The respondent operated a direct mail business in Ontario that sold lottery tickets and merchandise to persons outside Canada.
He was acquitted of making false or misleading representations 'to the public' under s. 52(1) of the Competition Act because the trial judge held the phrase only applied to the Canadian public.
The Crown appealed.
The Court of Appeal held that 'to the public' is not restricted to the Canadian public where there is a real and substantial link to Canada.
However, the Court ordered a new trial because the trial judge's excessive interventions and cross-examination of the respondent compromised the appearance of trial fairness.
The Court also clarified that reliance on legal advice is a mistake of law, not fact, and that the post-1999 mens rea requirement for s. 52 requires proof of knowledge or recklessness regarding the misleading nature of the representations.
