R. v. Nova Scotia Pharmaceutical Society
Encyclopedia
R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 is a leading Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

 decision on section 7
Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...

 of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...

 and the doctrine of vagueness. The Court held that laws can be struck-down as a violation of section 7 where they are so vague as to violate fundamental justice
Fundamental justice
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...

.

Background

A number of pharmacies were charged with conspiracy "to prevent or lessen competition" under section 32(1)(c) of the Combines Investigation Act
Combines Investigation Act
The Combines Investigation Act was a Canadian Act of Parliament, implemented in 1910, passed in 1923 by MacKenzie King, which regulated certain corporate business practices that were anti-competitive. It prohibited monopolies, misleading advertising, bid-rigging, price fixing, and other means of...

 for the sale of prescription drugs and dispensing services prior to June of 1986. They challenged the provision on the basis that it violated section 7 of the Charter on account of its vagueness.

At trial, the Supreme Court of Nova Scotia found in favour of the pharmaceutical companies and overturned the conviction. On appeal the court overturned the verdict and found in favour of the Crown.

The issue before the Supreme Court was:
  1. whether section 32(1)(c) of the Act infringed s. 7 of the Charter because of vagueness arising from the use of the word "unduly"; and
  2. whether section 32(1)(c) infringed section 7 by reason of the mens rea required by the offence.


The Court held that section 32(1)(c) of the Act was sufficiently clear and was not in violation of the Charter. Justice Gonthier wrote for a unanimous Court.

Reasoning of the court

Justice Gonthier observed that the doctrine of vagueness under section 7 was founded in the doctrine of the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...

. Specifically, "the principles of fair notice to citizens and limitation of enforcement discretion". A law will be in violation of section 7 for vagueness if "it so lacks in precision as not to give sufficient guidance for legal debate." (p. 643)

The requirement of "fair notice" means that there must be awareness of the law. The citizen must have an "understanding that certain conduct is the subject of legal restrictions." The "limitation of law enforcement discretion" is directed at the content of the law, which requires that a law "not be so devoid of precision in its content that a conviction will automatically flow from the decision to prosecute." (p. 636)

The term "legal debate" was intended to reflect and encompass the principles of vagueness in the "fuller context of an analysis of the quality and limits of human knowledge and understanding in the operation of the law." (p. 640) This requires that the law sets out "the boundaries of permissible and non-permissible conduct".

In all the threshold for vagueness is a high one. Gonthier gave a list of factors to consider when determining if a provision is vague:
  1. the need for flexibility and the role of courts in interpreting the law;
  2. the impossibility of absolute precision, a standard of intelligibility being preferable; and
  3. the possibility that a given provision may be susceptible to a number of interpretations which can co-exist.


On the facts, the impugned provision of the Act was found not to be vague. The Court examined the wording of the provision and considered the context of the Act in the area of commercial law, and found that "Parliament has sufficiently delineated the area of risk and the terms of debate to meet the constitutional standard."

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