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R v Nova Scotia Pharmaceutical Society, [1992] 2 SCR 606


• Accused charged with conspiring to lessen or “unduly threaten” competition in the sale of drugs. Moved to quash by claiming grounds charged violated s.7 in terms of vagueness.


What does "void for vagueness" mean?


In minimal impairment, law so lacking in legal precision that it fails to give sufficient guidance for legal debate is “void for vagueness.”


• Vagueness
o Papachristou: “Law fails to give a person of ordinary intelligence fair notice…”
o Can be raised in s.7, s.1 (prescribed by law), or s.1 minimally impairing test
o Founded upon the principle of fair notice to citizens
- Intuitive societal awareness that certain conduct is just wrong
- Reasonable room for judicial interpretation leads to “fair notice”
- Does the law offer “limitless discretion” to state officials?
o Merges with overbreadth when examined under s.1 minimal impairment test
- Overbreadth: Law is clear, but may infringe existing constitutional rights, catch conduct beyond its purpose, means “too sweeping”, or inappropriate use of the criminal law power
- While a vague law is likely overbroad, overbroad law probably not vague
o Will rarely fail the “prescribed by law” in limine s.1 analysis
o Can be raised in substantive Charter sections when these sections comprise some internal limitation (eg. s.7)
o Doctrine of Vagueness is specific – but Doctrine of Overbreadth is always relational; only has meaning when you know the context of the law generally
o Often court will not strike down a vague law, but rather give interpretive tools to better delineate a zone of understanding for the law in question
o The law needs to ensure that citizens substantively understand the law to qualify as fair notice (procedural notice would just be to publish the law)

o Need for flexibility and interpretive role of courts
o Impossibility of achieving absolute certainty
o Possibility that many judicial interpretations exist and perhaps coexist


Reasons Behind Doctrine of Void for Vagueness:
• Fair Notice to Citizens: Do citizens have a reasonable expectation of knowing that their actions will contravene a law (based in judicial interpretation?
• Limitation of Law Enforcement Discretion: From the Prostitution Reference case comes the “standardless sweep” meaning that a law cannot be so devoid of precision in its content that a conviction will automatically result should prosecution be pursued. Is the law overly sweeping?
• European Court of Human Rights: References that the ECHR has taken a similar approach to the term of vagueness – is the law in line with other jurisdictions?
• The Scope of Precision: Laws cannot be unintelligible that it does not give sufficient guidance for legal debate; therefore, if one cannot debate a law because no one knows what it means – then it cannot be constitutional. Can the law itself be debated on its intent and its merit, and has a sufficient area of risk been delineated?
- Just because there is room for interpretation does NOT mean it is vague
• Vagueness and the Rule of Law: Viewing rule of law in a contemporary context in that the state plays a larger role in the lives of people and this has evolved – can’t prevent or impede state action in pursuit of valid social objectives by requiring an unreasonable degree of precision

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