Indexed as: R. v. Nova Scotia Pharmaceutical Society Nova Scotia Pharmaceutical Society, Pharmacy Association of Nova Scotia, Lawtons Drug Stores Limited, William H. Richardson, Empire Drugstores Limited, Woodlawn Pharmacy Limited, Nolan Pharmacy Limited, Christopher D.A. Nolan, Blackburn Holdings Limited, William G. Wilson, Woodside Pharmacy Limited and Frank Forbes, appellants; v. Her Majesty The Queen, respondent, and The Attorney General for Ontario and the Attorney General for Alberta, interveners, and The Association quййbййcoise des pharmaciens propriййtaires, Cumberland Drugs (Merivale) Ltd., Kane's Super Drugmart Corp. Ltd., Les Entreprises Norpharm Inc., Escompte Chez Lafortune Inc., Famili-Prix Inc., Le Groupe Jean Coutu (P.J.C.) Inc., Groupe Pharmaceutique Focus Inc., Les Magasins Koffler de l'Est Inc., McMahon Essaim Inc., Super Escompte Brouillet Inc., B. Mayrand Inc., Superpharm (Montrййal) Ltййe, Uniprix Inc., Pierre Bossйй, Franззois-Jean Coutu, Claude Gagnon, Guy Lanoue, Michel Lesieur, Guy-Marie Papillon and Jean-Guy Prud'Homme, interveners. [1992] 2 S.C.R. 606 [1992] S.C.J. No. 67 File No.: 22473. Supreme Court of Canada 1991: December 4 / 1992: July 9. Present: Lamer C.J. and La Forest, L'Heureux-Dubйй, Sopinka, Gonthier, Cory and Iacobucci JJ. ON APPEAL FROM THE NOVA SCOTIA SUPREME COURT, APPEAL DIVISION (124 paras.)

[page607]

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 [page608] 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 [page609] 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 [page610] 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.

[page611]

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.

Cases Cited

Applied: R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; considered: Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Oakes, [1986] 1 S.C.R. 103; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; R. v. Butler, [1992] 1 S.C.R. 452; R. v. Morgentaler, [1988] 1 S.C.R. 30; referred to: Container Materials Ltd. v. The King, [1942] S.C.R. 147; R. v. Vaillancourt, [1987] 2 S.C.R. 636; Howard Smith Paper Mills Ltd. v. The Queen, [1957] S.C.R. 403; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Knox Contracting Ltd. v. Canada, [1990] 2 S.C.R. 338; R. v. Hess, [1990] 2 S.C.R. 906; Atlantic Sugar Refineries Co. v. Attorney General of Canada, [1980] 2 S.C.R. 644; Aetna Insurance Co. v. The Queen, [1978] 1 S.C.R. 731; Perka v. The Queen, [1984] 2 S.C.R. 232; Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982); Broadrick v. Oklahoma, 413 U.S. 601 (1973); R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Goltz, [1991] 3 S.C.R. 485; R. v. Zundel (1987), 58 O.R. (2d) 129; Maynard v. Cartwright, [page612] 486 U.S. 356 (1988); Grayned v. City of Rockford, 408 U.S. 104 (1972); R. v. MacDougall, [1982] 2 S.C.R. 605; Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Kolender v. Lawson, 461 U.S. 352 (1983); Smith v. Goguen, 415 U.S. 566 (1974); Eur. Court H. R., Sunday Times case, judgment of 26 April 1979, Series A No. 30; Eur. Court H. R., Malone case, judgment of 2 August 1984, Series A No. 82; Eur. Court H. R., Kruslin case, judgment of 24 April 1990, Series A No. 176-A; Eur. Court H. R., Huvig case, judgment of 24 April 1990, Series A, No. 176-B; Eur. Court H. R., case of Silver and others, judgment of 25 March 1983, Series A No. 61; Eur. Court H. R., Barthold case, judgment of 25 March 1985, Series A No. 90; Eur. Court H. R., case of Mььller and others, judgment of 24 May 1988, Series A No. 133; Eur. Court H. R., Leander case, judgment of 26 March 1987, Series A No. 116; R. v. Wigglesworth, [1987] 2 S.C.R. 541; R. v. Shubley, [1990] 1 S.C.R. 3; Weidman v. Shragge (1912), 46 S.C.R. 1; Stinson-Reeb Builders Supply Co. v. The King, [1929] S.C.R. 276; R. v. Elliott (1905), 9 C.C.C. 505; R. v. J. J. Beamish Construction Co. (1967), 65 D.L.R. (2d) 260; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; R. v. J. W. Mills & Son Ltd., [1968] 2 Ex. C.R. 275; R. v. Canadian Coat and Apron Supply Ltd., [1967] 2 Ex. C.R. 53; R. v. Anthes Business Forms Ltd. (1975), 26 C.C.C. (2d) 349; R. v. Canadian General Electric Co. (1976), 34 C.C.C. (2d) 489; Association quййbййcoise des pharmaciens propriййtaires v. Canada (Procureur gййnййral), [1991] R.J.Q. 205; R. v. Metropolitan Toronto Pharmacists' Association (1984), 3 C.P.R. (3d) 233; R. v. Abitibi Power & Paper Co. (1960), 131 C.C.C. 201; NCAA v. Board of Regents of the University of Oklahoma, 468 U.S. 85 (1984); Federal Trade Commission v. Indiana Federation of Dentists, 476 U.S. 447 (1986); C.J.E.C., Vццlk v. ЙЙtablissements J. Vervaecke S.p.r.l., Case 5/69, [1969] E.C.R. 295; C.J.E.C., S.A. Cadillon v. Firma Hццss Maschinenbau K.G., Case 1/71, [1971] C.J.E.C. Rep. 351; R. v. McGavin Bakeries Ltd. (1951), 3 W.W.R. 289; R. v. Northern Electric Co., [1955] 3 D.L.R. 449; Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513.

Statutes and Regulations Cited

1984 Merger Guidelines, 49 Fed. Reg. 26823.Act for the Prevention and Suppression of Combinations formed in restraint of Trade, S.C. 1889, c. 41.Canadian Charter of Rights and Freedoms, ss. 1, 2, 7, 8, 11(a), (d), (h).Civil Code of Lower Canada, art. 1053.Combines Investigation Act, R.S.C. 1970, c. C-23 [am. 1974-75-76, c. 76, s. 14], ss. 30(2) [rep. & sub. [page613] 1986, c. 26, s. 28], 32(1)(c), (1.1), (1.3) [ad. idem, s. 30(3)], (2), (3), (6), 32.01 [ad. idem, s. 31], 51(7) [ad. idem, s. 47], 70 [idem].Commission notice of 3 September 1986 on agreements of minor importance which do not fall under Article 85(1) of the Treaty establishing the European Economic Community, O.J.E.C., 12 September 1986, No. C 231/2.Commission Regulation (EEC) No. 1983/83 of 22 June 1983 on the application of Article 85(3) of the Treaty to categories of exclusive distribution agreements, O.J.E.C., 30 June 1983, No. L 173/1, arts. 1, 2.Competition Act, R.S.C., 1985, c. C-34 [am. c. 19 (2nd Supp.), s. 19], ss. 34(2) [rep. & subs. idem, s. 28], 45(1)(c), (2), (2.2) [ad. idem, s. 30(3)], 45.1 [ad. idem, s. 31], 79(7) [idem, s. 45], 98 [idem].Constitution of the United States, First Amendment, Fifth Amendment, Eighth Amendment, Fourteenth Amendment.Criminal Code, R.S.C., 1985, c. C-46, ss. 19, 219, 222-240.European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, Arts. 8(2), 9(2), 10(2), 11(2).Protocol No. 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those included in the Convention and in the first Protocol thereto, Europ. T.S. No. 46, Art. 2(3).Rules of the Supreme Court of Canada, SOR/83-74, r. 29(1) [rep. & subs. SOR/88-247, s. 10], (2).Sherman Act, c. 647, 26 Stat. 209 (1890), s. 1 (codified as amended 15 U.S.C. para. 1-7 (1982)).Treaty establishing the European Economic Community, Art. 85.

Authors Cited

Amselek, Paul. "La teneur indййcise du droit" (1991), 107 Rev. dr. publ. 1199.Areeda, Phillip E. Antitrust Law: An Analysis of Antitrust Principles and Their Application, vol. 7. Boston: Little, Brown & Co., 1987.Areeda, Phillip E. and Herbert Hovenkamp. Antitrust Law:

An Analysis of Antitrust Principles and Their Application (1990 Supplement). Boston: Little, Brown & Co., 1990.

[page614]

Baudouin, Jean-Louis. Les obligations, 3rd ed. Cowansville, Quйй.: ЙЙditions Yvon Blais Inc., 1989.Blaau, Loammi C. "The Rechtsstaat Idea Compared with the Rule of Law as a Paradigm for Protecting Rights" (1990), 107 S. Afr. L.J. 76.Carrйй de Malberg, R. Contribution аа la thййorie gййnййrale de l'ЙЙtat, t. 1. Paris: Sirey, 1920.Chevallier, Jacques. "L'ЙЙtat de droit" (1988), 104 Rev. dr. publ. 313.Chitty on Contracts: General Principles, 25th ed. London: Sweet & Maxwell, 1983.Colvin, Eric. "Criminal Law and The Rule of Law". In Patrick Fitzgerald, ed., Crime, Justice & Codification: Essays in commemoration of Jacques Fortin. Toronto: Carswell, 1986, 125.Dunlop, Bruce, David McQueen and Michael Trebilcock. Canadian Competition Policy: A Legal and Economic Analysis. Toronto: Canada Law Book Inc., 1987.Henry, Jean-Pierre. "Vers la fin de l'ЙЙtat de droit ?" (1977), 93 Rev. dr. publ. 1207.Jeffries, Jr., John Calvin. "Legality, Vagueness, and the Construction of Penal Statutes" (1985), 71 Va. L. Rev. 189.Neumann, Franz. The Rule of Law: Political Theory and the Legal System in Modern Society. Leamington Spa, Warwirckshire: Berg Publishers Ltd., 1986.Rogerson, Carol. "The Judicial Search for Appropriate Remedies Under the Charter: The Examples of Overbreadth and Vagueness". In Robert J. Sharpe, ed., Charter Litigation. Toronto: Butterworths, 1987, 233.Stanbury, W.T. Legislation to Control Agreements in Restraint of Trade in Canada: Review of the Historical Record and Proposals for Reform. National Conference on the Centenary of Competition Law and Policy in Canada, October 1989.Stanbury, W.T., and G.B. Reschenthaler. "Reforming Canadian Competition Policy: Once More unto the Breach" (1981), 5 Can. Bus. L.J. 381.Tribe, Laurence H. American Constitutional Law, 2nd ed. Mineola, N.Y.: Foundation Press, Inc., 1988.

APPEAL from a judgment of the Nova Scotia Supreme Court, Appeal Division (1991), 102 N.S.R. (2d) 222, 279 A.P.R. 222, 80 D.L.R. (4th) 206, 64 C.C.C. (3d) 129, 36 C.P.R. (3d) 173, 7 C.R.R. (2d) 352, setting aside a judgment of the Trial Division (1990), 98 N.S.R. (2d) 296, 263 A.P.R. 296, 73 D.L.R. (4th) 500, 59 C.C.C. (3d) 30, 32 C.P.R. (3d) 259, allowing the appellants' motion to quash the indictment. Appeal dismissed.

[page615]

	Joel Fichaud, H.E. Wrathall, Q.C., and Catherine Walker, for the appellants.Michael R. Dambrot, Q.C., Calvin S. Goldman, Q.C., and John S. Tyhurst, for the respondent.M. Philip Tunley and David B. Butt, for the intervener, the Attorney General for Ontario.Bart Rosborough, for the intervener, the Attorney General for Alberta.Yves Bййriault and Madeleine Renaud, for the interveners, the Association quййbййcoise des pharmaciens propriййtaires et al.
	[Quicklaw note: Please see complete list of solicitors appended at the end of the judgment.]

The judgment of the Court was delivered by

GONTHIER J.:——

I. Facts and Proceedings

1 The twelve appellants were indicted on May 31, 1990, with two counts of conspiracy to prevent or lessen competition unduly, contrary to s. 32(1)(c) of the Combines Investigation Act, R.S.C. 1970, c. C-23. Both counts related to the sale and offering for sale of prescription drugs and pharmacists' dispensing services between January 1, 1974 and June 16, 1986, for the first, and between July 1, 1976 and June 16, 1986, for the second. The trial was set to begin in October of 1990.

2 On August 21, 1990, the appellants made a motion for an order to quash 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. On September 5, 1990, Roscoe J. of the Nova Scotia Supreme Court, Trial Division, allowed the motion and quashed the indictment: (1990), 98 N.S.R. (2d) 296, 263 A.P.R. 296, 73 D.L.R. (4th) 500, 59 C.C.C. (3d) 30, 32 C.P.R. (3d) 259. The respondent [page616] appealed to the Nova Scotia Supreme Court, Appeal Division. On April 24, 1991, a unanimous bench (Clarke C.J.N.S., Jones and Hallett JJ.A.) allowed the appeal: (1991), 102 N.S.R. (2d) 222, 279 A.P.R. 222, 80 D.L.R. (4th) 206, 64 C.C.C. (3d) 129, 36 C.P.R. (3d) 173, 7 C.R.R. (2d) 352. A notice of appeal was filed in this Court on May 22, 1991.

II. Relevant Statutory Provisions

3 Combines Investigation Act

32. (1) Every one who conspires, combines, agrees or arranges with another person

...

(c)

to prevent, or lessen, unduly, competition in the production, manufacture, purchase, barter, sale, storage, rental, transportation or supply of a product, or in the price of insurance upon persons or property,

...

is guilty of an indictable offence and is liable to imprisonment for five years or a fine of one million dollars or to both.

The Act was amended in 1976 by S.C. 1974-75-76, c. 76, also known as "Stage I" of competition law reform. Section 32(1.1) was then added:

(1.1) For greater certainty, in establishing that a conspiracy, combination, agreement or arrangement is in violation of subsection (1), it shall not be necessary to prove that the conspiracy, combination, agreement or arrangement, if carried into effect, would or would be likely to eliminate, completely or virtually, competition in the market to which it relates or that it was the object of any or all of the parties thereto to eliminate, completely or virtually, competition in that market.

[page617]

In 1986, in the course of "Stage II" of the reform, S.C. 1986, c. 26, further added s. 32(1.3) to the Act (renamed the Competition Act):

(1.3) For greater certainty, in establishing that a conspiracy, combination, agreement or arrangement is in contravention of subsection (1), it is necessary to prove that the parties thereto intended to and did enter into the conspiracy, combination, agreement or arrangement, but it is not necessary to prove that the parties intended that the conspiracy, combination, agreement or arrangement have an effect set out in subsection (1).

These sections are now respectively known as ss. 45(1)(c), (2) and (2.2) of the Competition Act, R.S.C., 1985, c. C-34.

III. Judgments Below

Nova Scotia Supreme Court, Trial Division

4 On the mens rea issue, Roscoe J. reviewed the case law and concluded that s. 32(1)(c) of the Act requires the Crown to prove only that the accused intended to enter into an agreement, the effect of which, if carried out, would be to lessen competition, but not that it also intended to prevent or lessen competition unduly. Relying on R. v. Vaillancourt, [1987] 2 S.C.R. 636, she found that s. 32(1)(c) creates a truly criminal offence, and that the absence of a subjective mens rea requirement with respect to the lessening of competition leaves the possibility that the "morally innocent" be convicted. She therefore concluded that s. 32(1)(c) violates s. 7 of the Charter.