RWDSU v. Dolphin Delivery Ltd.. [1986] 2 S.C.R. 573: Picketing involves some form of expression and enjoys Charter protection unless the action includes violence, threats of violence or other unlawful acts.

Appellant was the federally certified bargaining agent for the locked out employees of Purolator, an Ontario based courier. Prior to the lockout, respondent made deliveries for Purolator in its area and afterwards, for Supercourier, a company connected with Purolator. Appellant applied to the British Columbia Labour Relations Board for a declaration that respondent and Supercourier were allies of Purolator in their dispute with appellant. Such a finding would have rendered the picketing of respondent's business premises lawful, and consequently would have affected its business in that its collective agreement provided that its employees' refusal to cross a lawful picket line was not a violation of the agreement or rounds for disciplinary action or discharge. When the Board declined to hear the application for want of jurisdiction, the labour relations of the appellant being within federal jurisdiction, the legality of appellant's proposed picketing then fell for determination under the common law because the Canada Labour Code was silent on the issue. No picketing occurred at respondent's premises as respondent was (page 574) granted a quia timet injunction which was upheld on appeal. At issue here is whether secondary picketing in a labour dispute is protected as freedom of expression under s. 2(b) of the Charter and accordingly not the proper subject of an injunction to restrain it.

Held: The appeal should be dismissed.

Per Dickson C.J. and Estey, McIntyre, Chouinard and Le Dain JJ: All picketing involves some form of expression and enjoys Charter protection unless some action on the part of the picketers alters its nature and removes it from Charter protection. Charter protection of this freedom does not encompass violence, threats of violence or other unlawful acts. The picketing at issue, although intended to bring about economic pressure and to induce the common law tort of breach of contract, was protected by the Charter.

Freedom of Expression (page 583)

As has been noted above, the only basis on which the picketing in question was defended by the appellants was under the provisions of s. 2(b) of the Charter which guarantees the freedom of expression as a fundamental freedom. 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.

The importance of freedom of expression has been recognized since early times: see John Milton, Areopagitica; A Speech for the Liberty of Unlicenc'd Printing, to the Parliament of England (1644), and as well John Stuart Mill, "On Liberty" in On Liberty and considerations on Representative Government (Oxford 1946), at p. 14:

If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.

And, after stating that "All silencing of discussion is an assumption of infallibility", he said, at p. 16:

Yet it is as evident in itself, as any amount of argument can make it, that ages are no more infallible than individuals; every age having held many opinions which subsequent ages have deemed not only false but absurd; and it is as certain that many opinions now general will be rejected by future ages, as it is that many, once general, are rejected by the present. Nothing in the vast literature on this subject reduces the importance of Mill's words. The principle of freedom of speech and expression has been firmly accepted as a necessary feature of modern democracy. The courts have recognized this fact. (page 584)

For an American example, see the words of Holmes J. in his dissent in Abrams v. United States, 250 U.S. 616 (1919), at p.630:

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition.... But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

Prior to the adoption of the Charter, freedom of speech and expression had been recognized as an essential feature of Canadian parliamentary democracy. Indeed, this Court may be said to have given it constitutional status. In Boucher v. The King, [1951] S.C.R. 265, Rand J., who formed a part of the majority which narrowed the scope of the crime of sedition, said, at p. 288:

There is no modern authority which holds that the mere effect of tending to create discontent or disaffection among His Majesty's subjects or ill-will or hostility between groups of them, but not tending to issue in illegal conduct, constitutes the crime, and this for obvious reasons. Freedom in thought and speech and disagreement in ideas and beliefs, on every conceivable subject, are of the essence of our life. The clash of critical discussion on political, social and religious subjects has too deeply become the stuff of daily experience to suggest that mere ill-will as a product of controversy can strike down the latter with illegality. A superficial examination of the word shows its insufficiency: what is the degree necessary to criminality? Can it ever, as mere subjective condition, be so? Controversial fury is aroused constantly by differences in abstract conceptions; heresy in some fields is again a mortal sin; there can be fanatical puritanism in ideas as well as in mortals; but our compact of free society accepts and absorbs these differences and they are exercised at large within the framework of freedom and order on broader and (page 585) deeper uniformities as bases of social stability. Similarly in discontent, affection and hostility: as subjective incidents of controversy, they and the ideas which arouse them are part of our living which ultimately serve us in stimulation, in the clarification of thought and, as we believe, in the search for the constitution and truth of things generally.

In Switzman v. Elbling, [1957] S.C.R. 285, where this Court struck down Quebec's padlock law, Rand J. again spoke strongly on this issue. He said, at p. 306:

But public opinion, in order to meet such a responsibility, demands the condition of a virtually unobstructed access to and diffusion of ideas. Parliamentary government postulates a capacity in men, acting freely and under self-restraints, to govern themselves; and that advance is best served in the degree achieved of individual liberation from subjective as well as objective shackles. Under that government, the freedom of discussion in Canada, as a subject-matter of legislation, has a unity of interest and significance extending equally to every part of the Dominion. With such dimensions it is ipso facto excluded from head 16 as a local matter.

This constitutional fact is the political expression of the primary condition of social life, thought and its communication by language. Liberty in this is little less vital to man's mind and spirit than breathing is to his physical existence. As such an inherence in the individual it is embodied in his status of citizenship.

In the same case, Abbott J. said, at p. 326:

The right of free expression of opinion and of criticism, upon matters of public policy and public administration, and the right to discuss and debate such matters, whether they be social, economic or political, are essential to the working of a parliamentary democracy such as ours.

He went on to make extensive reference to the words of Duff C.J. in Reference re Alberta Statutes, [1938] S.C.R. 100, at pp. 132-33, strongly (page 586) supporting what could almost be described as a constitutional position for the concept of freedom of speech and expression in Canadian law, and then said, at p. 328:

Although it is not necessary, of course, to determine this question for the purposes of the present appeal, the Canadian constitution being declared to be similar in principle to that of the United Kingdom, I am also of opinion that as our constitutional Act now stands, Parliament itself could not abrogate this right of discussion and debate. The power of Parliament to limit it is, in my view, restricted to such powers as may be exercisable under its exclusive legislative jurisdiction with respect to criminal law and to make laws for the peace, order and good government of the nation.

It will be seen at once that Professor Peter W. Hogg, at p. 713 in his text, Constitutional Law of Canada (2nd ed. 1985), is justified in his comment that:

Canadian judges have always placed a high value on freedom of expression as an element of parliamentary democracy and have sought to protect it with the limited tools that were at their disposal before the adoption of the Charter of Rights. The Charter has now in s. 2(b) declared freedom of expression to be a fundamental freedom and any questions as to its constitutional status have therefore been settled.

The question now arises: Is freedom of expression involved in this case? In seeking an answer to this question, it must be observed at once that in any form of picketing there is involved at least some element of expression. The picketers would be conveying a message which at a very minimum would be classed as persuasion, aimed at deterring customers and prospective customers from doing business with the respondent. The question then arises. Does this expression in the circumstances of this case have Charter protection under the provisions of s. 2(b), and if it does, then does the injunction abridge or infringe such freedom? (page 587)

The appellants argue strongly that picketing is a form of expression fully entitled to Charter protection and rely on various authorities to support the proposition, including Reference re Alberta Statutes, supra; Switzman v. Elbling, supra; the American cases of Thornhill v. Alabama, 310 U.S. 88 (1940) (per Murphy J., at p. 95); Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287 (1941), (per Black J., at p. 302), and various other Canadian authorities. They reject the American distinction between the concept of speech and that of conduct made in picketing cases, and they accept the view of Hutcheon J.A. in the Court of Appeal, in adopting the words of Freedman C.J.M. in Channel Seven Television Ltd. v. National Association of Broadcast Employees and Technicians, [1971] 5 W.W.R. 328, that "Peaceful picketing falls within freedom of speech".

The respondent contends for a narrower approach to the concept of freedom of expression. The position is summarized in the respondent's factum:

4. We submit that constitutional protection under section 2(b) should only be given to those forms of expression that warrant such protection. To do otherwise would trivialize freedom of expression generally and lead to a downgrading or dilution of this freedom.

Reliance is placed on the view of the majority in the Court of Appeal that picketing in a labour dispute is more than mere communication of information. It is also a signal to trade unionists not to cross the picket line. The respect accorded to picket lines by trade unionists is such that the result of the picketing would be to damage seriously the operation of the employer, not to communicate any information. Therefore, it is argued, since the picket line was not intended to promote dialogue or discourse (as would be the case where its purpose was the exercise of freedom of expression), it cannot qualify for protection under the Charter. (page 588)

On the basis of the findings of fact that I have referred to above, it is evident that the purpose of the picketing in this case was to induce a breach of contract between the respondent and Supercourier and thus to exert economic pressure to force it to cease doing business with Supercourier. It is equally evident that, if successful, the picketing would have done serious injury to the respondent. There is nothing remarkable about this, however, because all picketing is designed to bring economic pressure on the person picketed and to cause economic loss for so long as the object of the picketing remains unfulfilled. There is, as I have earlier said, always some element of expression in picketing. The union is making a statement to the general public that it is involved in a dispute, that it is seeking to impose its will on the object of the picketing, and that it solicits the assistance of the public in honouring the picket line. Action on the part of the picketers will, of course, always accompany the expression, but not every action on the part of the picketers will be such as to alter the nature of the whole transaction and remove it from Charter protection for freedom of expression. That freedom, of course, would not extend to protect threats of violence or acts of violence. It would not protect the destruction of property, or assaults, or other clearly unlawful conduct. We need not, however, be concerned with such matters here because the picketing would have been peaceful. I am therefore of the view that the picketing sought to be restrained would have involved the exercise of the right of freedom of expression.

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