R. v. Nova Scotia Pharmaceutical Society [1992] 2 S.C.R. 606: Vagueness -- Conspiracy to prevent or lessen competition unduly -- Whether word "unduly" in s. 32(1)(c) of Combines Investigation Act so vague as to infringe principles of fundamental justice-- Whether mens rea required by s. 32(1)(c) of Combines Investigation Act inconsistent with principles of fundamental justice

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.

ON APPEAL FROM THE NOVA SCOTIA SUPREME COURT, APPEAL DIVISION

Constitutional law -- Charter of Rights -- Fundamental justice -- Vagueness -- Conspiracy to prevent or lessen competition unduly -- Whether word "unduly" in s. 32(1)(c) of Combines Investigation Act so vague as to infringe principles of fundamental justice -- Canadian Charter of Rights and Freedoms, s. 7 -- Combines Investigation Act, R.S.C. 1970, c. C-23, s. 32(1)(c), (1.1).

Constitutional law -- Charter of Rights -- Fundamental justice -- Mens rea -- Conspiracy to prevent or lessen competition unduly -- Whether mens rea required by s. 32(1)(c) of Combines Investigation Act inconsistent with principles of fundamental justice -- Canadian Charter of Rights and Freedoms, s. 7 -- Combines Investigation Act, R.S.C. 1970, c. C-23, s. 32(1)(c).

Appeal -- Supreme Court of Canada -- Jurisdiction -- Arguments on appeal -- Respondent seeking variation of Court of Appeal's reasons on mens rea issue -- No leave to appeal sought on this issue -- Issue arising from respondent's notice of intention -- Whether mens rea issue properly before Court -- Rules of the Supreme Court of Canada, SOR/ 83-74, Rule 29(1), (2).

Combines -- Conspiracy to prevent or lessen competition unduly -- Mens rea -- Whether Crown must prove that accused intended to restrict competition unduly -- Combines Investigation Act, R.S.C. 1970, c. C-23, s. 32(1)(c) -- Canadian Charter of Rights and Freedoms, s. 7.

Combines -- Conspiracy to prevent or lessen competition unduly -- Determination of "undueness" -- Distinction between questions of fact and questions of law -- Combines Investigation Act, R.S.C. 1970, c. C-23, s. 32(1)(c).

The appellants were charged with two counts of conspiracy to prevent or lessen competition unduly, contrary to s. 32(1)(c) of the Combines Investigation Act. Both counts related to the sale and offering for sale of prescription drugs and pharmacists' dispensing services prior to June 16, 1986. They moved for an order quashing the indictment, on the basis that ss. 32(1)(c), 32(1.1) and 32(1.3) of the Act violated ss. 7, 11(a) and 11(d) of the Canadian Charter of Rights and Freedoms and were therefore invalid. The arguments raised revolved essentially on the issues of vagueness and mens rea. The Nova Scotia Supreme Court, Trial Division granted the motion and quashed the indictment. The Appeal Division allowed the Crown's appeal. The main issues raised in this appeal were (1) whether s. 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 s. 32(1)(c) infringed s. 7 by reason of the mens rea required by the offence.

Held: The appeal should be dismissed. Section 32(1)(c) does not violate s. 7 of the Charter.

(1) Vagueness

Vagueness can be raised under s. 7 of the Charter, since it is a principle of fundamental justice that laws may not be too vague. It can also be raised under s. 1 of the Charter in limine, on the basis that an enactment is so vague as not to satisfy the requirement that a limitation on Charter rights be "prescribed by law". Vagueness is also relevant to the "minimal impairment" stage of the Oakes test. Vagueness, when raised under s. 7 or under s. 1 in limine, involves similar considerations and should be considered a single concept. Vagueness as it relates to the "minimal impairment" branch of s. 1 merges with the related concept of "overbreadth".

What is referred to as "overbreadth", whether it stems from the vagueness of a law or from another source, remains no more than an analytical tool to establish a violation of a Charter right. It is always established by comparing the ambit of the provision touching upon a protected right with such concepts as the objectives of the State, the principles of fundamental justice, the proportionality of punishment or the reasonableness of searches and seizures, to name a few. Overbreadth has no autonomous value under the Charter and references to such a doctrine are superfluous.

The "doctrine of vagueness" is founded on the rule of law, particularly on the principles of fair notice to citizens and limitation of enforcement discretion. Fair notice to the citizen comprises a formal aspect -- an acquaintance with the actual text of a statute -- and a substantive aspect -- an understanding that certain conduct is the subject of legal restrictions. The crux of the concern for limitation of enforcement discretion is that a law must not be so devoid of precision in its content that a conviction will automatically flow from the decision to prosecute. The threshold for finding a law vague is relatively high. The factors to be considered include (a) the need for flexibility and the interpretative role of the courts; (b) the impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate, and (c) the possibility that many varying judicial interpretations of a given disposition may exist and perhaps coexist.

The doctrine of vagueness can be summed up in one proposition: a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate -- that is, for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria. The term "legal debate" is not used to express a new standard or one departing from that previously outlined by this Court. It is rather intended to reflect and encompass the same standard and criteria of fair notice and limitation of enforcement discretion viewed in the fuller context of an analysis of the quality and limits of human knowledge and understanding in the operation of the law. The criterion of absence of legal debate relates well to the rule of law principles that form the backbone of our polity. Legal provisions by stating certain propositions outline permissible and impermissible areas, and they also provide some guidance to ascertain the boundaries of these areas. They provide a framework, a guide as to how one may behave, but certainty is only reached in instant cases, where law is actualized by a competent authority. By setting out the boundaries of permissible and non-permissible conduct, these norms give rise to legal debate. They bear substance, and they allow for a discussion as to their actualization. They therefore limit enforcement discretion by introducing boundaries, and they also sufficiently delineate an area of risk to allow for substantive notice to citizens. No higher requirement as to certainty can be imposed on law in our modern State. The modern State intervenes today in fields where some generality in the enactments is inevitable. The substance of these enactments must remain nonetheless intelligible. The standard of "absence of legal debate" applies to all enactments, irrespective of whether they are civil, criminal, administrative or other. Once the minimal general standard has been met, any further arguments as to the precision of the enactments should be considered at the "minimal impairment" stage of the s. 1 analysis.

Section 32(1)(c) of the Act and its companion interpretative provision s. 32(1.1) do not violate s. 7 of the Charter on grounds of vagueness. Section 32(1)(c) provides that "[e]very one who conspires, combines, agrees or arranges with another person . . . to prevent, or lessen, unduly, competition . . . is guilty of an indictable offence". This section embodies a general standard which represents an intelligible principle, one that carries meaning and that has conceptual force. While the word "unduly" does not have a precise technical meaning, it is a word of common usage which denotes a sense of seriousness. Considering further that s. 32(1)(c) is one of the oldest and most important parts of Canadian public policy in the economic field, and that it mandates a partial rule of reason inquiry into the seriousness of the competitive effects of the agreement, Parliament has sufficiently delineated the area of risk and the terms of debate to meet the constitutional standard. Moreover, s. 32(1)(c) is made even more precise when the content of the inquiry it mandates is considered. The rest of the Act and the case law have outlined a process of examination of market structure and behaviour of the parties to the agreement which eliminates any vagueness that might remain.

In light of the above, the indictment did not infringe s. 11(a) of the Charter.

(2) Mens Rea

The mens rea issue is properly before this Court. Upon filing a notice of intention, the respondent Crown could request a variation of the Court of Appeal judgment on this issue, as long as it ultimately sought to uphold the disposition of the case in the Court of Appeal. Even if the Crown had not filed a notice of intention, the Court would have retained under Rule 29(1) of the Supreme Court Rules complete discretion to treat the whole case as open. A respondent may advance any argument to sustain the judgment below, and he is not limited to the appellant's points of law. This case fell plainly within Rule 29(1), and Rule 29(2), dealing with cross-appeals, had no application.

The mens rea required by s. 32(1)(c) is not inconsistent with s. 7 of the Charter. While an element of fault must exist before punishment can be justified, a minimum fault requirement with respect to every criminal or regulatory offence satisfies the requirements of s. 7. That fault may be demonstrated by proof of intent, whether subjective or objective, or by proof of negligent conduct, depending on the nature of the offence. Here, the offence set out in s. 32(1)(c) requires the proof of two fault elements: one subjective, the other objective. To satisfy the subjective element of the offence, the Crown must prove that the accused had the intention to enter into the agreement and had knowledge of the terms of that agreement. To satisfy the objective element, the Crown must prove that on an objective view of the evidence adduced the accused intended to lessen competition unduly -- i.e., that the evidence, viewed by a reasonable business person, establishes that the accused was aware or ought to have been aware that the effect of the agreement entered into would be to prevent or lessen competition unduly. Section 32(1)(c) does not therefore violate s. 7 of the Charter.

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