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Charter - Vagueness

. Caruso v. The Law Society of Ontario

In Caruso v. The Law Society of Ontario (Div Court, 2023) the Divisional Court considered (and dismissed) a JR by an Ontario paralegal challenging the accepted constitutional governage of immigration consultants, specifically whether LSO By-law 4 ['Licensing'] governed the issue as opposed to s.91(2) ['Representation or Advice'] of the Immigration and Refugee Protection Act.

In these quotes the court considers the application of Charter s.7 ['life, liberty and security of the person'] to the administrative regime governing immigration consultants, here on the issue of 'vagueness':
(3) Does the LSO’s restriction on the Applicant’s scope of practice infringe his rights under Charter s. 7?

[118] Charter s. 7 provides:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[119] The Applicant argues that the principles of fundamental justice require that paralegals be allowed to practice the full scope of immigration law. He argues that “vulnerable and marginalized people” are being denied access to justice because the LSO has eliminated “an affordable option for representation on the full gamut of immigration applications”.

[120] The Applicant relies on no legal authority for his position, nor does he set out any facts in his affidavit to support his s. 7 claim.

[121] Charter s. 7 involves a two-step process. First, it must be determined whether there has been a deprivation of the right to life, liberty or security of the person. Secondly, the person seeking to establish the violation must establish that the deprivation of the right is not “in accordance with the principles of fundamental justice”. The onus is on the applicant to prove both the deprivation and the breach of fundamental justice: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, at para. 3; Mussani v. College of Physicians and Surgeons of Ontario, 2004 CanLII 48653 (ON CA), at para. 45.

[122] The Applicant’s submissions do not explain how he has been deprived of the right to life, liberty or security of the person. He appears to suggest that any limit on his scope of practice as a paralegal is a limit on his liberty.

[123] This suggestion is inconsistent with the Court of Appeal’s decision in Mussani, at paras. 41 and 43, which held that the Charter does not protect the right to practice a profession.

[124] Nor has the Applicant established that By-Law 4 is inconsistent with any principle of fundamental justice.

[125] In Canadian Foundation for Children, the Supreme Court of Canada summarized the three criteria that must be met to qualify as a principle of fundamental justice, at para. 8:
Jurisprudence on s. 7 has established that a “principle of fundamental justice” must fulfill three criteria... First, it must be a legal principle. This serves two purposes. First, it “provides meaningful content for the s. 7 guarantee”; second, it avoids the “adjudication of policy matters” ... Second, there must be sufficient consensus that the alleged principle is “vital or fundamental to our societal notion of justice” … The principles of fundamental justice are the shared assumptions upon which our system of justice is grounded. They find their meaning in the cases and traditions that have long detailed the basic norms for how the state deals with its citizens. Society views them as essential to the administration of justice. Third, the alleged principle must be capable of being identified with precision and applied to situations in a manner that yields predictable results. Examples of principles of fundamental justice that meet all three requirements include the need for a guilty mind and for reasonably clear laws. [Citations omitted.]
[126] The Applicant’s factum does not identify any principle of fundamental justice.

[127] In oral argument, the Applicant took the position that By-Law 4 was void for vagueness.

[128] Vagueness is a principle of fundamental justice. As the Court of Appeal stated in Cochrane v. Ontario (Attorney General), 2008 ONCA 718, 92 O.R. (3d) 321, at para. 37:
Vagueness describes a lack of precision in legislation that leaves its meaning and application unacceptably uncertain. Legislation should provide fair notice to citizens as to what conduct is prohibited, appropriate limits on the discretion of law enforcement officials and a proper basis for coherent judicial interpretation. A law that implicates the s. 7 right to life, liberty and security of the person will be struck down as being inconsistent with the principles of fundamental justice if it is not sufficiently intelligible to meet these objectives.
[129] In R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606, the Supreme Court of Canada held, at para. 42, “the threshold for finding a law vague is relatively high”, and recognized that vagueness requires unintelligibility, not simply uncertainty. A law should not be declared void simply because it requires judicial interpretation in order to determine its application to a particular situation.

[130] In Ontario v. Canadian Pacific Ltd., 1995 CanLII 112 (SCC), [1995] 2 S.C.R. 1031, the Supreme Court stated, at para. 79:
Where a court is faced with a vagueness challenge under s. 7, the focus of the analysis is on the terms of the impugned law. The court must determine whether the law provides the basis for legal debate and coherent judicial interpretation. As I stated above, the first task of the court is to develop the full interpretive context surrounding the law, since vagueness should only be assessed after the court has exhausted its interpretive function. If judicial interpretation is possible, then an impugned law is not vague. A law should only be declared unconstitutionally vague where a court has embarked upon the interpretive process, but has concluded that interpretation is not possible. In a situation, such as the instant case, where a court has interpreted a legislative provision, and then has determined that the challenging party’s own fact situation falls squarely within the scope of the provision, then that provision is obviously not vague.
[131] In the present case, the legal debate revolved around the word “proceeding” in s. 6(2) of By-Law 4. Two possible interpretations were advanced by the parties, and this Court has found in favour of one. The By-Law clearly provides the basis for legal debate and coherent judicial interpretation. Having “embarked upon the interpretive process”, and provided an interpretation of s. 6(2) of By-Law 4, and determined that the Applicant’s proposed conduct is not permitted, “that provision is obviously not vague”.
. Covant v. College of Veterinarians of Ontario

In Covant v. College of Veterinarians of Ontario (Div Ct, 2021) the Divisional Court considers the law of 'vagueness':

[29] Dr. Covant submits that s. 33(2)(d) is unconstitutionally vague because the terms “reasonably limited quantities” and “temporary shortage” do not permit veterinarians to assess the scope of prohibited conduct. Dr. Covant argues that because those terms are not defined in the regulation, the lack of precision creates the risk that veterinarians will contravene s. 33(2)(d) despite not intending to do so.

[30] The constitutional standard for vagueness is a very high threshold. In order for a provision to be found unconstitutionally vague, it must set “a standard that is not intelligible, cannot provide the basis for coherent judicial interpretation, and is not capable of guiding legal debate.” Mussani v. College of Physicians and Surgeons of Ontario (2003), 2003 CanLII 45308 (ON SCDC), 64 O.R. (3d) 641, 2 Admin. L.R. (4th) 123 (Div. Ct.), at para. 80. Vagueness must not be assessed in a vacuum and must be considered “within a larger interpretive context developed through an analysis of considerations such as the purpose, subject-matter and nature of the impugned provision, societal values, related legislative provisions, and prior judicial interpretations of the provision.” Mussani, at para. 81.

[31] The panel did not err in finding that the language of s. 33(2)(d) does not meet the high threshold for vagueness. When s. 33(2)(d) is considered with the legislative purpose and context in mind, the terms “reasonably limited quantities” and “temporary shortage” are not impermissibly vague. The purpose, as noted above, is to limit the ability of veterinarians to dispense and sell animal drugs while nonetheless providing some access to those drugs when a short-term shortage arises.

[32] The panel correctly found that the amendment did not have to stipulate a specific quantum because whether a member engages in reselling contrary to s. 33(2) will depend on the circumstances. As will be further detailed below, under no circumstances could the significant quantities sold by Dr. Covant be considered “reasonably limited.”

[33] Moreover, it was not necessary to define the terms “reasonably limited quantities” and “temporary” because they can be interpreted according to their ordinary meaning. As the College points out, the term “reasonable” is used 14 times and the term “temporary” is used 15 times in the General Regulation. The terms are capable of coherent interpretation based on their common usage and context. “Temporary” means for a limited period of time, as opposed to permanently or on an ongoing basis. Based on the context, “reasonably limited quantities” would mean quantities proportionate to the temporary shortage.


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Last modified: 01-12-23
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