RJR and JTI

RJR and JTI

RJR

·      Tobacco advertising was prohibited by legislation, very broadly

·      Tobacco company challenged the legislation and it was found to be in violation of s. 2(b)

·      The majority could not justify the limit because the legislation was too broad

·      The dissent, written by La Forest, would have upheld the legislation because the health of Canadians was found to be important enough that the response was proportionate

·      The dissent pointed out that there was no political, scientific or artistic ends to tobacco advertising; equated this type of advertising to advertising prostitution, hate mongering, or pornography

How do you feel about this decision?

Most of our group felt that they would favour the decision of the majority in this case. At the same time, found that the dissent raised valid points, in that the dissent favoured the protection of vulnerable people the advertising was aimed it.

Why was parliament more stringent in this case than in other cases, for example, Irwin Toy?

·      Perhaps they were making an example of poor drafting on a major issue.

·      Perhaps because of McLachlin’s interest in free speech

JTI [2007]

·      Companies brought similar action on bans by governments

·      Found to all infringe s. 2(b)

·      But upheld under s. 1 in this case

·      Passes on the minimal impairment branch of s. 1 because of specific schematic structures

·      Distinguish this case from RJR by evidence that has been presented

·      There was a broader understanding internationally about the risks of health risks caused by smoking

What would explain the differences in the Court’s approach in these two cases?

·      Perhaps been a shift in the 12 years between the two cases in understanding of the health risks of tobacco companies. The rising concern of how much Canadians will pay for health care.

·      There were more provincial bans in place by 2007, which suggests that there was a general shift in society towards valuing smoke-free environments

·      Part of the violation in RJR was forcing the company to give warnings that were not part of their own expression

·      In JTI those warnings were coming straight from the mouth of Health Canada