Nova Scotia Pharmaceutical Society Case

In the Nova Scotia Pharmaceutical Society case (1992), the Supreme Court took into account the doctrine of vagueness. A legislative provision which is vague, which is "neither fish nor fowl," cannot give rise to an effective judicial determination and will therefore be deemed unconstitutional by the Court. This doctrine, as developed in the case by the Court, was formerly part of the principles of fundamental justice of Canada. It rests on the principle of the rule of law. The requirement of reasonable notice of the law to citizens, which is similar to the limitation on the exercise of discretionary power in the application of the law, constitutes the foundation of the doctrine of vagueness and is related to the principle of the rule of law. This norm applies in all the subdivisions of law: civil, criminal, administrative, etc. This doctrine can be elevated to a basic foundation principle of the Charter which envisages "inherent limits," as in section 7. In other instances, the doctrine of vagueness can be invoked at the stage of invoking section 1.

The facts to be considered when deciding whether a provision is vague are the following: (a) the need for flexibility and the role of courts in interpreting the law; (b) the impossibility of absolute precision, a standard of intelligibility being preferable; and (c) the possibility that a given provision may be susceptible to a number of interpretations which can co-exist. In the case, the issue involved whether subsection 32(1)(c) of the Competition Act, which dealt with improper agreements in restraint of trade, was vague to the extent of being incompatible with section 7 of the Charter. The Court analysed this provision and concluded that it was sufficiently precise to satisfy the constitutional norm.

Author GÉRALD-A. BEAUDOIN