Void for Vagueness

Law has many pithy expressions that refer to complex legal concepts. For example, the phrase “intrusion upon seclusion” refers to the tort of invading someone’s privacy. Other notable expressions include “aiding and abetting” and “the snail in the bottle case”. High on that list is “void for vagueness” which refers to when a provision in legislation has too uncertain a meaning to be legally valid.

In Covant v. College of Veterinarians of Ontario, 2023 ONCA 564, a veterinarian was found to have breached a provision prohibiting registrants from reselling drugs except “in reasonably limited quantities in order to address a temporary shortage experienced by … [an]other member or pharmacist”. The registrant operated a “side business” selling significant quantities of veterinary drugs to pharmacies after charging a 5% “handling fee”. A majority of the discipline panel found that this amounted to professional misconduct and imposed a suspension of one month, a requirement that he complete an ethics course, a post-suspension inspection, and payment of one-third of the costs, totalling $94,235.12. The veterinarian appealed to the Divisional Court which upheld the discipline decision. He then was granted leave to appeal to the Court of Appeal.

A primary ground of appeal was that the phrases “reasonably limited quantities” and “in order to address a temporary shortage” were impermissibly vague. The Court reaffirmed that s. 7 of the Canadian Charter of Rights and Freedoms (related to “life, liberty, and the security of the person”) does not apply to the right to practise a particular profession despite the stress of professional discipline proceedings. The Court further found that the phrases at issue did not contravene any void for vagueness requirements in the case law; rather, the phrases provided permissible room for legal debate. The Court said:

The fact that a regulation requires interpretation in the context of a specific factual matrix does not suffice for a finding of vagueness. Here, the impugned phrases are complementary – they inform the content of each other, and in so doing, achieve an acceptable level of clarity. I agree with the observation that, “[b]ased on the context, ‘reasonably limited quantities’ would mean quantities proportionate to the temporary shortage” ….”

The Court was reassured that the volume of re-sales indicated that this was far from a borderline case.

The Court also rejected the related argument that the provisions were “overbroad” in the sense that it went beyond what was needed to accomplish the governmental objective. The rationale for the rule was that veterinarians should, generally, only be involved in the distribution of drugs to ensure their availability for their patients. The Court said:

First, the College is not required to wait for harm to materialize before taking action. Instead, the College is entitled to regulate its members to mitigate risk. Second, this submission amounts to a challenge to the wisdom of the amendment to s. 33(2)(d). Indeed, this was a recurrent theme in a number of Dr. Covant’s submissions. That Dr. Covant does not agree with the Regulation is of no concern to the College, nor to the courts.

The Court also made the following points:

  • It was permissible for the regulator to allege a course of conduct. It was not required to prove that any (or every) single re-sale infringed the rule.
  • There was no error in principle in the sanction and costs orders:

Given the nature of Dr. Covant’s conduct, and his ongoing conduct in the face of numerous red flags, the sanction was appropriate. In imposing the sanction that it did, the Committee also intended to deter other veterinarians from engaging in similar conduct, and at the same time, maintain the public’s confidence in the ability of the College to regulate its members.

  • The costs award was appropriate. The panel considered the seriousness of the misconduct, that not all of the allegations were proved, and the role of both parties in the length of the hearing.

This decision is consistent with several previous cases indicating that a definition of misconduct need not be overly precise to be valid.

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