R. v. Nova Scotia Pharmaceutical Society [1992] 2 S.C.R. 606 93 D.L.R. (4th) 36 139 N.R. 241 114 N.S.R. (2d) 91 (N.R., N.S.R. sub nom. R. v. Nova Scotia Pharmaceutical Society (No. 2)) 74 C.C.C. (3d) 289 (C.C.C. sub nom. Nova Scotia Pharmaceutical Society v. The Queen) 43 C.P.R. (3d) 1 10 C.R.R. (2d) 34 15 C.R. (4th) 1 (C.R. sub nom. Canada v. Pharmaceutical Society (Nova Scotia)) [1992] S.C.J. No. 67 DRS 92-02120 Supreme Court of Canada (from Nova Scotia) Lamer C.J. and La Forest, L'Heureux-Dubйé, Sopinka, Gonthier, Cory and Iacobucci JJ. July 9, 1992

Constitutional law —— Combines Investigation Act —— Conspiracy to prevent or lessen competition unduly —— Principles of fundamental justice —— Vagueness —— Meaning of "unduly" —— Elements of offence —— Whether mens rea required.

Appeal from a decision holding that section 32(1)(c) of the Combines Investigation Act did not violate section 7 of the Canadian Charter of Rights and Freedoms. The appellants were charged under section 32(1)(c) of the Combines Investigation Act with conspiracy to prevent or lessen competition unduly. The appellants argued that the section was too vague due to the use of the word "unduly". The respondents argued that the Crown was not required to prove the intent to lessen competition and that lack of this fault element did not violate the principles of fundamental justice.

HELD: Appeal dismissed. According to the doctrine of vagueness, a law was unconstitutionally vague if it so lacked in precision as not to give sufficient guidance for legal debate. Section 32(1)(c) embodied a general standard that represented an intelligible principle. Although the word "unduly" did not have a precise technical meaning, it denoted a sense of seriousness. The inquiry into the seriousness of the competitive effects of the conspiracy to be conducted pursuant to section 32(1)(c) was sufficiently outlined in the rest of the Act and the case law so as to meet the standard of section 7 of the Charter. A minimum fault requirement satisfied section 7 of the Charter. Section 32(1)(c) required proof of an objective as well as subjective fault element. The Crown had to establish the intention to enter into the agreement and that the accused was aware or ought to have been aware that the agreement would prevent or lessen competition unduly.

STATUTES, REGULATIONS AND RULES CITED:

Act for the Prevention and Suppression of Combinations formed in restraint of Trade, S.C. 1889, c. 41.Canadian Charter of Rights and Freedoms, 1982, ss. 1, 2, 7, 8, 11(a), 11(d), 11(h), 12.Civil Code of Lower Canada, art. 1053.Commission Regulation No. 1983/83 of June 22, 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.Combines Investigation Act, R.S.C. 1970, c. C-23, ss. 30(2), 32(1)(c), 32(1.1), 32(1.3), 51(7), 70.Competition Act, R.S.C. 1985, c. C-34, ss. 34(2), 45(1)(c), 45(2), 45(2.2), 45.1, 79(7), 98.Constitution of the United States, First Amendment, Fifth Amendment, Eighth Amendment, Fourteenth Amendment.Criminal Code, R.S.C. 1985, c. C-46, ss. 19, 163(8), 219, 222, 240, 319(2), 319(3).Criminal Code, R.S.C. 1970, c. C-34, ss. 193, 195.1(1)(c).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).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.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, Rules 29(1), 29(2).Sherman Act, c. 647, 26 Stat. 209 (1890), s. 1.Treaty establishing the European Economic Community, Art. 85.1984 Merger Guidelines, 49 Fed. Reg. 26823.Public Service Employment Act, R.S.C. 1985, c. P-33, s. 33.Government Airport Concession Operations Regulations, SOR/79-373.