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

Facts:

• 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.

Issue(s):

What does "void for vagueness" mean?

Ratio:

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

Analysis:

• 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)

Factors
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

Comments:

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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