for which DISH Network had exclusive distribution rights; (c) assisting third parties to operate the Piracy device sold; (d) his actions were wilful and deliberate and he was clearly aware that the Permanent Injunction prohibited him from distributing equipment that provided access to DISH Programming; and (e) he wilfully chose to evade the effect of the Permanent Injunction by continuing to offer for sale prohibited devices.

Kim Dao’s numerous breaches follow previous breaches of the same Permanent Injunction by his father, Binh Dao, who was previously found in contempt on October 21, 2016. It appears that Kim Dao has chosen to follow his father’s illegal footsteps, in a deliberate disregard of the law and the order of the Court.

Plaintiff’s counsel, Danielle Ferron of Langlois lawyers, argued that that i) Kim Dao’s contempt was very serious, wilful, deliberate and a challenge to the authority of the Court, ii) that there were no mitigating factors and iii) numerous aggravating factors. Furthermore, in the context of satellite piracy, in which there is an active piracy community that shares information about legal developments, both general and specific deterrence are particularly important.

At the sentencing hearing, the Court reviewed the substantial evidence filed by Plaintiffs (including the fact that Kim Dao had continued to engage in illegal piracy activities even after Contempt proceedings were launched and even after the Court found him in Contempt), as well as the very limited arguments raised by Kim Dao, which were found by the Court to be highly insufficient. The court concluded that there were no mitigating factors. Kim Dao’s alleged attempt to purge his contempt did not convince the Court, that in any event, the steps taken by him were insufficient and that even if believed, claims of good behaviour in the future could not purge past breaches. Furthermore, the Court did not find his apologies to be genuine or sincere and noted that an apology made only after a contempt finding raises serious doubts as to its sincerity and suggests that it is an apology of convenience.

The Court further referred to the fact that there were numerous aggravating factors, such as i) Kim Dao’s contempt was blatant and wilful; ii) his conduct is illegal under Canadian Law, namely subsections 9(1)(c) and 10(1)(b) of the Radiocommunication Act, as well as section 327(1) of the Canadian Criminal Code; iii) his failure to comply with multiple costs order and a damages award; iv) his breaches were of a final judgment; and v) his contempt caused serious prejudice to the Plaintiffs. The Court was also sensitive that its decision should not be the proverbial “slap on the wrist”, and that a fine would be insufficient and inappropriate. The order needed to be proportionate to the seriousness of the situation, as well as address the matter of general and specific deterrence.

If dealers in Piracy Technology believed that breaches of Orders of the Court will not be punished in a meaningful way, they are now proven otherwise.  The Court found that the proper sentence would include four months imprisonment, without parole or remission, and $15,000 in costs, over and above the $30,000 costs already awarded for the Contempt Motion.

The Plaintiffs DISH Network LLC & EchoStar Technologies LLC are satellite television broadcasters that provide encrypted subscription-based satellite television programming services to their customers in the United States, Puerto Rico, and the U.S. Virgin Islands. The services of DISH are not lawfully available in Canada. DISH electronically scrambles its satellite signals to prevent unauthorized viewing of DISH Programming. The Plaintiff NagraStar LLC  is the supplier of proprietary encryption technology that is used by DISH to restrict access to DISH Programming for use only by legitimate subscribers. This decision is just one other successful steps in their fight against television piracy.