R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606

The Nova Scotia Pharmaceutical Society was charged with two counts of conspiracy to unduly prevent or lessen competition, as a result of its practices in selling and dispensing prescription drugs in 1986 and prior.

The accused Society argued that the relevant sections of the Combines Investigation Act were contrary to Sections 7, 11(a), and 11(d) of the Charter due to vagueness and the lack of an adequately defined mens rea requirement.

In regard to vagueness, the Supreme Court noted that statutes should only be struck down as unconstitutionally vague if they are unintelligible to the point where there can be no meaningful legal debate. Such laws violate the principles of fundamental justice because a conviction automatically flows from the decision to prosecute.

The subject of Nova Scotia Pharmaceutical Society’s Charter challenge, Section 32(1)(c) of the Combines Investigation Act, stated 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.”

The Supreme Court acknowledged that this wording was general, but that the word “unduly” (though not defined) opened the door for a reasoned legal inquiry into the actions of the accused:

“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.”

In regard to the mens rea requirement, the court concluded that this too was sufficiently precise to meet the minimum constitutional standard:

“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.”

Decided by the Supreme Court of Canada on July 9, 1992.
Click here for the full text of the decision.

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Filed under Section 11: Legal Rights, Section 11(a): Right to be Informed of Offence, Section 11(d): Presumption of Innocence, Section 7: Life, Liberty, & Security of the Person

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