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Charter - Vagueness

. 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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