U.F.C.W., Local 1518 v. KMart Canada, [1999] 2 S.C.R. 1083

United Food and Commercial Workers, Local 1518 Appellant

KMart Canada Ltd. and the Labour Relations Board of British Columbia Respondents

and

The Attorney General of British Columbia, the Canadian Labour Congress, the Canadian Civil Liberties Association, the Retail Council of Canada, the Coalition of B.C. Businesses and Pepsi‑Cola Canada Beverages (West) Ltd. Interveners

Indexed as: U.F.C.W., Local 1518 v. KMart Canada Ltd.

File No.: 26209.

1999: February 15, 16; 1999: September 9.

Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, Iacobucci, Major and Binnie JJ.

on appeal from the court of appeal for british columbia

Constitutional law – Charter of Rights – Freedom of expression – Union members distributing leaflets at secondary sites during labour dispute -- Provincial labour relations code prohibiting picketing at secondary sites -- Picketing defined broadly so as to include leafleting -- Whether definition of picketing infringes freedom of expression -- If so, whether infringement justifiable -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b) – Labour Relations Code, S.B.C. 1992, c. 82, ss. 1(1), 65, 67.

Labour law – Labour disputes – Picketing – Leafleting – Union members distributing leaflets at secondary sites during labour dispute -- Provincial labour relations code prohibiting picketing at secondary sites -- Picketing defined broadly so as to include leafleting -- Whether definition of picketing infringes freedom of expression -- If so, whether infringement justifiable -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b) – Labour Relations Code, S.B.C. 1992, c. 82, ss. 1(1), 65, 67.

During a labour dispute with two KMart stores, members of the appellant union distributed leaflets at other KMart stores (the “secondary sites”). They handed out two types of leaflet, describing KMart’s alleged unfair practices and urging customers to shop elsewhere. The distribution of leaflets did not interfere with employees at the secondary sites nor was there any indication that it interfered with the delivery of supplies. The activity was carried out peacefully and it did not impede public access to the stores. Neither was there any evidence of verbal or physical intimidation. The evidence did indicate that as a result of the distribution of leaflets some customers appeared confused and a small number appeared to turn away. The Industrial Relations Council (which became the Labour Relations Board) ordered the union to refrain from picketing at the secondary sites. In written reasons for the order the Board rejected the union’s argument that the statutory definition of “picketing” was unconstitutional and should be read down to exclude leafleting in light of s. 2(b) of the Canadian Charter of Rights and Freedoms. The union applied for a reconsideration of the decision. While the Board dismissed the application, because the labour dispute had been settled and become moot, it concluded that the restriction of secondary picketing in the Labour Relations Code was overly broad. The British Columbia Supreme Court dismissed the union’s application for judicial review of the Board’s reconsideration decision, and a subsequent appeal to the Court of Appeal was dismissed. At issue here was whether the definition of picketing in the Code infringes s. 2(b) of the Charter and, if so, whether the infringement is justifiable under s. 1.

Held: The appeal should be allowed.

The importance of work for individuals has been consistently recognized and stressed. A person’s employment is an essential component of his or her sense of identity, self‑worth and emotional well‑being. As well, the vulnerability of individual employees, particularly retail workers, and their inherent inequality in their relationship with management has been recognized. It follows that workers, particularly those who are vulnerable, must be able to speak freely on matters that relate to their working conditions. The fundamental freedom to speak about matters that relate to working conditions is explicitly recognized in s. 64 of the Labour Relations Code, which provides that a trade union and its members are free to communicate information to the public with regard to a labour dispute, except in a manner which may constitute picketing. The distribution and circulation of leaflets has for centuries been recognized as an effective and economical method of both providing information and assisting rational persuasion.

The definition of “picketing” contained in s. 1(1) of the Code is overly broad and infringes the guarantee of freedom of expression contained in s. 2(b) of the Charter. While ss. 65(3) and 67 establish the parameters of permissible and impermissible picketing, s. 1(1) defines picketing in very broad terms which undoubtedly encompass leafleting. The operation of ss. 1, 65 and 67 of the Code has, at the very least, the effect of restricting consumer leafleting and thus infringes the union’s freedom of expression.

The infringement of freedom of expression cannot be justified under s. 1 of the Charter. Consumer leafleting is very different from a picket line, which acts as a barrier and impedes public access to goods or services, employees’ access to their workplace, and suppliers’ access to the site of deliveries. Consumer leafleting seeks to persuade members of the public to take a certain course of action through informed and rational discourse, which is the very essence of freedom of expression. Leafleting does not have the same coercive component as a picket line, and does not in any significant manner impede access to or egress from premises. Although the enterprise which is the subject of the leaflet may experience some loss of revenue, the harmful effects that flow from leafleting do not differ from the consequences resulting from a consumer boycott campaign through permissible means.

In deciding whether the consumer leafleting activity in question is acceptable, it will be important to determine whether consumers are able to determine for themselves what course of action to take without being unduly disrupted by the message of the leaflets or the manner in which it was distributed. Consumers must retain the ability to choose either to stop and read the material or to ignore the leafleter and enter the neutral site unimpeded. In this case, the leafleting conformed with the following conditions: (i) the message conveyed by the leaflet was accurate, not defamatory or otherwise unlawful, and did not entice people to commit unlawful or tortious acts; (ii) although the leafleting activity was carried out at neutral sites, the leaflet clearly stated that the dispute was with the primary employer only; (iii) the manner in which the leafleting was conducted was not coercive, intimidating, or otherwise unlawful or tortious; (iv) the activity did not involve a large number of people so as to create an atmosphere of intimidation; (v) the activity did not unduly impede access to or egress from the leafleted premises; (vi) the activity did not prevent employees of neutral sites from working and did not interfere with other contractual relations of suppliers to the neutral sites. Leafleting which complied with these conditions would normally constitute a valid exercise of freedom of expression carried out by lawful means, yet it would be prohibited by the impugned legislation.

The government sought to minimize the impact of the harmful effects of picketing on neutral third parties and the public. While a restriction on conventional picketing activity at neutral sites is rationally connected with the legislative objective, the restriction on leafleting activity is too broad. Just as in any other area where the legislature is called upon to balance competing interests on complex issues, deference should be shown to the political choices of the legislature in labour legislation. However, deference should not deter the courts from determining whether those political choices fall within constitutionally permissible parameters of reasonable alternatives. Where, as in this case, the Board applies the Charter in its decision, the Court must determine whether the Board’s decision was correct. The impugned provisions do not limit freedom of expression as little as reasonably possible in order to achieve the legislative objective. While there is no doubt that any activity which in fact impedes access to premises has the same effect as conventional picketing and therefore can be properly regulated and restricted, peaceful leafleting by a few individuals has as a general rule been accepted as a lawful means of disseminating information. The suggestion that today’s consumers will be intimidated by the mere sight of a few individuals distributing leaflets at the entrance to a shopping mall is not convincing. Sections 1, 65 and 67 of the Code operate as a blanket prohibition on any persuasive activity by striking or locked out employees at neutral sites. A total prohibition is clearly not carefully tailored to the objective of minimizing the harmful effects to third parties which would result from others impeding access to premises or encouraging employees to break their contract of employment. The definition of “picketing” in s. 1(1) of the Code is struck down and the declaration of invalidity is suspended for six months.

Cases Cited

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 2(b).

Constitution Act, 1982, s. 52(1).

Industrial Relations Act, R.S.B.C. 1979, c. 212 [am. 1987, c. 24, s. 1], ss. 85, 88.

Labour Relations Code, S.B.C. 1992, c. 82, ss. 1(1) “picket”, “picketing”, 2(1), 64, 65(3), (7), 67.

Authors Cited

British Columbia. Debates of the Legislative Assembly, June 10, 1987, p. 1695.

Carrothers, A. W. R., E. E. Palmer and W. B. Rayner. Collective Bargaining Law in Canada, 2nd ed. Toronto: Butterworths, 1986.

Fleming, John G. The Law of Torts, 9th ed. Sydney: LBC Information Services, 1998.

Manwaring, J. A. “Bringing the Common Law to the Bar of Justice: A Comment on the Decision in the Case of Dolphin Delivery Ltd.” (1987), 19 Ottawa L. Rev. 413.

Weiler, Joseph M. “The Regulation of Strikes and Picketing Under the Charter”. In Joseph M. Weiler and Robin M. Elliot, eds., Litigating the Values of a Nation: The Canadian Charter of Rights and Freedoms. Toronto: Carswell, 1986, 211.

Weiler, Paul C. Reconcilable Differences: New Directions in Canadian Labour Law. Toronto: Carswell, 1980.

Weiler, Paul C. “The Charter at Work: Reflections on the Constitutionalizing of Labour and Employment Law” (1990), 40 U.T.L.J. 117.

APPEAL from a judgment of the British Columbia Court of Appeal (1997), 39 B.C.L.R. (3d) 157, 149 D.L.R. (4th) 1, 94 B.C.A.C. 299, 152 W.A.C. 299, 2 Admin. L.R. (3d) 131, [1998] 2 W.W.R. 312, 46 C.R.R. (2d) 305, 39 C.L.R.B.R. (2d) 294, 97 C.L.L.C. ¶220-087, [1997] B.C.J. No. 1629 (QL), affirming a decision of the British Columbia Supreme Court (1995), 14 B.C.L.R. (3d) 162, 34 C.R.R. (2d) 114, 39 C.L.R.B.R. (2d) 264, 96 C.L.L.C. ¶210-007, [1995] B.C.J. No. 2324 (QL), dismissing the appellant’s application for reconsideration of a decision of the British Columbia Labour Relations Board (1994), 24 C.L.R.B.R. (2d) 1, 95 C.L.L.C. ¶220-010. Appeal allowed.

John Baigent, for the appellant.

Patrick G. Foy, Q.C., for the respondent KMart Canada Ltd.

Joseph J. Arvray, Q.C., and Charles Gordon, for the respondent the Labour Relations Board of British Columbia.

George H. Copley, Q.C., for the intervener the Attorney General of British Columbia.

Steven M. Barrett, Frank Addario and Vanessa Payne, for the intervener the Canadian Labour Congress.

John B. Laskin and Trevor C. W. Farrow, for the intervener the Canadian Civil Liberties Association.

John R. Sproat, for the intervener the Retail Council of Canada.

Andrea L. Zwack, for the intervener the Coalition of B.C. Businesses.

Written submissions only by R. G. Richards, Q.C., for the intervener Pepsi‑Cola Canada Beverages (West) Ltd.

The judgment of the Court was delivered by

Cory J.

[1] Cory J. -- The peaceful distribution of leaflets accurately setting out the position of employees involved in a labour dispute with their employer would ordinarily be protected by the guarantee of freedom of expression provided by s. 2(b) of the Canadian Charter of Rights and Freedoms. It is conceded that a legislative restriction on picketing which prohibits members of a union from peacefully distributing such leaflets at separate and distinct divisions of their employer infringes s. 2(b) of the Charter. The question then arises, can that legislation be justified pursuant to s. 1 of the Charter?

I. Factual Background

[2] The respondent KMart Canada Ltd. operates several stores in British Columbia. Seven of them are located in the Lower Mainland, two in Victoria, one in Campbell River, and one in Port Alberni. The appellant is the union certified to represent employees at the Campbell River and Port Alberni stores. Those stores are the “primary employer”. The union is not certified to represent employees in the Lower Mainland or Victoria stores. These stores will be referred to as the “secondary sites”. During a labour dispute with the primary employer, members of the appellant union distributed leaflets at the secondary sites.

[3] The Labour Relations Board in its decision described the leafleting activity in this way. Between December 4 and 6, 1992, groups of employees ranging from two to 12 individuals representing the appellant distributed leaflets to prospective KMart customers at the secondary sites. The individuals stood from two to 20 feet from the entrance of the stores and the majority were between six and eight feet from the doors. They handed out two types of leaflets, describing the respondent’s alleged unfair practices and urging customers to shop elsewhere. The leaflets made clear that the appellant was seeking only a consumer boycott of the respondent’s stores. The relevant parts of the leaflets read as follows:

ATTENTION K-MART SHOPPERS!!!

DID YOU KNOW THAT:

K-MART locked out over 140 employees, preventing them from working in their K-MART stores in Campbell River and Port Alberni in an attempt to stop the employees from attaining the basic needs within a first collective agreement.

U.F.C.W. LOCAL 1518, AND THE LABOUR MOVEMENT OF BRITISH COLUMBIA ARE ASKING YOU:

PLEASE DO NOT SPEND YOUR CHRISTMAS $$$$ AT K-MART

SHOP AT THEIR COMPETITOR’S STORES!!

For the past six months, over 140 members of the United Food and Commercial Workers Union, Local 1518, have been on strike, at the K-MART stores in Campbell River and Port Alberni.

We are asking for your assistance by boycotting this giant multinational corporation called K-MART. By doing so, we hope to move one step closer to eliminating the exploitation of employees who work for K-MART and return our striking members back to work with dignity, respect, and a fair collective agreement.

Because Christmas is the most profitable time of the year for K-Mart, we are asking you: please do NOT spend your Christmas dollars at K-MART!

All that the striking members want for Christmas is a fair and decent collective agreement with K-MART!

We want to thank you for your help, and wish you the best this season has to offer.

[4] The distribution of leaflets did not interfere with employees at the secondary sites nor was there any indication that it interfered with the delivery of supplies. The activity was carried out peacefully and it did not impede public access to the stores. Neither was there any evidence of verbal or physical intimidation. The evidence did indicate that as a result of the distribution of leaflets some customers appeared confused and a small number appeared to turn away.

[5] On December 8, 1992, pursuant to the Industrial Relations Act, R.S.B.C. 1979, c. 212, the respondent applied to the Industrial Relations Council to restrain the leafleting activity carried out by the members of the appellant at the secondary sites. The Industrial Relations Council found that the appellant had contravened ss. 85 and 88 of the Act and ordered it to refrain from picketing at the secondary sites.

[6] The Act was replaced by the Labour Relations Code, S.B.C. 1992, c. 82, which came into force on January 18, 1993. The Industrial Relations Council was continued as the Labour Relations Board and for the purpose of the present appeal, the relevant picketing provisions in the Code are in substance similar to those contained in the Act. The applications, hearing and orders issued by the original panel were all under the Act, but the reasons for the orders were issued by the Board under the Code.

[7] On February 9, 1993 the Board issued written reasons for the orders made on December 11 and 16, 1992. It rejected the appellant’s argument that the statutory definition of “picketing” in the Act was unconstitutional and should be read down to exclude leafleting in light of s. 2(b) of the Charter. The Board concluded that leafleting came within the legislated definition of picketing since it was an attempt to persuade customers not to enter the stores of the secondary employer.

[8] The appellant applied for a reconsideration of the Board’s decision. This application provided the Board with the opportunity to determine whether the Charter guarantee of freedom of expression required that consumer leafleting be excluded from the prohibition of secondary picketing. On July 15, 1994 the review panel of the Board dismissed the application for reconsideration. However, it was unanimous in finding that the restriction of secondary picketing in the Code was overly broad. It held that insofar as the definition of “picketing” included any persuasive activity at the location of a secondary employer it prohibited more expressive activity than could be justified by the legislative objective. While the majority concluded that the definition of “picketing” should be read down to exclude some, but not all, instances of leafleting, the dissenting members concluded that consumer leafleting per se was not picketing and found that the Code’s inclusion of leafleting in its definition of picketing could not be justified in any case under the Charter.

[9] The majority declined to draw a complete distinction between conventional picketing and leafleting. It would permit secondary consumer leafleting only insofar as it attempted to persuade consumers not to purchase struck goods or, in the case of a functionally integrated employer, not to do business with that employer. The majority found that such leafleting would not expand an existing labour dispute. However, in its view, any other leafleting activity could properly be restricted and those restrictions would pass constitutional muster. In the opinion of the majority, the appellant’s leafleting activity would have been lawfully enjoined as it was directed at stores which, under the Code, were separate and distinct operations of the primary employer.

[10] The appellant sought judicial review of the Board’s reconsideration decision. This application was dismissed by Huddart J. (as she then was). A subsequent appeal to the British Columbia Court of Appeal was dismissed.

[11] Before this Court, the respondent and the Attorney General of British Columbia, who intervened to defend the constitutionality of the impugned provisions, conceded that ss. 1, 65 and 67 of the Code infringe s. 2(b) of the Charter but argued that those infringements could be justified under s. 1 of the Charter. The appellant, on the other hand, submitted that leafleting activity could be distinguished from picketing and while the latter contained tortious elements and thus could be regulated, the former constituted lawful expression and there was no basis to restrict it in a free and democratic society.

[12] It must be emphasized that the only activity at issue in the present appeal is the peaceful distribution of leaflets at the secondary sites. At the Langley store, members of the appellant formed a “chain” which prevented customers from entering the store and, at the Surrey store, members carrying placards were present at the entrance to the parking area of the shopping mall where the store was located. Both these activities were restrained on the ground that they constituted picketing in the conventional sense. The appellant has not challenged the order restraining these activities and thus they are not in question and need not be considered. Further, leaflets were left on the windshield of cars in the store parking lots but this activity was held not to come within the definition of picketing. It was not restrained by the injunction and thus is not at issue in the present appeal.

[13] In my opinion, the definition of “picketing” contained in s. 1(1) is overly broad and infringes the guarantee of freedom of expression. It cannot be justified on the basis that it is necessary to achieve the legislative objective of minimizing the harmful effects to third parties which would result from others impeding access to premises or encouraging employees to break their contract of employment.

II. Relevant Statutory and Constitutional Provisions

[14] Labour Relations Code, S.B.C. 1992, c. 82

Definitions

(1) In this Code

“picket” or “picketing” means attending at or near a person’s place of business, operations or employment for the purpose of persuading or attempting to persuade anyone not to

(a) enter that place of business, operations or employment,

(b) deal in or handle that person’s products, or

and a similar act at such a place that has an equivalent purpose;

Purposes of the Code

(1) The following are the purposes of this Code:

(d) to promote conditions favourable to the orderly, constructive and expeditious settlement of disputes between employers and trade unions;

(e) to ensure that the public interest is protected during labour disputes;

Information

A trade union or other person may, at any time and in a manner that does not constitute picketing as defined by this Code, communicate information to a person, or publicly express sympathy or support for a person, as to matters or things affecting or relating to terms or conditions of employment or work done or to be done by that person.

Picketing

. . .

(3) A trade union, a member or members of which are lawfully on strike or locked out, or a person authorized by the trade union, may picket at or near a site or place where a member of the trade union performs work under the control or direction of the employer if the work is an integral and substantial part of the employer’s operation and the site or place is a site or place of the lawful strike or lockout.

(7) For the purpose of this section, divisions or other parts of a corporation or firm shall, if they are separate and distinct operations, be treated as separate employers.

Picketing restricted

Except as provided in this Code, a person shall not picket in respect of a matter or dispute to which this Code applies.

Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Everyone has the following fundamental freedoms:

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

Constitution Act, 1982

(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

III. Judicial History

A. British Columbia Supreme Court (1995), 14 B.C.L.R. (3d) 162

[15] The application for judicial review was dismissed and the Board’s decision was upheld although the reasons were not adopted. The appellant submitted that the majority of the Board made a reversible error when they accepted an interpretation of “picketing” that infringed the Charter without considering whether the definition could sustain an interpretation that would not do so. The error was said to arise from a failure to apply the presumption of constitutional validity. The chambers judge rejected that argument. She held that the Board was entitled to a high degree of deference as a highly specialized administrative tribunal and that absent Charter considerations, the Board was free to determine what constitutes picketing for the purposes of the Code.

[16] Huddart J. then turned to the issue of whether Charter considerations could prevent the picketing prohibition from applying to secondary consumer leafleting. She held that the restrictions on picketing constituted a prima facie infringement of s. 2(b) of the Charter. Thus the sole issue was whether the legislature’s infringement of that right was saved under s. 1 of the Charter. Huddart J. adopted a contextual approach and found that insulating third parties from the effects of labour disputes was a pressing and substantial objective. She agreed with the majority of the Board that the proportionality step of the s. 1 analysis was met insofar as the activity of the appellant was concerned. She held that the legislature had a reasonable basis for striking the particular balance between the competing interests. She noted that the legislature was owed deference in reaching the appropriate balance in such a complex labour law issue and she concluded that the legislature’s choice should not be disturbed by the courts.

B. British Columbia Court of Appeal (1997), 39 B.C.L.R. (3d) 157

[17] Hinds J.A. for the court considered that the prohibition of consumer leafleting was the primary issue to be examined in this appeal. The Court of Appeal also acknowledged that restrictions on picketing constituted a prima facie limitation on freedom of expression and that the only issue to be resolved was whether the prohibition against consumer leafleting was, under s. 1 of the Charter, a reasonable limit on freedom of expression.

[18] Hinds J.A. agreed with Huddart J.’s characterization of the legislative objective as “insulating third parties from harmful effects of labour disputes” (p. 172). In his view, this objective was sufficiently pressing and substantial to warrant an infringement of the appellant’s freedom of expression. Further, Hinds J.A. held that Huddart J. did not err in her conclusions regarding the proportionality requirement under s. 1 of the Charter. Hinds J.A. held that based on the Board’s finding that consumer leafleting was equivalent to traditional picketing, the s. 1 Charter analysis carried out in RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, applied. He noted that the facts of this case were somewhat different but nevertheless he held that the considerations under s. 1 in Dolphin Delivery were pertinent to this case.

[19] Accordingly, the appeal was dismissed.

IV. Issues

[20] On June 29, 1998, the Chief Justice stated the following constitutional questions:

Do ss. 1 (definition of “picket” or “picketing”), 65 and 67 of the Labour Relations Code, S.B.C. 1992, c. 82, limit freedom of expression as guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms to the extent that they prohibit union members from distributing leaflets at secondary sites of the employer in the context of a labour dispute?
If the answer to Question 1 is yes, is the limit reasonable and demonstrably justified under s. 1 of the Charter?

V. Analysis

A. Freedom of Expression

Overview

[21] Freedom of expression is fundamental to freedom. It is the foundation of any democratic society. It is the cornerstone of our democratic institutions and is essential to their functioning. See Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569, at para. 28. The fundamental value of free expression was referred to by me in Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at p. 1336:

It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be over‑emphasized. No doubt that was the reason why the framers of the Charter set forth s. 2(b) in absolute terms which distinguishes it, for example, from s. 8 of the Charter which guarantees the qualified right to be secure from unreasonable search. It seems that the rights enshrined in s. 2(b) should therefore only be restricted in the clearest of circumstances. [Emphasis added.]

[22] Moreover, it has repeatedly been held that rights and freedoms under the Charter must be interpreted generously in order to secure the full benefit of the Charter’s protection. See Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 155‑56; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344, Edmonton Journal, at p. 1356.

[23] The decision in Dolphin Delivery was the first attempt to interpret s. 2(b) of the Charter. The holding that labour picketing was a protected form of expression was an auspicious beginning. McIntyre J. underlined the fundamental value of free expression in the following terms. At p. 583 he wrote:

Freedom of expression is not, however, a creature of the Charter. It is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.

[24] Yet, the guarantee of freedom of expression must always be considered in the context presented by each case. See Edmonton Journal, at pp. 1355‑56; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232, at pp. 246‑47; R. v. Keegstra, [1990] 3 S.C.R. 697, at p. 760; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at paras. 71‑72 and 132‑34; Libman, at para. 60, and Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, at para. 91. It is the relative value of freedom of expression in the context in which it is presented which will affect the balancing which takes place under s. 1 of the Charter. In this case, the leafleting activity was carried out in support of the appellant’s position in a labour dispute. Although it has been conceded by the parties that the impugned legislation infringes s. 2(b), the extent of the protection afforded by that section of the Charter in the context of labour relations must still be explored in order to determine whether the legislation may be justified under s. 1 of the Charter.

Freedom of Expression in the Labour Relations Context

[25] The importance of work for individuals has been consistently recognized and stressed. Dickson C.J. in Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, observed at p. 368: “A person’s employment is an essential component of his or her sense of identity, self‑worth and emotional well‑being. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person’s dignity and self respect.” See also McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at p. 300; Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, at para. 94, and Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989, at para. 66. As well, the vulnerability of individual employees, particularly retail workers, and their inherent inequality in their relationship with management has been recognized. See Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1051; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at p. 773. It follows that workers, particularly those who are vulnerable, must be able to speak freely on matters that relate to their working conditions. For employees, freedom of expression becomes not only an important but an essential component of labour relations. It is through free expression that vulnerable workers are able to enlist the support of the public in their quest for better conditions of work. Thus their expression can often function as a means of achieving their goals.

[26] The facts of this case underscore the importance of freedom of expression in labour relations. The leafleting activity by the appellant was conducted in the course of a lawful dispute which had resulted in the employees being locked out for six months. The leaflets appealed to the public not to spend their money at KMart stores. They stated that 95 percent of the workforce were women and part-time employees and that the workers were seeking their first collective agreement. The collective bargaining issues included not only wages and working conditions, but also employment equity and job security. The Board recognized ((1994), 24 C.L.R.B.R. (2d) 1, at p. 29) that:

In attempting to obtain a first collective agreement, these employees were seeking the basic fundamentals that a collective agreement provides; for example, a grievance procedure, unjust dismissal provisions, seniority, improved wages and working conditions. These basic contract provisions underlie the value of collective bargaining -- rule of law, industrial democracy, voice, dignity and job security.

[27] The fundamental freedom to speak about matters that relate to working conditions is explicitly recognized by the Code. Section 64 provides that a trade union and its members are free to communicate information to the public with regard to a labour dispute, except in a manner which may constitute picketing. Accordingly, the Board held that it was permissible for employees to publish letters, issue press releases, take out newspaper advertisements or use billboards in order to publicize the labour dispute and attempt to gain public sympathy. In my view, it follows that both the legislation and the Board policy appreciate how very important it is for workers to disseminate accurate information in a lawful manner with regard to a labour dispute.

Leafleting as a Means of Expression

[28] The distribution and circulation of leaflets has for centuries been recognized as an effective and economical method of both providing information and assisting rational persuasion. It has long been used as a means to enlist support. See Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, and Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084. Free expression on matters of public interest and the right to publicly disseminate news and information and to express opinions on matters of public interest were considered to be fundamental rights long before the enactment of the Charter. See Saumur v. City of Quebec, [1953] 2 S.C.R. 299, at pp. 370‑71. The distribution of leaflets and posters is typically less expensive and more readily available than other forms of expression. As a result, they are particularly important means of providing information and seeking support by the vulnerable and less powerful members of society. See Libman, supra, at para. 76; Ramsden, at pp. 1096 and 1101‑3; Committee for the Commonwealth of Canada, at pp. 198 and 251. Leafleting, like the postering at issue in Ramsden, is a form of expression that has historically been used by vulnerable and disadvantaged groups. Indeed, in the present case, the Board recognized the importance and the value of leafleting in the following terms (at p. 53):

The ability to leaflet and handbill, to give speeches and directly canvass consumers, is a longstanding and traditional form of freedom of expression. It is inexpensive and may be the only form of expression to which many individuals or groups have access in order to influence members of the public. In the facts of this case, many of the activities took place at stores located in shopping malls which have been characterized as the equivalent forum to the public markets or main streets of the past: Commonwealth, supra.

Further, “attending” at a specific location to prosecute a consumer boycott has been a traditional right enjoyed by many non‑labour groups including political, social, religious and economic interest groups. Such methods were employed by civil rights groups to address human rights and civil liberties; by many different groups of citizens (especially new Canadians) to address the contravention of human rights in various countries around the world, including consumer and economic boycotts; by individuals generally, and women in particular, in regard to discrimination and violence; by religious groups to proselytize and defend religious beliefs; and by many citizens to protest war and nuclear arms.

[29] The respondent argued that the appellant’s intention in this appeal was to promote the economic interests of organized labour and that the appellant attempted “to take the dispute out of context by denying . . . the commercial and economic aspects of picketing”. Admittedly, an individual’s employment provides economic benefits, but it also fulfils significant social and psychological needs. For workers, a form of expression which deals with their working conditions and treatment by their employer is a statement about their working environment. Thus it relates to their well-being and dignity in the workplace. See Reference Re Public Service Employee Relations Act, at p. 368; Slaight Communications, at pp. 1054‑55, and Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, at pp. 289‑91. The Board recognized that picketing had not been defined by this Court solely in economic or commercial terms which would have afforded it less protection than other forms of political speech under the Charter. The Board correctly recognized that this constituted a “recognition that collective bargaining and labour law often involve not simply economic issues but fundamental legal, political and social issues. It is further recognition of the importance of a person’s livelihood and the significance of their dignity in the workplace” (pp. 26-27). It was the opinion of the Board that the leaflets attempted to convey a meaning that related to and was consistent with the labour dispute and that their goal was to achieve effective collective bargaining. The Board correctly determined that these goals were also consistent with the values that underlie freedom of expression as set out in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927.

Infringement upon Freedom of Expression

[30] It is obvious that freedom of expression in the labour relations context is fundamentally important and essential for workers. In any labour dispute it is important that the public be aware of the issues. Furthermore, leafleting is an activity which conveys meaning. In light of the very broad interpretation that has been given to freedom of expression, it clearly falls within the purview of s. 2(b) of the Charter. In Libman, supra, at para. 31, it was said: “Unless the expression is communicated in a manner that excludes the protection, such as violence, the Court recognizes that any activity or communication that conveys or attempts to convey meaning is covered by the guarantee of s. 2(b) of the Canadian Charter”.

[31] In the case at bar, the respondent and the Attorney General very properly conceded that the restriction on consumer leafleting activity was prima facie an infringement of freedom of expression. The impugned legislation acts as a complete restriction on any persuasive activity by striking employees, including consumer leafleting at the site of secondary employers. It may be helpful at this point to reproduce ss. 1, 65 and 67 of the Labour Relations Code:

Definitions

(1) In this Code

“picket” or “picketing” means attending at or near a person’s place of business, operations or employment for the purpose of persuading or attempting to persuade anyone not to

(a) enter that place of business, operations or employment,

(b) deal in or handle that person’s products, or

and a similar act at such a place that has an equivalent purpose;

Picketing

. . .

(7) For the purpose of this section, divisions or other parts of a corporation or firm shall, if they are separate and distinct operations, be treated as separate employers.

Picketing restricted

Except as provided in this Code, a person shall not picket in respect of a matter or dispute to which this Code applies.

[32] Sections 65(3) and 67 establish the parameters of permissible and impermissible picketing. However, s. 1(1) defines picketing in very broad terms which undoubtedly encompass leafleting. This interpretation is consistent with the Board’s conclusion which found that the consumer leafleting undertaken by the striking members of the appellant constituted prohibited picketing under the Code. Clearly, the Board’s findings of fact or interpretations of this legislation could not be overturned unless they were patently unreasonable. However, it must be noted that the inclusion of the appellant’s activity within the definition of “picketing” was not challenged on statutory interpretation principles. The question raised is whether the definition of “picketing” in s. 1(1) of the Code is overly broad thus infringing s. 2(b) and if so whether it can be justified pursuant to s. 1.

[33] It is true that impugned legislation may infringe a Charter right or freedom by its purpose or its effects. See Big M Drug Mart, at pp. 331‑32, and Irwin Toy, at pp. 971‑72. However, in my view, the operation of ss. 1, 65 and 67 of the Code has, at the very least, the effect of restricting consumer leafleting and thus infringes the appellant’s freedom of expression. Consequently, the first constitutional question must be answered in the affirmative.

B. Section 1 of the Charter

[34] The aim of the analysis under s. 1 of the Charter is to determine whether the infringement of a Charter right or freedom can be justified in a free and democratic society. Following the test elaborated initially in R. v. Oakes, [1986] 1 S.C.R. 103, and subsequently in cases including Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, and Thomson Newspapers, it is incumbent on the respondent and the Attorney General as the parties seeking to uphold the restriction on a Charter freedom to show on a balance of probabilities that such an infringement can be justified. To satisfy this burden, they must demonstrate that the objective sought to be served by the legislative restriction is of sufficient importance to warrant overriding a constitutionally protected right or freedom. Only a significantly pressing and substantial objective can meet this requirement. They must also demonstrate that the legislative restriction is proportional to the objective sought by the legislature. In determining proportionality, three factors must be examined. First, the measure chosen must be rationally connected to the objective. Second, it must impair the guaranteed right or freedom as little as reasonably possible. And third, there must be proportionality between the importance of the objective and the deleterious effects of the restriction and between the deleterious and salutary effects of the measure. The analysis must be undertaken in the context of labour relations.

Pressing and Substantial Objective

[35] In framing the objective as “insulating third parties from the harmful effects of a labour dispute” the respondent and the Attorney General relied on Dolphin Delivery. There McIntyre J. determined that the objective of the restriction was to ensure that a third party would not suffer unduly from the labour dispute over which it has no control. At issue in Dolphin Delivery was whether secondary picketing in support of a labour dispute was a protected form of expression under the Charter free from restriction by injunction. In upholding the common law limit imposed on secondary picketing, McIntyre J. wrote at p. 591:

When the parties do exercise the right to disagree, picketing and other forms of industrial conflict are likely to follow. The social cost is great, man‑hours and wages are lost, production and services will be disrupted, and general tensions within the community may be heightened. Such industrial conflict may be tolerated by society but only as an inevitable corollary to the collective bargaining process. It is therefore necessary in the general social interest that picketing be regulated and sometimes limited. It is reasonable to restrain picketing so that the conflict will not escalate beyond the actual parties. While picketing is, no doubt, a legislative weapon to be employed in a labour dispute by the employees against their employer, it should not be permitted to harm others.

It should be noted that McIntyre J. did not state, as indicated by the judge of first instance and the Court of Appeal, that third parties should be “insulated” from the effects of labour disputes. Rather, he expressed the opinion that picketing should not be permitted to harm others.

[36] The s. 1 analysis in Dolphin Delivery is of limited assistance for the present appeal. Indeed McIntyre J. specifically stated that it was not necessary for him to express an opinion in s. 1. What followed was clearly obiter and not essential to his reasoning. That case involved a different factual framework and the issues raised have different constitutional foundations. In Dolphin Delivery the determination of the objective proceeded on the assumption that the anticipated picketing would involve conventional picket lines. The activity would be tortious, interfering with contractual rights of third parties. It was assumed that some employees of the picketed enterprise and other trade union members of customers would decline to cross the picket lines, and that the business would be disrupted to a considerable extent. See Dolphin Delivery, at p. 582.

[37] It is important to note that a restriction on picketing activity was also considered in the case of B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214. There the Court found that picketing by the striking employees of the courthouse impeded public access to the courts and thus interfered with the rule of law, the very foundation of our justice system. It was again held that picketing fell within the ambit of freedom of expression; however, an injunction limiting the activity was considered reasonable because access to justice was of paramount importance.

[38] In view of the potentially disruptive effects of the activity, there is little doubt that a substantial and pressing concern exists to ensure the regulation of conventional picketing. Conventional picketing is characterized by picket lines which have a “signal effect”. It is often understood as attracting an automatic reflex response from workers, suppliers and consumers. Its existence impedes access to picketed sites. This impediment to movement may discourage some people from making rational choices based on persuasive discourse. The decision in Dolphin Delivery was not challenged and the analysis in the present case must proceed on the basis that restrictions on secondary picketing may be justified under s. 1 of the Charter. Whether restrictions on consumer leafleting are constitutionally valid will therefore depend on whether a distinction can be drawn between the conventional picketing at issue in Dolphin Delivery and the consumer leafleting in question here. The distinction between conventional picketing and consumer leafleting, pursuant to Charter considerations, is therefore the gist of the present appeal.

(a) Distinction Between Traditional Picketing and Consumer Leafleting

[39] Picketing is an important form of expression in our society and one that is constitutionally protected. In B.C.G.E.U. Dickson C.J. held that picketing is an “essential component of a labour relations regime founded on the right to bargain collectively and to take collective action” (p. 230). Dickson C.J. referred to Harrison v. Carswell, [1976] 2 S.C.R. 200, where a majority of this Court stated at p. 219:

Society has long since acknowledged that a public interest is served by permitting union members to bring economic pressure to bear upon their respective employers through peaceful picketing. . . .

[40] There can be no doubt that picketing is an exercise of freedom of expression. Yet its trademark is the picket line, which has been described as a “signal” not to cross. Whatever may be its message, the picket line acts as a barrier. It impedes public access to goods or services, employees’ access to their workplace, and suppliers’ access to the site of deliveries. As Dickson C.J. pointed out in B.C.G.E.U., “[p]icketing sends a strong and automatic signal: do not cross the line lest you undermine our struggle; this time we ask you to help us by not doing business with our employer; next time, when you are on strike, we will respect your picket line and refuse to conduct business with your employer” (p. 231). As Paul Weiler notes, this refusal to cross the picket line is not based solely on rational discourse between the picketer and the observer. In Reconcilable Differences (1980), at p. 79, he wrote:

The crucial variable determining the impact of peaceful picketing is whether it is addressed to unionized workers. That kind of picket line operates as a signal, telling union members not to cross. Certainly in British Columbia the response is automatic, almost Pavlovian. That response is triggered by a number of factors: the sense of solidarity among members of the general trade‑union movement; an appreciation that it is in the self‑interest of each to honour the other fellow's picket line because in their own dispute they will want the same reaction from other workers; a concern for the social pressures and ostracism of other workers if they do not conform to the trade union ethic; the likelihood that they will face serious discipline from their own trade union. It might even cost them their jobs, if they defy that ethic and cross a picket line approved by the trade union movement. In the final analysis, the legal treatment of picketing must rest upon a realistic appraisal of its industrial relations role. The picket line is much more than the simple exercise of a worker's freedom of expression. In a heavily unionized community it is an effective trigger to a work stoppage by a group of employees. [Emphasis added.]

[41] Picket lines constitute a formidable barrier. There is a reluctance in Canadian society to cross a picket line. This was recognized by the Labour Relations Board in Canada Safeway Ltd. v. International Brotherhood of Electrical Workers, Local 213 (1987), 16 C.L.R.B.R. (N.S.) 1, when it held (at p. 15) that:

. . . even members of the public at large, who may not share the trade union ethic, are generally reluctant to confront persons acting as pickets. Leaving aside instances of verbal threats, physical assault or other conduct going beyond mere peaceful picketing, there is undoubtedly an element of social pressure associated with picketing. One hesitates before being seen crossing a picket line or acting contrary to the objectives of the pickets. [Emphasis added.]

[42] The decision for people, whether employees, suppliers or consumers, not to cross the picket line may be based on its coercive effect rather than the persuasive force of the picketers. As the Board noted (at p. 54), “picketing is both a signal and the exercise of freedom of expression”. It is the “signal” component of conventional picketing which attracts the need for regulation and restriction in some circumstances. “Because it is an exercise of freedom of expression, it deserves constitutional protection; yet because it is a signal, it needs to be regulated and restricted.” In Dolphin Delivery, the “signal” effect of the activity impeded employees trying to reach their workplace. While that pressure may be properly applied against the primary employer, when it is brought against a neutral party by means of secondary picketing then it may not be permissible.

[43] Consumer leafleting is very different from a picket line. It seeks to persuade members of the public to take a certain course of action. It does so through informed and rational discourse which is the very essence of freedom of expression. Leafleting does not trigger the “signal” effect inherent in picket lines and it certainly does not have the same coercive component. It does not in any significant manner impede access to or egress from premises. Although the enterprise which is the subject of the leaflet may experience some loss of revenue, that may very well result from the public being informed and persuaded by the leaflets not to support the enterprise. Consequently, the leafleting activity if properly conducted is not illegal at common law. In the absence of independently tortious activity, protection from economic harm resulting from peaceful persuasion, urging a lawful course of action, has not been accepted at common law as a protected legal right. See J. G. Fleming, The Law of Torts (9th ed. 1998), at pp. 765‑77. Significantly, the harmful effects that flow from leafleting do not differ from those which would result from a consumer boycott campaign conducted by permissible means. In fact it is well nigh impossible to distinguish between the situation whereby consumers are informed and persuaded not to buy through leafleting at the place of purchase, and the situation whereby the same consumers are informed and persuaded not to buy through leaflets delivered to the mailbox, newspaper advertising, internet mailing or billboards and posters.

(b) The Labour Board’s Position on Leafleting

[44] The Board declined to make a distinction between picketing and leafleting. It put forward two reasons. First, the Board was concerned that leafleting, in some circumstances, might function in the same manner as picketing with the result that the distinction would allow parties to circumvent the regulation of picketing by means of leafleting. Yet by setting out its guidelines for permissible leafleting, the Board impliedly recognized that this could not be the rationale for declining to distinguish the two activities.

[45] The second concern expressed by the Board was that leafleting and picketing share the same objective ‑- to bring economic pressure to bear in support of a labour dispute. The same concern was raised by the British Columbia Supreme Court. In assessing the constitutional value of consumer leafleting, and holding that it was similar to picketing, Huddart J. relied on the motivation of the appellant in pursuing the activity. She held (at p. 191) that “[t]he purpose of consumer leafleting cannot be separated from the interest of the [appellant] in pursuing it. Here the [appellant]’s interest is exactly the same as that of a conventional picket line, to put economic pressure on the primary employer to resolve the dispute.” Further Huddart J. wrote that she agreed “with the majority [of the Board] that leafleting during a labour dispute at an employer’s non‑struck location for the purpose of persuading potential customers not to do business with that employer is primarily an economic weapon in that private dispute between sophisticated parties, intended to cause economic harm.” It is true that both leafleting and secondary picketing seek to achieve the same objective, that is to bring economic pressure on the employer.

[46] However, it is the means utilized to achieve that pressure which distinguishes these actions. The public has a right to know the factual background and nature of a labour dispute. Indeed it is often the weight of public opinion which will determine the outcome of the dispute. Information regarding the factual background and the position of the parties may be very properly disseminated by them. For example, this may be achieved by a party purchasing space in newspapers or billboards or by purchasing time for announcements to be made by radio or television. In most labour disputes, it is far more likely that the employer will be able to afford and utilize these means of putting forward its position. Fairness dictates that employees should be able to put forward their position to the public by distributing leaflets in the manner adopted by the appellant in this case.

[47] Yet, with respect, I do not believe that the appellant’s motivation for pursuing the activity is pertinent to the constitutional review of consumer leafleting. The relevant comparison between conventional picketing and consumer leafleting must focus on the respective effects of the two forms of expression and not on the motivations in pursuing the activity. As McLachlin J. observed in RJR-MacDonald, at para. 171:

While this Court has stated that restrictions on commercial speech may be easier to justify than other infringements, no link between the claimant's motivation and the degree of protection has been recognized. Book sellers, newspaper owners, toy sellers ‑‑ all are linked by their shareholders' desire to profit from the corporation's business activity, whether the expression sought to be protected is closely linked to the core values of freedom of expression or not. In my view, motivation to profit is irrelevant to the determination of whether the government has established that the law is reasonable or justified as an infringement of freedom of expression. [Emphasis added.]

Similarly, motivation to bring economic pressure to bear upon the employer is irrelevant to the determination of whether the respondent has established that the restriction is reasonable or justified as an infringement of freedom of expression. Picketing and consumer leafleting have fundamentally different effects. While the former uses coercion and obedience to a picket line to impede public access to an enterprise, the latter attempts to rationally persuade consumers to take their business elsewhere. Consumer leafleting is much more akin to a consumer boycott achieved through radio or newspaper advertisement than it is to conventional picketing.

[48] The Attorney General of British Columbia intervened to defend the legislative restriction on secondary picketing. However this intervener did not consider the very real distinction which exists between picketing and consumer leafleting. The Attorney General noted that both activities share similar attributes, including the presence of persons, and then relied upon the following passage from A. W. R. Carrothers, E. E. Palmer and W. B. Rayner, Collective Bargaining Law in Canada (2nd ed. 1986). At pp. 609‑10 the authors wrote:

Ingredients common to the act of picketing in all jurisdictions appear to be the physical presence of persons called pickets, the conveying of information, and the object of persuasion. The “presence” element may take many forms, from one or two persons, in the vicinity of the entrance of the premises, comparatively indifferent to the outcome of the dispute, to large numbers calculated physically to prevent ingress and egress. . . . The conveying of information may also take many forms, from the use of handbills, arm bands, placards and sandwich boards to sound trucks, and from the recitation of events to the conveying of exhortative messages. The object of persuasion appears to remain constant, to induce a boycott of the picketed operations by employees, customers, suppliers and others on whom the employer is dependent for the successful operation of his enterprise.

In this passage, the authors take note of the constitutive elements of picketing as it has been defined by Canadian legislation and the common law. Such a definition of picketing may indeed be consistent with the provisions of the Code and its interpretation by the Board in this case. Obviously in the absence of a Charter violation, the legislature is entitled to define what constitutes picketing and the Board is entitled to deference in interpreting such a definition. However, whether the definition in the Code is consistent with the common law cannot resolve the question. Rather, the issue in this case is whether the statutory definition of picketing violates the Charter guarantee of freedom of expression.

[49] More appropriate to this issue is the observation of the authors of Collective Bargaining Law in Canada that restrictions on consumer-directed activity are more difficult to justify. They note that leafleting lacks the tortious element which has traditionally been used to justify restrictions on picketing. At pp. 716‑17 they wrote:

Pickets are appealing to the secondary’s employees to breach their employment contracts or collective agreements. Because of the credo of loyalty to the picket line, the probability of these breaches occurring is significant ‑- so also is the probability of the employees of suppliers or customers of the secondary refusing to cross the line. . . . Spillovers which may have serious economic effects on the secondary and others are unavoidable. Many of the possible restrictions and limitations suggested in the previous discussion of production picketing were designed to limit the probability of such consequences. . . .

Limitations on consumer‑directed activity are not as easy to justify. Unlike employee picketing, a consumer boycott does not induce secondary employees to break their employment contracts, nor does it cause suppliers to break their supply contracts. It merely appeals to consumers to make an independent decision to refuse to purchase the offending product. Such an appeal affects demand for the product, and the secondary will be induced to decrease or limit orders for the product. But the union is not coercing an unlawful act, because any person is entitled to make consumption decisions on whatever ground he desires.

A labour picket is different from other means of communication because of the “signal” effect that it can have. . . .

[50] See also J. A. Manwaring, “Bringing the Common Law to the Bar of Justice: A Comment on the Decision in the Case of Dolphin Delivery Ltd.” (1987), 19 Ottawa L. Rev. 413. At pp. 432‑33 the author wrote:

If the Charter protection for freedom of expression has any substance, it must protect the right to speak out on controversial issues such as disputes over wages and working conditions. Sometimes the speech will provoke action. If the speech is peaceful and is not accompanied by any unlawful acts, and if the actions taken as a result of the speech are themselves lawful, it is difficult to justify restraining freedom of expression solely on the basis that some people may agree with the views expressed.

I agree with this position. It follows that I cannot accept the position of the Attorney General that conventional picketing and leafleting are indistinguishable. They are distinct and different activities.

(d) The American Position on Leafleting

[51] The American jurisprudence supports a conceptual distinction between conventional picketing and consumer leafleting and accepts that these two forms of expression raise significantly different constitutional issues. The United States Supreme Court has taken a different approach to freedom of expression and care must be taken not to blindly apply their decisions. However, it is helpful to review the American experience and learning on the subject.

[52] In Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568 (1988), the United States Supreme Court strongly suggested that restrictions on leafleting might violate the First Amendment. The union was distributing handbills to potential customers of mall stores seeking to dissuade them from shopping in the mall until the owner promised that all construction work would be done by contractors paying fair wages. The union was seeking a consumer boycott of the stores, not a secondary strike by their employees. The court recognized that consumer leafleting and picketing raise significantly different constitutional issues and that the prohibition of leafleting pursuant to § 8(b)(4) of the National Labor Relations Act could raise serious questions of its validity under the First Amendment. However, it chose to interpret the prohibition as not including handbilling, holding that there was no clear congressional intent to ban that activity. At pp. 575‑76, the court wrote:

The handbills involved here truthfully revealed the existence of a labor dispute and urged potential customers of the mall to follow a wholly legal course of action, namely, not to patronize the retailers doing business in the mall. The handbilling was peaceful. No picketing or patrolling was involved. On its face, this was expressive activity arguing that substandard wages should be opposed by abstaining from shopping in a mall where such wages were paid. Had the union simply been leafletting the public generally, including those entering every shopping mall in town, pursuant to an annual educational effort against substandard pay, there is little doubt that legislative proscription of such leaflets would pose a substantial issue of validity under the First Amendment. The same may well be true in this case, although here the handbills called attention to a specific situation in the mall allegedly involving the payment of unacceptably low wages by a construction contractor.

That a labor union is the leafletter and that a labor dispute was involved does not foreclose this analysis.

At p. 580 the court wrote:

The loss of customers because they read a handbill urging them not to patronize a business, and not because they are intimidated by a line of picketers, is the result of mere persuasion, and the neutral who reacts is doing no more than what its customers honestly want it to do.

[53] Relying on its previous decision in Babbitt, Governor of Arizona v. United Farm Workers National Union, 442 U.S. 289 (1979), the court held that picketing was “qualitatively ‘different from other modes of communication’” (p. 580). Further, the court quoted with approval the following passage of the concurring reasons of Stevens J. in NLRB v. Retail Store Employees Union, Local 1001, 447 U.S. 607 (1980). At p. 619 he wrote that:

. . . picketing is a mixture of conduct and communication. In the labor context, it is the conduct element rather than the particular idea being expressed that often provides the most persuasive deterrent to third persons about to enter a business establishment. . . . Indeed, no doubt the principal reason why handbills containing the same message are so much less effective than labor picketing is that the former depend entirely on the persuasive force of the idea.

[54] In Bakery Drivers Local 802 v. Wohl, 315 U.S. 769 (1942), Douglas J. in a concurring opinion wrote at pp. 776‑77 that:

Picketing by an organized group is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated. Hence those aspects of picketing make it the subject of restrictive regulation. [Emphasis added.]

This passage was quoted with approval by the Court in Hughes v. Superior Court of California for Contra Costa County, 339 U.S. 460 (1950), at pp. 464‑65, and International Brotherhood of Teamsters, Local 695 v. Vogt, Inc., 354 U.S. 284 (1957), at p. 289. It was also quoted with approval by Stevens J. in NLRB v. Retail Store Employees Union, supra, at p. 619.

[55] This review indicates that conventional picketing can and should be distinguished from many forms of leafleting. The activity of leafleting can be carried out in a permissible manner that is innocuous and appropriate in the labour relations context. Yet no matter how innocuous and valid a method of expression it may be that it would be prohibited by the impugned legislation.

(e) Permissible Leafleting

[56] In deciding whether the consumer leafleting activity in question is acceptable, it will be important to determine whether consumers are able to determine for themselves what course of action to take without being unduly disrupted by the message of the leaflets or the manner in which it was distributed. Consumers must retain the ability to choose either to stop and read the material or to ignore the leafleter and enter the neutral site unimpeded. Did the prospective customer turn away because of the accurate and rational arguments put forward in the leaflets, the persuasive discourse of the leafleter or because of the intimidating manner in which the activity was conducted?

[57] The Board was concerned with the difficulty of distinguishing between picketing and leafleting. At p. 66 this appears:

Although it may initially appear that a clear distinction can be made between both the conduct of leafleting (handing out written material) and the effect of leafleting (the persuasion of consumers, rather than employees or suppliers) from that of picketing, we are not persuaded that, in a labour relations context, such a distinction can be maintained in all circumstances.

I agree that in certain circumstances some forms of leafleting could be considered to be picketing or the equivalent of picketing. For example, if those distributing the leaflets carried placards, or if they were so numerous that they impeded access to and egress from the targeted premises, or if the leaflets were directed towards the workers in those premises rather than customers, then those types of leafleting could constitute or be the equivalent of picketing. However, the leafleting at issue in this case had none of these features.

[58] In this case, the leafleting conformed with the following conditions:

(i) the message conveyed by the leaflet was accurate, not defamatory or otherwise unlawful and did not entice people to commit unlawful or tortious acts;

(ii) although the leafleting activity was carried out at neutral sites, the leaflet clearly stated that the dispute was with the primary employer only;

(iii) the manner in which the leafleting was conducted was not coercive, intimidating, or otherwise unlawful or tortious;

(iv) the activity did not involve a large number of people so as to create an atmosphere of intimidation;

(v) the activity did not unduly impede access to or egress from the leafleted premises;

(vi) the activity did not prevent employees of neutral sites from working and did not interfere with other contractual relations of suppliers to the neutral sites.

Leafleting which complied with these conditions would normally constitute a valid exercise of freedom of expression carried out by lawful means. Yet it would be prohibited by the impugned legislation. It is against this background that the justification of the legislation under s. 1 of the Charter should be considered. The question is whether the complete prohibition of leafleting under the Code which violates the guaranteed right of freedom of expression can be justified under s. 1 of the Charter.

[59] For the purpose of the Oakes test, a legislative objective must not be overstated. It must be accurately and precisely defined so as to provide a clear framework for evaluating its importance, and to assess the precision with which the means have been crafted to fulfil that objective. If the objective is stated too broadly, its importance may be exaggerated and the analysis compromised. See RJR-MacDonald, at para. 144. The characterization of the objective by the respondent and the Attorney General is too broad. If their position were adopted, a wide range of lawful activities could be restricted. If the Code was really seeking to insulate third parties from the harmful effects of a labour dispute, then any effective means of bringing pressure to bear upon third parties could be restricted. Such a proposition is not consistent with s. 64 of the Code, which allows for information to be communicated to the public as a means of gaining support “as to matters or things affecting or relating to terms or conditions of employment”. Rather, the purpose of the legislation is to minimize the harmful effects to third parties which would result from others impeding access to premises or to encourage employees to break their contract of employment. Accordingly, a trade union is allowed to publish letters, issue press releases, take out newspaper advertisements, rent billboards, or distribute leaflets in mailboxes in order to gain public sympathy and support for its position.

[60] The objective of the picketing restrictions must be read in concert with the overall purposes of the Code found at s. 2(1) and which read inter alia as follows:

(1) The following are the purposes of this Code:

(d) to promote conditions favourable to the orderly, constructive and expeditious settlement of disputes between employers and trade unions;

(e) to ensure that the public interest is protected during labour disputes;

The Code does not seek to completely insulate third parties from the effects of labour disputes. Rather it seeks to minimize the impact of industrial conflict on persons who are not involved in the dispute. A restriction on conventional picketing at neutral sites would insulate third parties from the adverse effects of picketing and thereby “minimize the effects of labour disputes on persons who are not involved”. However those persons are not protected from the effects of all activity flowing from a labour dispute. For example, third parties are subject to economic pressures flowing from successful boycott campaigns conducted through the media or any other permissible means. This point is underscored by the 1987 debates on the adoption of the then version of the Code (Debates of the Legislative Assembly, June 10, 1987, at p. 1695):

Mr. Clark: . . . I’ll just give you an example: Canadian Tire in Prince George went on strike. There was a campaign to boycott Canadian Tire. There was picketing at other stores of Canadian Tire. That was ruled not to be allowed by the former Labour Relations Board, so what the union did instead was an extensive boycott campaign that involved things like large 4‑by‑8 signs, almost like election signs, that said “Boycott Canadian Tire”. In my riding of Vancouver East alone there were something like 100 4‑by‑8s up on all the major highways, saying “Boycott Canadian Tire”. Can the minister confirm, then -‑ I think it’s his intention ‑- that those kinds of acts are still legal under this bill, and not prohibited in any way?

Hon. L. Hanson: Yes, that’s also my interpretation.

Proportionality Between the Objective and the Restriction

(a) Rational Connection

[61] The government sought to minimize the impact of the harmful effects of picketing on neutral third parties and the public. In order to achieve this objective, the government enacted ss. 1, 65 and 67 of the Code. While a restriction on conventional picketing activity at neutral sites is rationally connected with the legislative objective, the restriction on leafleting activity is too broad as will be seen from the reasons which follow.

(b) Minimal Impairment

(i) Deference to the Legislature

[62] The present issue arises in a labour context which normally involves competing interests of a complex and sophisticated nature. The respondent and the Attorney General have therefore argued that a degree of deference should be shown to the legislature in finding the proper balance between the interests of labour and management. This argument underlies the judgments of the lower courts which placed the focus on the “compromise” between unions and management inherent in labour legislation. Certainly, this Court has recognized the complex interests involved in labour legislation and has on occasion expressed its reluctance to interfere with the balance struck by the legislator. See Reference Re Public Service Employee Relations Act, at p. 414, and Lavigne, at p. 282. Some academics have also recommended judicial restraint in labour law. See P. C. Weiler, “The Charter at Work: Reflections on the Constitutionalizing of Labour and Employment Law” (1990), 40 U.T.L.J. 117, at pp. 184‑85, and J. M. Weiler, “The Regulation of Strikes and Picketing Under the Charter”, in Litigating the Values of a Nation: The Canadian Charter of Rights and Freedoms (1986), 211, at pp. 241‑42.

[63] Although courts should be hesitant to strike down labour legislation, it does not follow that industrial relations are immunized from Charter review. Just as in any other area where the legislature is called upon to balance competing interests on complex issues, deference should be shown to the political choices of the legislature in labour legislation. However, deference should not deter the courts from determining whether those political choices fall within constitutionally permissible parameters of reasonable alternatives. It has been recognized that appeals to deference based on the balance of competing interests cannot usurp the obligation of the Court to consider the justificatory requirements of s. 1 of the Charter. See Vriend v. Alberta, [1998] 1 S.C.R. 493, at paras. 56‑57 (per Cory J.) and at paras. 126‑42 (per Iacobucci J.), and Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at paras. 85‑86. In RJR-MacDonald, at para. 136, McLachlin J. held that:

As with context, however, care must be taken not to extend the notion of deference too far. Deference must not be carried to the point of relieving the government of the burden which the Charter places upon it of demonstrating that the limits it has imposed on guaranteed rights are reasonable and justifiable. Parliament has its role: to choose the appropriate response to social problems within the limiting framework of the Constitution. But the courts also have a role: to determine, objectively and impartially, whether Parliament's choice falls within the limiting framework of the Constitution. The courts are no more permitted to abdicate their responsibility than is Parliament. To carry judicial deference to the point of accepting Parliament's view simply on the basis that the problem is serious and the solution difficult, would be to diminish the role of the courts in the constitutional process and to weaken the structure of rights upon which our constitution and our nation is founded.

[64] Ultimately, the concept of deference does not relieve the party seeking to uphold the limit on a protected right or freedom from demonstrating that the restriction is reasonable and demonstrably justified under s. 1 of the Charter. In addition, the contextual circumstances of this case must be examined in order to determine the proper degree of deference. See Thomson Newspapers, supra, per Bastarache J. In my view, a number of factors suggest that a deferential approach should not resolve the issue.

[65] First, it was suggested that the legislature acts to mediate among competing economic interests and not as a singular antagonist. As a result, latitude should be given to the legislature’s policy choices. Admittedly, the legislature must be given a broad discretion in its efforts to reach a sensible balance between the interests of the parties involved. However, that balancing must take into account the interests of all parties. In enacting a complete ban on persuasive activity at neutral sites, the legislature might have been concerned with the balance of power between labour and management and the protection of the public in not being unfairly confronted or intimidated by picketing activity. However, the public’s interest in the dissemination of accurate information by lawful means has been overlooked. It has been held that the consumer’s interest in receiving the information could be one of the reasons for striking down restrictions on freedom of expression. See RJR-MacDonald, supra, and Rocket, supra.

[66] Unlike other aspects of industrial relations, leafleting is not strictly confined to labour and management. In the labour relations context, leafleting directed at consumers seeks to persuade the public by the reasons put forward to take a certain course of action as a result of the employer’s treatment of its workers. Whether that appeal occurs during the negotiations regarding working conditions or outside the framework of collective bargaining, the public’s interest as the recipient of the information is evident. It must be recognized and protected so that all citizens, particularly consumers, can make informed choices. See Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at p. 767. Moreover, if the leafleting occurs during a labour dispute over conditions of employment, the public’s influential role in the settlement of the dispute should not be underestimated. In my view, when leafleting is so widely restricted, the public’s interest is not taken into consideration. Consequently, this factor should not be utilized to justify a lower standard of justification under s. 1.

[67] Second, the lower courts showed deference to the legislature on the ground that the leafleting restriction had been enacted as a result of a compromise, “giving unions a greater ability to exert economic pressure in other ways” (14 B.C.L.R. (3d) 162, at p. 190). Neither can this factor be determinative. That a restriction of a fundamental right is part of a particular compromise does not constitute a justification for it. The reason for a particular restriction must relate to the goals of labour legislation and be justified under s. 1 of the Charter. It must be shown that the restriction of the fundamental right furthers the values underlying the compromise. This has not been done.

[68] Third, a restriction on consumer leafleting is not designed to protect a vulnerable group in Canadian society. Businesses whose economic interests may be affected by leafleting are not a vulnerable or disadvantaged group in need of protection. Rather, it is those who are subject to the legislative restriction who form a vulnerable group in Canadian society. See Slaight Communications, supra, at p. 1051, and Edwards Books, supra, at p. 773.

(ii) Appropriate Standard of Review

[69] The present appeal stems from the review of the Board’s reconsideration decision. The Board is a highly specialized tribunal entrusted by the legislature with the authority to administer the Code and apply its general provisions to the circumstances of a labour dispute. It was argued that courts must show a degree of deference to the Board in interpreting labour legislation. There are sound reasons for exercising judicial restraint in those circumstances. See Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369, at para. 57, and International Longshoremen’s and Warehousemen’s Union, Ship and Dock Foremen, Local 514 v. Prince Rupert Grain Ltd., [1996] 2 S.C.R. 432. It has been recognized that where a Labour Board is acting within its jurisdiction its decision can only be overturned if it is patently unreasonable. However where the Board interpreted or applied the Charter the standard of review must be that of correctness. See Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; and Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157.

[70] In the absence of Charter considerations, the statutory interpretation made by the Board is ordinarily entitled to deference provided it is not patently unreasonable. However, if, as it did in this case, the Board applies the Charter in its decision the Court must determine whether the Board’s decision was correct.

(iii) Minimal Impairment in this Case

[71] Do ss. 1, 65 and 67 of the Code limit freedom of expression as little as reasonably possible in order to achieve the legislative objective? “The impairment must be ‘minimal’, that is, the law must be carefully tailored so that rights are impaired no more than necessary” (RJR-MacDonald, at para. 160).

[72] It was argued that the mere presence of union members at the site for the purpose of leafleting is threatening or intimidating for the customers. It was contended that it evokes the same “signal effect” as conventional picketing, thereby impeding public access to the leafleted premises. I cannot accept this argument. There is no doubt that any activity which in fact impedes access to premises, like the “chain” activity at the Langley store, has the same effect as conventional picketing and therefore can be properly regulated and restricted. However, peaceful leafleting by a few individuals has as a general rule been accepted as a lawful means of disseminating information.

[73] The suggestion that today’s consumers will be intimidated by the mere sight of a few individuals distributing leaflets at the entrance to a shopping mall is not convincing. The image of an oversensitive consumer cannot be the standard by which to assess the constitutionality of the activity. Bastarache J. provides a good analogy with regard to Canadian voters. In Thomson Newspapers, at paras. 101 and 128, he wrote:

Canadian voters must be presumed to have a certain degree of maturity and intelligence. . . . I cannot accept, without gravely insulting the Canadian voter, that there is any likelihood that an individual would be so enthralled by a particular poll result as to allow his or her electoral judgment to be ruled by it.

. . . in my view, the government cannot take the most uninformed and naïve voter as the standard by which constitutionality is assessed.

The importance of freedom of expression during labour disputes cannot be overemphasized. Accurate information which is presented in what is generally accepted to be a lawful manner will provide valuable information to members of the public and is thus worthy of constitutional protection. Leafleting is of fundamental importance for workers and has a very real social value. It is apparent that the legislative restriction is overbroad, and cannot be justified under s. 1 of the Charter.

[74] Sections 1, 65 and 67 of the Code operate as a blanket prohibition on any persuasive activity by striking or locked‑out employees at neutral sites. A total prohibition is clearly not carefully tailored to the objective of minimizing the harmful effects to third parties which would result from others impeding access to premises or encouraging employees to break their contract of employment. Rather, the legislation is a “broad sweep that catches more conduct than is justified by the government’s objective” (per McLachlin J. in Committee for the Commonwealth of Canada, at p. 248).

[75] The majority of the Board noted that the definition of “picketing” at s. 1 of the Code was overbroad. They wrote (at pp. 55-56):

What may simply appear to be a location restriction may in fact be a complete bar to the exercise of freedom of expression in a form which has traditionally been enjoyed by all Canadians. It is unreasonable to prohibit all persuasion because some or even much of a particular activity may give rise to prohibited conduct.

Therefore, the definition of picketing is overbroad. It catches more expressive conduct than can be justified by the objectives of restricting secondary picketing. Thus, the statutory line drawn in the definition of picketing includes conduct which is constitutionally protected. The blanket prohibition in the s. 1 definition of picketing is intended to prohibit any persuasive activity at the location of the secondary employer. It is this total prohibition, or this complete ban, which raises the problem of overbreadth because it fails to impair the right “as little as possible”.

The Code provides a single prohibition which encompasses all forms of persuasion including consumer leafleting. Conventional picketing and consumer leafleting are given the same constitutional weight despite the clear distinctions between them. The majority of the Board recognized the differences but was not convinced that the distinction could be maintained in all circumstances. The majority would allow consumer leafleting but only insofar as it is aimed at secondary employers dealing in the struck goods or who are functionally integrated with the primary employer.

[76] The conclusion that leafleting is subject to the same kind of restrictions as picketing was premised on the incorrect assumption that both activities trigger similar effects. The Board’s conclusion cannot be accepted.

[77] In summary, the legislative restriction in the present appeal is the type of blanket prohibition that this Court has indicated will contravene the Charter. In RJR-MacDonald, McLachlin J. stated at para. 163:

As this Court has observed before, it will be more difficult to justify a complete ban on a form of expression than a partial ban: Ramsden v. Peterborough (City), supra, at pp. 1105‑06; Ford v. Quebec (Attorney General), supra, at pp. 772‑73. . . . A full prohibition will only be constitutionally acceptable under the minimal impairment stage of the analysis where the government can show that only a full prohibition will enable it to achieve its objective. Where, as here, no evidence is adduced to show that a partial ban would be less effective than a total ban, the justification required by s. 1 to save the violation of free speech is not established.

Similarly, in the present appeal, it is important to note that the respondent and the Attorney General have not demonstrated that a partial ban, such as a restriction on conventional picketing activity alone, would be less effective in achieving the government objective.

[78] I have found that the definition of “picketing” at s. 1(1) of the Code is overbroad and catches more expressive conduct than is necessary to achieve the legislative objective. Accordingly, with regard to leafleting activity, the requirement of minimum impairment is not met. It is not necessary to proceed to the final stage of the proportionality analysis under s. 1 of the Charter because a “finding that the law impairs the right more than required contradicts the assertion that the infringement is proportionate” (RJR-MacDonald, at para. 175).

C. Conclusion and Remedy

[79] The definition of “picketing” at s. 1(1) of the Code infringes s. 2(b) of the Charter and is not a reasonable limit under s. 1. A violation of a protected freedom engages the application of s. 52 of the Constitution Act, 1982. That section requires the offensive legislation to be struck down “to the extent of the inconsistency”. Following the principles of constitutional remedies stated in the case of Schachter v. Canada, [1992] 2 S.C.R. 679, I would strike down the definition of “picketing” at s. 1 of the Code and suspend the declaration of invalidity for six months in order to allow the legislature to amend the provision to make it conform with the constitutional guarantee of freedom of expression as discussed in these reasons.

VI. Disposition

[80] The appeal is allowed with costs to the appellant throughout. The judgment of the British Columbia Court of Appeal is set aside. Since the labour dispute that gave rise to the present appeal is now moot, there is no need to quash the original Board orders of December 11 and 16, 1992. I find that the definition of “picketing” at s. 1(1) of the Labour Relations Code infringes s. 2(b) of the Charter and cannot be saved under s. 1. The definition of “picketing” is declared to be of no force or effect by reason of s. 52 of the Constitution Act, 1982. The declaration of invalidity is suspended for six months.

[81] I would answer the constitutional questions as follows:

Do ss. 1 (definition of “picket” or “picketing”), 65 and 67 of the Labour Relations Code, S.B.C. 1992, c. 82, limit freedom of expression as guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms to the extent that they prohibit union members from distributing leaflets at secondary sites of the employer in the context of a labour dispute?

Answer: Yes, but only with respect to s. 1 (definition of “picket” or “picketing”).

If the answer to Question 1 is yes, is the limit reasonable and demonstrably justified under s. 1 of the Charter?

Answer: No.

Appeal allowed with costs.

Solicitors for the appellant: Baigent & Jackson, Enderby, B.C.

Solicitors for the respondent KMart Canada Ltd.: Ladner Downs, Vancouver.

Solicitors for the respondent the Labour Relations Board of British Columbia: Arvay Finlay, Victoria.

Solicitors for the intervener the Attorney General of British Columbia: George H. Copley and Jennifer Button, Victoria.

Solicitors for the intervener the Canadian Labour Congress: Sack Goldblatt Mitchell, Toronto.

Solicitors for the intervener the Canadian Civil Liberties Association: Tory Tory DesLauriers & Binnington, Toronto.

Solicitors for the intervener the Retail Council of Canada: Miller Thomson, Toronto.

Solicitors for the intervener the Coalition of B.C. Businesses: Heenan Blaikie, Vancouver.

Solicitors for the intervener Pepsi-Cola Canada Beverages (West) Ltd.: MacPherson Leslie & Tyerman, Regina,

U.F.C.W., Local 1518 v. KMart Canada Ltd., 1999 SCC 650, [1999] 2 S.C.R. 1083

Case Summary

U.F.C.W., Local 1518 v. KMart Canada, [1999] 2 S.C.R. 1083

Cases Cited

Statutes and Regulations Cited

Authors Cited

I. Factual Background

II. Relevant Statutory and Constitutional Provisions

III. Judicial History

IV. Issues

V. Analysis

VI. Disposition

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 5

Legal Tests 1

Legislation 4