RJR MacDonald & JTI MacDonald

First, LaForest's dissent in RJR MacDonald is problematic. We agree with the general principles of the reasoning, but his formulation of the proper test for s.1 (pg. 989) is too much a departure from the stringent, established Oakes Test. He says that an infringement can be justified so long as it is reasonable and demonstrably justified in a free and democratic society. Although these are the exact words of section 1 of the Charter, he is basically requesting an abandonment of the Oakes test.

Second, the transition between these two cases saw the dialogue between the courts and parliament become more deferential. Parliament deferred more to parliament in RJR than it did in JTI. Parliament's response to RJR, in the form of the Tabacco Act  and the Tobacco Products Information Regulation, prompted the courts to respond to parliamentary efforts. The goal of the courts was, as always, to maintain the legitimacy of the judiciary by deferring to the elected legislature.

The timing between cases suggests that society, in general, gained more and more appreciation that smoking is harmful, and thus became more and more condemned.  For example, in 1995 people were still smoking in restaurants and bars. Eventually, these establishments had non-smoking sections, followed by smoking sections being glassed in, having to go outside to smoke, smoking on patios only, culminating in no smoking whatsoever.

We are concerned about the level of deference to parliament in in JTI-MacDonald because the infringement is arbitrary. Why cigarettes? Because they're harmful. Why not alcohol? Alcohol can be extremely harmful, yet the warnings are not nearly as explicit or prevalent. Similarly, commercials produced for the benefit of fast food establishments can be directed at children and depict happy families surrounded by bright, primary colours.