What is the test for the regulated conduct defence?

At least in the context of provincially regulated conduct[2], for the regulated conduct defence to be available, the law providing for criminal liability (in this case, s. 45(1) of the Competition Act) must leave room for the regulated activity to operate without being criminalized. The motion judge held that the version of s. 45(1) in effect until March 2010, signaled, through the use of the word “unduly” that the regulated conduct defence was available. As he explained, conduct authorized by valid provincial or federal legislation is deemed to be in the public interest and cannot constitute an “undue” limit on competition under the Competition Act: Hughes, at para. 221; A.G. Can v. Law Society of B.C., 1982 CanLII 29 (SCC), [1982] 2 S.C.R. 307 [Jabour], at p. 354.