United Food v. Commercial Workers,, 2011 ABQB 415

Court of Queen ’ s Bench of Alberta Citation: United Food and Commercial Workers, Local 401 v. Alberta (Information and Privacy Commissioner), 2011 ABQB 415 Date: 20110630 Docket: 0903 05953 Registry: Edmonton IN THE MATTER OF the Personal Information Protection Act, S.A. 2003, c. P-6.5; AND IN THE MATTER OF the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982, being

Schedule B to the Canada Act 1982 (U.K.) , 1982, C.11; AND IN THE MATTER OF Order P2008-008 of the Office of the Information and Privacy Commissioner, issues on March 30, 2009. Between: United Food and Commercial Workers, Local 401 Applicant - and - Information and Privacy Commissioner Respondent - and - Attorney General of Alberta Respondent _______________________________________________________

Reasons for Decision of the Honourable Madam Justice J. H. Goss _______________________________________________________ I. Introduction.............................................................................................................. Page: 3 II. Facts........................................................................................................................ Page: 3 III. The Relevant Legislation....................................................................................... Page: 4 IV.

Adjudicator’s Decision (Order P2008-008; United Food and Commercial Workers, Local 401 (Re), [2009] A.I.P.C.D. No. 10 (Gauk ) ................................................................. Page: 5 V. The Parties’ Submissions..................................................................................... Page: 7 A. UFCW......................................................................................................... Page: 7 1. Standard of review......................................................................... Page: 7 2. PIPA breaches s. 2(

b) of the Charter ........................................... Page: 7

Section 2(

b) analysis..................................................................... Page: 8

Section 1....................................................................................... Page: 11 B. The Attorney General............................................................................... Page: 14 C. UFCW’s Reply Submissions.................................................................. Page: 17 D. Additional Submissions ......................................................................... Page: 18 VI. Analysis................................................................................................................. Page: 19 A.

Does PIPA infringe s. 2(b)...................................................................... Page: 19 1. Does the recording of the picket line have expressive content ? Page: 19 2. Is the protection of s. 2(

b) removed by virtue of method, location or burden on government?................................................................................. Page: 20 3. Does the purpose or effect of PIPA infringe s. 2 (b)? .............. Page: 23 a. The Adjudicator’s

interpretation of PIPA ’s purpose.... Page: 23 b. Presumption of Constitutionality..................................... Page: 23 i. Publicly available................................................. Page: 25 ii. Journalistic purpose............................................ Page: 26 B. Is the restriction on the Union’s freedom of expression justified under s. 1 of the Charter ?................................................................................................................... Page: 29 1.

Is the objective of PIPA related to a pressing and substantial goal?............................................................................................. Page: 30 2. Are the limiting measures rationally connected to the

objective?..................................................................................... Page: 32 a. Publicly available information......................................... Page: 32 b. Journalism exception....................................................... Page: 33 3. Do the measures chosen impair freedom of expression as little as possible? Page: 33 4. Do the salutary effects of PIPA outweigh its deleterious effects? Page: 34 VII Remedy................................................................................................................. Page: 37 VIII.

Conclusion............................................................................................................ Page: 44 Appendix........................................................................................................................... Page: 45 I. Introduction [ 1 ] The United Food and Commercial Workers, Local 401 (UFCW) seeks judicial review of a decision by an Adjudicator for the office of the Privacy Commissioner under the Personal Information Protection Act , S.A. 2003, c. P-6.5 ( PIPA ).

UFCW alleges that the provisions of PIPPA that prohibit the Union from recording (either by photo or video) its lawful picket-line is an infringement of its s. 2(

b) rights under the Charter [1] . The Attorney General of Alberta is the only participating Respondent in the judicial review. [2] [ 2 ] UFCW filed two expert affidavits in support of their application. One affidavit is sworn by Professor Jeffery M. Taylor, Dean of the Faculty of Humanities and Social Sciences and a professor of Labour Studies at Athabasca University, and deals with the history and purposes of picket-lines. The second is sworn by Professor Robert A.

Hackett, a professor of Communications at Simon Fraser University, and deals with the nature of journalism, the traditional media, and the role of individuals and non-government organizations in public communication. II. Facts [ 3 ] UFCW represents some of the employees at the Palace Casino (the Employer) in West Edmonton Mall. In 2006, collective bargaining between the Union and the Casino broke down and the Union commenced a lawful strike. Union members and supporters picketed at the Casino as permitted under s. 84 of the Labour Relations Code , R.S.A. 2000, c. L-1 ( LRC ).

The Labour Relations Board (LRB) issued three directives, including a picketing protocol that was agreed to by the Union and the employer. The protocol provided for five approved locations for the picket-line at five specified entrances to the Casino, including the immediate vicinity of the main entrance to Palace Casino inside West Edmonton Mall. [3] [ 4 ] In the course of the strike, both UFCW and the employer [4] video-taped and photographed the picket-line and its immediate surroundings. This included persons who crossed the picket-line and who walked into and out of the Casino.

West Edmonton Mall also routinely video-records mall patrons. The Union posted signs in the area of the picketing stating that images of persons crossing the picket line could be placed on its web-site – “www.CasinoScabs.ca”. [ 5 ] The Complainants to the Commissioner included the Vice President of the Employer, who was photographed or video-taped. Two pictures of him were used on a poster displayed at the picket-line, with the text: “This is [x’s] Police Mugshot” and images of his head were used in union newsletters and strike leaflets with captions intended to be humorous.

Another complainant testified that he crossed the picket-line several times to enter the Casino and the Union camera was trained on the entrance. He did not actually ever see a recording of himself entering the Casino, although he had checked the website to see if his image had been posted. A third complainant testified that she was photographed by a still camera at a small concession store next door to the Casino and that she was often recorded by the video camera as she greeted customers at the Casino door.

[ 6 ] The evidence before the Adjudicator was that it was a long-standing, historical practice for both employers and unions to video-tape and take pictures of picket-lines.

Among the purposes for doing so, as submitted by the Union and accepted by the Adjudicator, were: * informing the public and picketing Union members; * dissuading people from crossing the picket line; * acting as a deterrent to violence; * gathering evidence should it become relevant to an investigation or legal proceeding (both of altercations as well as to show long periods of peaceful picketing); * creating material for use as a training tool for Union members; * providing material to other unions for educational purposes; * supporting morale on the picket line with the use of humour; * responding to similar activity on the part of the employer, and * deterring theft of Union property. [ 7 ] The Adjudicator indicated that these purposes also included an underlying purpose (at para. 20): At a more basic level, many of these purposes also promoted the underlying purpose of the strike - that of achieving a resolution to the labour dispute favourable to the Union.

III. The Relevant Legislation [ 8 ] The relevant legislation is attached as an Appendix to these Reasons. [ 9 ] PIPA applies to a variety of non-governmental organizations, including labour unions, unincorporated associations, and corporations. The Act defines personal information as “information about an identifiable individual” (s. 1(1)(k)).

Under the terms of the Act, organizations are permitted to collect, use and disclose personal information under limited circumstances, set out in detail in the Act. [ 10 ] At issue here are two exceptions to the applicability of PIPA – personal information collected, used or disclosed for journalistic purposes and “for no other purpose” (s. 4(3)(c)) and information that is “publicly available” (ss. 14(e), 17(

e) and 20 (j)) as defined in s. 7 of the PIPA regulations, Personal Information Protection Act Regulation , Alta. Reg. 366/2003 (the Regulations). IV. Adjudicator ’s Decision ( Order P2008-008 ; United Food and Commercial Workers, Local 401 (Re), [2009] A.I.P.C.D. No. 10 (Gauk)

[ 11 ] There were two preliminary issues before the Adjudicator. The first was whether she should defer the question of the constitutionality of PIPA to the Labour Relations Board since it had jurisdiction under the Administrative Procedures and Jurisdiction Act , R.S.A. 2000, c. A-3 to decide constitutional questions, while the Commissioner does not. The Adjudicator refused to defer. The second preliminary issue is a major focus of this judicial review application – whether the Act applied because the information collected, used and disclosed by UFCW was for “journalistic purposes” under s. 4(3) (

c) of PIPA. [ 12 ] An issue raised on judicial review, but not before the Adjudicator, was whether the information collected, used or disclosed is publicly available as prescribed by the regulations (ss. 14(e), 17(

e) and 20 (j)).

Section 7 of the Regulations is limited to such things as information in phone books and directories and records held in registries and judicial or quasi-judicial bodies. It does not include references to attendances at public, social or political events. [ 13 ] The Adjudicator set out the issues as: Issue A: Is the Organization collecting, using or disclosing "personal information" as that term is defined in PIPA ? Issue B: If the Organization is collecting, using or disclosing "personal information" as defined in PIPA , is it doing so in contravention of, or in compliance with, section 7(1) of PIPA?

In particular, i. If the Organization is collecting, using or disclosing "personal information" as defined in PIPA , does it have authority to do so without consent, as permitted by sections 14 , 17 and 20 of PIPA? ii. If the Organization does not have the authority to collect, use or disclose "personal information" without consent, is the organization obtaining consent in accordance with

section 8 of the Act ? Issue C: If the Organization is collecting "personal information" as defined in PIPA , is it doing so in contravention of, or in compliance with,

section 13 of PIPA? In particular, is it i. required to provide, and ii providing, notification, before or at the time of collecting personal information, in accordance with

section 13 of PIPA ? Issue D: If the Organization is collecting, using or disclosing "personal information" as defined in PIPA , is the collection, use or disclosure contrary to, or in compliance with, sections 11(1) , 16(1) and 19(1) of PIPA (collection, use and disclosure for purposes that are reasonable)?

Issue E: If the Organization is collecting, using or disclosing "personal information" as defined in PIPA , is the collection, use or disclosure contrary to, or in compliance with, sections 11(2) , 16(2) and 19(2) of PIPA (collection, use and disclosure to the extent reasonable for meeting the purposes)? [ 14 ] UFCW conceded before the Adjudicator that the photos and videos were “personal information” as defined in s. 1 (

k) of PIPA . [ 15 ] The Adjudicator first addressed UFCW’s preliminary issue, whether it could rely on s. 4(3) (

c) of PIPA . UFCW conceded that the Adjudicator had no authority to find the

section contrary to the Charter , but submitted that the Adjudicator should interpret the

section in a manner consistent with the Charter. The Adjudicator held that dissemination to the public of information, including personal information, regarding the strike could be a journalistic purpose, but that the plain language of the

section required that there be no other purpose. She found that there was no other possible

interpretation of the section, rejecting the suggestion, first raised by the Alberta Teachers Association in Alberta Teachers' Assn. (Re) Order P2007-014 , [2008] A.I.P.C.D. No. 28 ( ATA ) that “for no other purpose” be read as referring to an purpose “to defraud or mislead, defame or commit criminal libel” (at para. 16). She held that this suggested

interpretation was inconsistent with the plain meaning of the phrase. [ 16 ] The Adjudicator noted that UFCW had, in its evidence and submissions, agreed that it collected, used and disclosed the pictures and videos for a number of reasons, and further that even if some of those reasons fell within journalistic purposes, the Union had as its underlying purpose the resolution of the labour dispute in its favour.

As a result, the Union’s purpose cannot be said to have been purely journalistic. [ 17 ] The Adjudicator went on to find that the personal information that was collected, used and disclosed for the purpose of a possible investigation or legal proceeding was authorized by ss. 14 (d), 17 (

d) and 20 (

f) and (

m) of PIPA ; that this was a reasonable purpose, and that any collection restricted to this purpose was reasonable. However, UFCW failed to provide notice that this was its purpose and therefore breached s. 13 of the Act. [ 18 ] Having found that some of the personal information collected, used and disclosed was authorized by ss. 14(d), 17(

d) and 20(f), the Adjudicator then considered whether the other information collected, used or disclosed was collected, used or disclosed with consent.

She concluded that none of the complainants had consented, either expressly or impliedly. [ 19 ] In concluding that the Union had failed to give notice that it was collecting the images for the purposes of an investigation or legal proceeding, the Adjudicator noted that if the collection had been continuing, she would have ordered that the Union remove the posters indicating that it intended to post the information it was collecting on its www.CasinoScabs.ca website. [ 20 ] The terms of her order required the Union to cease collecting personal information for purposes other than investigation or legal proceedings, in the absence of consent.

She also ordered the Union to destroy any of the Complainants’ personal information still in its possession collected in contravention of the Act , including any retained personal information of the Casino Vice-President that was placed in the Union's informational materials (posters and newsletters). V. The Parties ’ Submissions A. UFCW 1. Standard of review [ 21 ] UFCW asserts that because the only issue is the constitutionality of the relevant sections of PIPA , the usual standard of review analysis is unnecessary here. On such questions, the standard of review will always be correctness: Dunsmuir v.

New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190. 2. PIPA breaches s. 2(

b) of the Charter [ 22 ] UFCW says that certain provisions of PIPA are overbroad to the extent that they prevent the Union from collecting, using and disclosing personal information already in the public domain for any purpose, including a journalistic purpose. In particular, UFCW argues that PIPA prohibits a union from recording a picket-line in plain view and from publishing the recording in union publications and on union websites.

[23] Further, UFCW suggests that the PIPA exceptions under s. 4(3)(

c) of the Act and s. 7 of the Regulations do not apply to theUnion and therefore infringe its freedom of expression. The journalistic purpose exception in s. 4(3)(

c) includes the phrase “and for noother purpose”. As defined by the Adjudicator, organizations that engage in journalism and have some other purpose will never beincluded within the exception. This, the Union argues, limits the exception’s availability only to the mainstream press. [24] The second exception is for information that is “publicly available” (ss. 14(e), 17(e), and 20(j); “publicly available” is definedin s. 7 of the Regulations quite narrowly to include such information as that found in telephone books, business directories, registries, andjudicial body records.

Because of this limited exception, UFCW says not only can it not video or photograph the picket-line, it cannotdescribe in words in its newsletters or flyers what happens in public if doing so would use or disclose personal information. [25] UFCW urges that these exceptions should be read down to include the circumstances at issue here.

Section 2(

b) analysis [26] In Montreal (City) v. 2952-1366 Quebec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, the Supreme Court of Canada set out athree step analysis to determine whether government action has infringed s. 2(b) (at para. 56): 1. Does the activity have expressive content, thereby bringing it within s. 2(

b) protection? 2. If so, does the method or location of this expression remove that protection? 3. If the expression is protected by s. 2(b), does the purpose or effect of the impugned legislation infringe s. 2(b). See also Irwin Toy Ltd. v. Quebec (Attorney General), (SCC), [1989] 1 S.C.R. 927. [27] UFCW argues that its collection, use and disclosure of the videos and photos has expressive content, as defined in Irwin Toy(at 968-69): "Expression" has both a content and a form, and the two can be inextricably connected. Activity is expressive if it attempts to conveymeaning. That meaning is its content.

Freedom of expression was entrenched in our Constitution and is guaranteed in the Quebec Charterso as to ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, howeverunpopular, distasteful or contrary to the mainstream... We cannot, then, exclude human activity from the scope of guaranteed free expression on the basis of the content or meaning beingconveyed. Indeed, if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within thescope of the guarantee.

Of course, while most human activity combines expressive and physical elements, some human activity ispurely physical and does not convey or attempt to convey meaning. It might be difficult to characterize certain day-to-day tasks, likeparking a car, as having expressive content. To bring such activity within the protected sphere, the plaintiff would have to show that itwas performed to convey a meaning.

For example, an unmarried person might, as part of a public protest, park in a zone reserved forspouses of government employees in order to express dissatisfaction or outrage at the chosen method of allocating a limited resource. Ifthat person could demonstrate that his activity did in fact have expressive content, he would, at this stage, be within the protected sphereand the s. 2(

b) challenge would proceed. [Emphasis added] [28] The Union notes that this is a very broad

interpretation. Further the Supreme Court of Canada has confirmed that photos andvideos convey meaning in R. v. Butler, (SCC), [1992] 1 S.C.R. 452 (at 489-90). Generally, activity that has some form

of expression falls under s. 2(b). [29] However, the Union, in the interests of a complete examination of the issue, raises a contrary decision of this Court inSafeway v. Shineton, 2007 ABQB 773, 444 A.R. 131, a judicial review of a decision by a Commissioner under PIPA. Safeway hadcontacted the complainant’s employer to tell it that the employee had been caught shoplifting. The Commissioner concluded that this waspersonal information that was disclosed in contravention of PIPA. Safeway argued on judicial review that PIPA breached its rights unders. 2(b). Hart J. concluded that this kind of expression was not the kind of expression s.2(

b) was intended to protect. UFCW submits thatthis decision was in error, and that the Chambers judge reached this conclusion without any analysis of whether there was expressivecontent in the disclosed information, whether the method or location of the expression removed the protection, and whether the purposeor effect of the legislation was to limit expression. [30] The Supreme Court of Canada has developed three internal exceptions to s. 2(

b) protection of expression – the methods andlocation of the expression (Montréal (City)) and expression that imposes a significant burden on the government entity at issue (Baier v.Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673). Method relates to expression through means that are not consonant with Charter protection(for example, violence or threats of violence (Montréal (City), at para. 60). Location relates to whether the expression in the particularpublic place conflicts with the purposes which s. 2(

b) is intended to serve (Montréal (City) at para. 74) or the location clearlyundermines the values that underlie the guarantee (Montréal (City) at para. 72). Neither method or location are implicated here, and asUFCW notes, the Union here is not seeking a positive government action within the meaning of Baier (see also Haig v. Canada, (SCC), [1993] 2 S.C.R. 995, at 1035; Delisle v. Canada (Deputy Attorney General), (SCC), [1999] 2 S.C.R.989, at para. 26). [31] In United Food and Commercial Workers, Local 1518 (U.F.C.W.) v.

KMart Canada Ltd., (SCC), [1999] 2S.C.R. 1083 and Retail, Wholesale and Department Store Union, Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8,[2002] 1 S.C.R. 156 the Supreme Court of Canada recognized that picketing includes a wide range of activities in the course of labourdisputes, including expressive conduct that creates social pressure. [32] In KMart the Court recognized the s. 2(

b) interest of labour unions in communicating to the public (at para. 30): It is obvious that freedom of expression in the labour relations context is fundamentally important and essential for workers. In anylabour dispute it is important that the public be aware of the issues. [33] In Pepsi the Court noted (at paras. 27 and 31): In labour law, picketing is commonly understood as an organized effort of people carrying placards in a public place at or near a businesspremises. The act of picketing involves an element of physical presence, which in turn incorporates an expressive component.

Itspurposes are usually twofold: first, to convey information about a labour dispute in order to gain support for its cause from otherworkers, clients of the struck employer, or the general public, and second, to put social and economic pressure on the employer, andoften by extension, on its suppliers and clients... For the purposes of this appeal, we find it unnecessary to define picketing in a detailed and exhaustive manner.

We proceed rather on thebasis that picketing may involve a broad range of activities, from the "traditional" picket line where people walk back and forth carryingplacards, to the dissemination of information through other means. [Emphasis added] [34] Further, the Court recognized that this expressive conduct falls deep within the expression intended to be protected under s.2(b) (at para. 32): Picketing, however defined, always involves expressive action. As such, it engages one of the highest constitutional values: freedom of

expression, enshrined in s. 2(

b) of the Charter. This Court's jurisprudence establishes that both primary and secondary picketing areforms of expression, even when associated with tortious acts: Dolphin Delivery, supra. The Court, moreover, has repeatedly reaffirmedthe importance of freedom of expression. It is the foundation of a democratic society (see R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2;R. v. Keegstra, (SCC), [1990] 3 S.C.R. 697; R. v. Butler, (SCC), [1992] 1 S.C.R. 452). The corevalues which free expression promotes include self-fulfilment, participation in social and political decision-making, and the communalexchange of ideas.

Free speech protects human dignity and the right to think and reflect freely on one's circumstances and condition. Itallows a person to speak not only for the sake of expression itself, but also to advocate change, attempting to persuade others in the hopeof improving one's life and perhaps the wider social, political, and economic environment. [35] UFCW notes that both the purpose and effect of the PIPA provisions are to restrict expression. In Irwin Toy, the SupremeCourt set out the analysis for assessing purpose and effect (at 975-76). That analysis can be summarized as: 1.

The characterization of government purpose must proceed from the standpoint of the guarantee in issue. 2. If the government has aimed to control attempts to convey a meaning either by: a. directly restricting the content of expression or b. by restricting a form of expression tied to content, its purpose trenches upon the guarantee. 3. If it aims only to control the physical consequences of conduct, its purpose does not trench upon the guarantee. 4.

In determining whether the government's purpose aims simply at harmful physical consequences, the question becomes: does themischief consist in the meaning of the activity or the purported influence that meaning has on the behaviour of others, or does it consist,rather, only in the direct physical result of the activity. [36] UFCW submits that PIPA’s purpose is to restrict the content of expression – that is, to control the expression of a particulartype of information, personal information. [37]

Section 3 of PIPA sets out the Act’s objectives as: The purpose of this Act is to govern the collection, use and disclosure of personal information by organizations in a manner thatrecognizes both the right of an individual to have his or her personal information protected and the need of organizations to collect, use ordisclose personal information for purposes that are reasonable. [38] Thus, the Union argues, the Act clearly trenches on the s. 2(

b) guarantee and the analysis must shift to whether the restrictionon freedom of expression can be justified under s. 1 of the Charter.

Section 1 [39] The onus of justifying the limit of a right or freedom rests with the party seeking to uphold the limitation (Irwin Toy at986).The Supreme Court of Canada’s test under s. 1 was set out in R. v. Oakes, (SCC), [1986] 1 S.C.R. 103, and can besummarized as:

1. Is the objective sought to be achieved by the impugned legislation related to concerns which are "pressing and substantial in afree and democratic society? 2.

Are the means chosen by the government proportional to its objective? a. the limiting measures must be carefully designed, or rationally connected, to the objective; b. they must impair the right as little as possible; and c. their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, isnevertheless outweighed by the abridgement of rights. [40] UFCW’s s. 1 analysis focuses on the two exceptions to the application of PIPA – the journalistic purpose exception and thepublicly available exception, and submits that there is no pressing and substantial objective in defining these two exceptions so narrowlythat they exclude the Union’s ability to record the picket line.

In Vriend v. Alberta, (SCC), [1998] 1 S.C.R. 493 theSupreme Court held that where the issue is the Applicant’s exclusion from the legislation, the appropriate question is whether there is apressing and substantial objective to the exclusion (at para. 114). [41] UFCW notes that protection of privacy is important, but argues that to say that PIPA’s purpose as a whole is to protect privacyoverstates the legislative objective. In particular, the Union notes that the Act provides for numerous exceptions, including for thetraditional (or mainstream) media and for individuals.

In fact, the Union notes PIPA’s purpose is to limit the conveyance of personalinformation in certain circumstances by certain persons. [42] In this connection, UFCW notes that the traditional media have additional purposes beyond purely journalistic purposes, likeprofit and editorial comment.

Therefore, it argues, there is no pressing and substantial objective in treating the traditional mediadifferently than others. [43] Moreover, UFCW submits that there is no pressing and substantial objective for narrowly defining what personal informationis “publicly available”, suggesting that there is no reasonable expectation of privacy for information that is in plain view in placesaccessible to the public. [44] UFCW argues that there is no rational connection between the means chosen in the legislation and the legislation’s objective.If PIPA is aimed at protecting personal privacy in certain circumstances, there is no rational connection between protecting individualprivacy and prohibiting the collection, use and disclosure of personal information that is already in public.

In particular, UFCW positsthat there is no reasonable expectation of privacy in public places, relying on the jurisprudence developed in the context of s. 8 of theCharter (search and seizure provision). [45] The Supreme Court of Canada has analyzed the privacy rights of an individual to control images of themselves in Aubry v.Éditions Vice-Versa, (SCC), [1998] 1 S.C.R. 591, and held that freedom of expression, in particular the artisticexpression of a photograph, cannot justify the infringement of the right to privacy entailed in control of one’s own image.

However,UFCW argues that Aubry is distinguishable as it involves the harmonization of the rights to privacy and freedom of expression in aQuebec statute, the Charter of Human Rights and Freedoms, R.S.Q., c. C-12. Alberta does not have a right to privacy in either theCharter or Alberta legislation. [46] The Union argues that there was no reasonable expectation of privacy here, noting the following factors, drawn from R. v.Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579 (at para. 27): 1. The personal information was accurate;

2. The information was already in plain view; 3. The information was where the public has access; 4. At a public demonstration; 5. There were no intimate or lifestyle details or other biographic information other than what the complainants chose to place inpublic view; and 6.

The methods of collecting the information were not obtrusive or offensive, since the images were recorded in the area of thepicket-line - a political public event. [47] Further, both the Employer and West Edmonton Mall recorded the picket-line and therefore the complainants could notreasonably have expected that their images would not be captured. [48] Moreover, UFCW argues the impairment was neither minimal or proportionate.

The tests for minimal intrusion andproportionality have been variously formulated as: * whether the law limits the right “as little as reasonably possible in order to achieve the legislative objective;” (Kmart at para.71) * whether there is proportionality between the salutary effects of the legislative objective and the deleterious effects on the right inquestion. (Dagenais v. CBC, (SCC), [1994] 3 S.C.R. 835 at 889). [49] In these circumstances, the question is whether the positive effects of protecting personal information outweighs the negativeeffects on the Union’s freedom of expression.

UFCW defines this as a contest between freedom of expression and the public interest inpreventing the dissemination of personal information that an individual has already placed in the public realm by attending a public,political event, and concludes that given the lack of a reasonable expectation of privacy in the images, there is no powerful valuejustifying an infringement of the freedom of expression. [50] UFCW argues that in the labour relations context, freedom of expression, in particular the freedom of expression of the non-traditional media, is of fundamental importance in a free and democratic society, and that PIPA’s limitation on expression of informationalready in the public domain does not minimally impair the right and is disproportionate. [51] The Union notes that the Supreme Court has emphasized the importance of freedom of expression as a cornerstone ofdemocratic society (see for example Edmonton Journal v.

Alberta (Attorney General), (SCC), [1989] 2 S.C.R. 1326 at1336). Further, the Court has highlighted the importance of labour expression, in particular, in a number of decisions, including Kmart(para. 25); and Pepsi (paras. 33-35). In Pepsi, the Court held that picketing was a form of protected expression (paras. 80-82) and thatpicketing conveys information and is intended to persuade others. The LRC also reinforces the notion that picketing is intended topersuade others not to do business with the employer. Mockery and shaming are part of the history and purpose of picket-lines (as set outin Prof.

Taylor’s affidavit). [52] The Union goes on to note that the Supreme Court has set out three values underlying s. 2(

b) expression: truth; discourse andparticipation in social and political decision-making; and individual self-fulfillment and self-expression. UFCW submits that all threevalues are at issue here. In regards to truth, the recording of images provides an accurate record for safety and security, to respond toallegations against the Union, to use in Labour Relations Board hearings, to respond to the Employer’s video, to share with other media ifasked, and to contribute to education programs.

In regards to democratic discourse, the recording of picket-line images brings the debateinto the public domain (Pepsi at para. 35; Kmart at para. 73) and further enables the Union to fulfill the persuasive objective of picketing

( Pepsi at para. 27). Further, the expression addresses the historic imbalance between the Employer’s economic power and the vulnerable worker ( Pepsi , para. 34). Moreover, the images were used to boost morale and to communicate with the Union members. [ 53 ] As Professor Taylor noted in his affidavit, historical records of picket-lines and strikes include photos, film and video, and these resources have been used to record significant labour events for educational, instructional, and research purposes.

Expression in the labour context, says UFCW, is highly valued, widespread, and effective means of political expression with strong historical roots engaging core democratic values. [ 54 ] The Union asserts that PIPA , by limiting the journalistic purposes exception to effectively only traditional media, significantly curtails journalistic expression by the non-traditional media who may have other purposes beyond journalism. Further, union journalism is important to democratic debate and to informing the public regarding matters of social and political significance ( Pepsi, para. 35; Kmart , paras. 25, 29-30).

The traditional media may not be interested in the details of a labour dispute, such as who crossed the picket- line, but that information should be available from some source. [ 55 ] Professor Taylor noted in his affidavit that there has been a significant decline in the coverage of labour news in the traditional media. In the end, the effect of the journalism exception in PIPA is that only the traditional media can reproduce a photo of a picket-line when reporting on a strike.

The Union concludes that because the information is in plain view in a public place, there is no powerful value justifying the limitation of the Union’s freedom of expression. B. The Attorney General [ 56 ] The Attorney General argues that PIPA creates an individual’s right to protect personal information when that information is collected, used or disclosed by private parties. The Union’s purpose in collecting and disclosing the complainants’ personal information was found by the Adjudicator to include purposes other than journalism.

The underlying purpose was to achieve a resolution of the strike that was favourable to the Union, in particular by dissuading people from crossing the picket line by threatening to post their images on the Union’s website. [ 57 ] The Attorney General argues that UFCW misreads PIPA when it asserts that the journalistic exception applies only to mainstream, traditional media. Rather, he argues, the Act does not prevent a union from reporting in a newsletter or website on matters of interest to its members or even on matters of wider public interest, unless in doing so, it discloses personal information.

The Attorney General’s written submissions argue: ... the Union’s threat to publicize (and smear) patrons of Palace Casino for its private purpose of inducing them to not cross a picket line illustrates exactly the sort of self-interested interference with privacy that the Act seeks to prevent.

Since the UFCW cannot plausibly claim that it is entitled to interfere with the complainants’ privacy in this way as a matter of constitutional right, it devotes itself to arguing instead that “certain sections of PIPA are contrary to the Charter and that the adjudicator’s Order is contrary to the Charter to the extent that it relies on those sections.” [ 58 ] The Attorney General submits that PIPA protects an individual’s “practical anonymity in public places” and argues that the Union’s reliance on the principle of “reasonable expectation of privacy” is misplaced.

A reasonable expectation of privacy is a concept developed in criminal law within the context of s. 8 of the Charter , prohibiting unreasonable search and seizure. He argues that the Act represents a balance of free expression and individuals’ control of their personal information, and concludes that the Act’s prohibition against the Union collecting people’s personal information to “persuasively threaten them with public shaming” is consistent with the Charter. [ 59 ] The Attorney General submits that the journalistic exception in s. 4(3) (

c) of the Act is appropriate and does not apply to mainstream media exclusively. He notes that the Adjudicator assumed that journalistic purpose could include non-neutral and persuasive content, and that she was open to a non-traditional media source having a journalistic purpose. The Adjudicator, he submits, decided against the Union because it collected personal information for purposes other than journalism. [ 60 ] The Union, the Attorney General argues, does not “attempt to defend its behaviour” or argue that it has a constitutional right

“to invade people’s privacy to get what it wants from them”; rather the Union shifts the argument to whether non-traditional media can ever fall within the exception. The idea that an organization’s remote purposes are relevant to whether they fall within the journalism exception is a false premise. The Attorney General concedes that such a conclusion could be drawn from the Commissioner’s decision in Order P2007-014; Alberta Teachers' Assn. (Re) [2008] A.I.P.C.D.

No. 28 [5] , but submits that the Adjudicator there erred when she concluded that the Alberta Teachers’ Association did not have the authority under the Teaching Profession Act , R.S.A. 2000, c. T-2, to publish articles for purely journalistic purposes, and therefore did not fall within PIPA ’s journalistic exception.

The Attorney General submits that the organizational goals of a body are not relevant, only the immediate purpose of the disclosure of personal information. [ 61 ] The threats of “public exposure and ridicule for crossing the line” is what breaches the Act ; if the Union were to report on a struck employer’s behaviour at a picket line to an interested public, that would likely comply with the Act. [ 62 ] The Attorney General takes further issue with UFCW’s argument that the Act infringes the Charter by limiting its expression in regards to personal information collected in public view.

He notes that the Act is concerned with personal, not confidential, information, and that while personal information may be confidential and confidential information may be personal, the two are different. [ 63 ] In reference to the cases cited by UFCW, the Attorney General distinguishes them. In Pepsi the Supreme Court was balancing the union members’ s. 2(

b) rights with other private rights, as the case concerned secondary picketing. The Court held that picketing is lawful expression no matter where it occurs, unless it involves a recognized criminal or civil wrong (at paras. 73, 74 and 103). The Attorney General argues that this case is not about picketing, but about the Union’s collection, use and disclosure of personal information to support the effectiveness of its picket line.

He submits that s. 3 of the Act provides that an organization may only collect, use and disclose personal information for “reasonable purposes”, and suggests that PIPA is no different than restrictions on expression that were accepted as striking a proper balance with Charter values in Pepsi – for example the tort of inducing breach of contract. The only difference, he submits, is that tort law develops through judicial decisions while PIPA was enacted by the Legislature.

He notes that the Charter does not apply to tort law, although common law courts consider Charter values in developing its doctrines. [ 64 ] The Attorney General, in asserting that PIPA is justified under s. 1 , relies on the Supreme Court of Canada decision in Aubry , suggesting that the Court’s analysis of privacy interests and its balancing of private rights against free expression in non-Charter cases is appropriate to this situation.

He argues that the Supreme Court identified the right to control one’s own image as integral to a right of privacy, and that therefore PIPA reflects a pressing and substantial goal – the right to protect personal information on display in a public place. [ 65 ] Further, the Attorney General submits that PIPA is proportional, rejecting UFCW’s submission that personal information in public view is unworthy of protection. In particular, the Attorney General argues that the Supreme Court’s commentary on the importance of control of one’s own identity conclusively establishes that UFCW’s argument is without merit.

PIPA , he asserts, protects an individual’s right to control their identities from those who would collect, use and disclose their personal information for private purposes. [ 66 ] Moreover, the Supreme Court found no inconsistency between Charter values and constraints on expression in private law, and adopted an approach that treated “labour and non-labour expression in a consistent manner” since there was “no principled ground on which to distinguish union speech” ( Pepsi , at paras. 80 and 82).

The Supreme Court in Aubry balanced the right to control one’s own image with the right to artistic expression, finding in favour of private life. [ 67 ] The Attorney General submits that the public’s interest in being informed is not in issue here since the Union video-recorded people with the announced intention of publishing the images in its Casino Scabs website and for purposes other than evidence gathering.

He submits that PIPA ’s exemption for publishing personal information is broader than the Quebec legislation, since the Quebec law does not permit implicit consent to publication, while PIPA ’s exceptions for journalistic and artistic purposes does. As a result, the Attorney General concludes that the balance struck in PIPA is to prevent private organizations from using others’ personal information for private purposes without consent, and therefore its limitation on free expression is proportionate to the goal of protecting individual privacy. C.

UFCW ’s Reply Submissions [ 68 ] UFCW submits that the Attorney General’s submissions ask the Court to proceed on the basis that PIPA only prohibits expression aimed at dissuading people from crossing a picket line, when in fact PIPA also prohibits other kinds of expression.

[ 69 ] Further, the Adjudicator found that the Union did not fall within the journalistic purpose exception because the Union had many purposes in addition to a journalistic purpose, but the Attorney General ignored this finding. The result of this analysis is that expression for any of these purposes violates PIPA . The Attorney General asks the Court to find that picket line expression is precisely the kind of expression that PIPA is aimed at curtailing, and then distorts the facts by suggesting that the Union threatened to put individual’s images on its website.

However, the Union argues, PIPA is not concerned with threats, but with the collection, use and disclosure of personal information.

Moreover, there was no evidence that UFCW put anyone’s image on their website without consent. [ 70 ] The Attorney General’s focus on this one of many UFCW’s admitted purposes in recording the picket line, the Union argues, is not a substantive response to the Union’s arguments that PIPA limits its freedom of expression and is not justified under s. 1 of the Charter . [ 71 ] UFCW points out that persuasion is the purpose of picketing, a point accepted by the Supreme Court as an important element in freedom of expression in Pepsi , but the Attorney General asks the Court of find that there is something unsavoury about this purpose, even going so far as to suggest that doing so amounts to a tort.

The Union notes that s. 84(1) of the LRC expressly permits picketing for persuasive purposes; it provides that during a strike or lock-out anyone may picket an employer in order to persuade anyone not to enter the employer’s place of business, deal in or handle the employer’s products, or do business with the employer. [ 72 ] UFCW further argues that the Attorney General misses the point of its argument in regards to the journalism exception when he argues that the Union can report on a strike without violating PIPA if it simply abandons its other purposes (persuasion, education, training).

The Union’s purpose in reporting on a strike will always be, at a minimum, an exercise in persuasion aimed at convincing others to support the striking workers and not support the employer.

Therefore, it would be difficult to imagine a circumstance in which a union could fall within the journalism exception. [ 73 ] The Union further submits that the Attorney General focuses on the concepts of “privacy” and “private information”, using them interchangeably with “personal information” and ignoring the Union’s point that PIPA ’s broad provisions are not rationally connected to protecting privacy since it deals with personal information that is not necessarily private. [ 74 ] Further, the Courts have found that there is no reasonable expectation of privacy in not only the criminal context, but also in civil insurance and employment cases involving video surveillance of plaintiffs in public places (presumably such surveillance by an employer falling within the definition of “organization” would run afoul of PIPA as well).

The Union argues that logically if the Courts have found that there is no reasonable expectation of privacy in public places where the issue is surveillance by the state, then there is no reasonable expectation of privacy in public between private parties. The Union points to ss. 12(1)(d), 15(1)(d), and 18(1)(

d) of British Columbia’s Personal Information Protection Act , S.B.C. 2003, c. 63 which provides an exception for personal information collection by observation at a performance, a sports meet or a similar event at which the individual voluntarily appeared and that is open to the public. [ 75 ] UFCW further submits that the decision in Aubry is distinguishable because the Court was balancing two rights protected in the Quebec Charter, privacy and expression; Alberta has no protection for privacy rights at common law, in statute, or in the Charter .

The Union notes that the Aubry decision has been cited 203 times, but that only five of those decisions were outside of Quebec.

Further, those decisions dealt with issues that are irrelevant to the balancing of freedom of expression; twice dealing with intentional infliction of mental distress, once with appropriation of personality and passing off, once rejecting the contention that there was a tort of invasion of privacy and once to distinguish the facts. [ 76 ] While the Charter implicitly provides for the right to privacy in ss. 7 and 8, these sections only apply if there is an infringement of life, liberty or security of the person, or if there is a search or seizure. [ 77 ] The Supreme Court’s comments regarding the expectation of privacy in one’s image must be considered in the context of the facts at issue in Aubry ; the individual’s picture was not taken at a political or public event and at issue was the photographer’s artistic expression.

Moreover, the Court expressly noted that it might have struck the balance differently if the subject of the photo had been engaged in a public activity (at para. 27). D. Additional Submissions [ 78 ] After argument was heard, the Alberta Court of Appeal issued its decision in Leon ’s Furniture Limited v. Alberta

(Information and Privacy Commissioner) , 2011 ABCA 94 . I asked the parties if they wished to make further submissions in light of the Court of Appeal’s decision. [ 79 ] In Leon ’s , the Court of Appeal quashed the Adjudicator’s decision that a furniture store violated PIPA when it recorded the driver’s license number and vehicle license plate of anyone picking up pre-purchased furniture.

The Court held that PIPA reflected a balance between the competing values of the right to protect information and the need to use it, and that the Act did not give predominance to either value. [ 80 ] In its additional submissions, UFCW argued that PIPA protects personal information, whether private or not, and that the balancing of rights is between freedom of expression and the interest in controlling the dissemination of personal information.

Thus, the Union argues, PIPA ’s restrictions are overbroad, because there is no reasonable expectation of privacy for information in plain view in places accessible to the public, there is no rational connection between the provisions at issue and the goal of protecting privacy, and the restrictions do not minimally impair Charter rights and are disproportionate given the importance of labour relations expression and freedom of the press. [ 81 ] UFCW notes that the Court of Appeal held that PIPA imposes a reasonableness requirement on organizations when they collect, use and disclose personal information.

The Union argues that there is no comparable reasonableness requirement in s. 2(

b) of the Charter , and in fact s. 2(

b) protection extends to expression that has little value or is offensive. Further, expression in the context of a labour dispute enhances the values underlying freedom of expression. [ 82 ] The Court of Appeal in Leon ’s indicated that it made no sense for the Adjudicator to find that everyone in the world can write down license plate numbers, but the appellant cannot (at para. 50).

Similarly, the Union argues that the effect of the PIPA provisions in question is to prohibit organizations like the Union from collecting and using information in plain view in public, while individuals and the mainstream media have no similar restrictions. [ 83 ] In response, the Attorney General notes that the Court of Appeal held that a vehicle’s license plate number is not “personal information” for a number of reasons: 1. The license plate number identifies a vehicle, not its owner; 2.

An owner may be indirectly identified through the license plate number, but Leon’s had no access to the database that would do so; and 3. License plates are required by law to be displayed in visible locations for the specific purpose of being recorded by anyone. [ 84 ] The Attorney General argues that it is not merely the public display that governs the Court’s reasoning, but the fact that the license plate is required by law to be displayed.

This, he suggests, does not undermine the connection between a person’s image, which while publicly available remains personal information, and autonomy articulated in Aubry . VI. Analysis A. Does PIPA infringe s. 2(b) [ 85 ] The Supreme Court of Canada set out a three step analysis to determine whether legislation or government action infringes s. 2(b): 1. Does the activity have expressive content?

2. Does the method or location of the expression remove the protection, or does the expression impose a significant burden on the government ? 3. If the expression is protected, does the purpose or effect of the legislation infringe s. 2(b)? ( Montreal (City) and Baier ) 1.

Does the recording of the picket line have expressive content? [ 86 ] While the Attorney General has attempted to define the Union’s activity as “a threat”, as a “smear”, as “self-interested interference with privacy”, and as invading “people’s privacy to get what it wants from them”, he has not directly challenged UFCW’s submission that its recording of the picket line by video and still photography has expressive content. In fact, the Attorney General expressly indicates that the Union’s threats of public exposure and ridicule for crossing the picket line is what breaches PIPA .

That very description reflects that the Union’s activity conveys meaning. As the Supreme Court of Canada indicated in Irwin Toy (at 969) : We cannot, then, exclude human activity from the scope of guaranteed free expression on the basis of the content or meaning being conveyed.

Indeed, if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee. [ 87 ] Moreover, the Supreme Court of Canada has confirmed that photos and videos convey meaning: Butler . [ 88 ] The Adjudicator expressly held that the Union’s purposes included disseminating information about the strike to the union members and to the public (at para. 27).

Further, she found (at para. 26): I agree that a conclusion that an organization is subject to PIPA means that its disclosure of information must not conflict with the restrictions in the Act, and thus might restrict the organization's speech rights insofar as exercise of these rights involves use or disclosure of personal information of third parties. [ 89 ] UFCW brought the Court’s attention to the decision in Safeway v. Shineton in which a judge of this Court held that s. 2(

b) was not intended to protect the type of speech at issue there – Safeway’s report to a person’s employer that Safeway had caught the person shoplifting. The Court in that decision undertook no analysis of whether there was expressive content, concluding only that, “I am not satisfied that the disclosure Safeway made to Co-op is the kind of expression s. 2(

b) of the Charter is meant to protect.” (at para. 44). Nor did he analyse whether the purpose or effect of PIPA infringe s. 2 (b). [ 90 ] Moreover, the kind of speech at issue in Safeway is very different than the speech at issue here. Expression of labour interests in a strike or lock-out and related to picket line activity lie deep within the heart of protected expression.

The Supreme Court has recognized picketing as expressive action ( Pepsi ) and that freedom of expression in the labour relations context is fundamentally important ( Kmart ). [ 91 ] I conclude that the activity of recording the picket line by video and still camera photography has expressive content. 2. Is the protection of s. 2(

b) removed by virtue of method, location or burden on government? [ 92 ] There is no suggestion that the location of the activity conflicts with the purpose of s. 2(b), and it is clear that this is not a situation that imposes a positive obligation on the government. [ 93 ] The Attorney General does not expressly argue that the Union’s method of expression falls outside the purpose of s. 2(b). He

does, however, characterize UFCW’s activity as threats, invasion of privacy, and smears, and from this it may be inferred that the thrustof Alberta’s argument is that these methods of expression are not those contemplated under s. 2(b). [94] The Attorney General further argues that PIPA protects an individual’s practical anonymity in public places and that this is areasonable balance between free expression and an individual’s control of personal information. Therefore, he argues the Act isconsistent with the Charter and Charter values. This argument appears to blend the balancing of interests that is to take place under theanalysis of s. 1 of the Charter with the s.2(

b) analysis of whether the method or location of the expression is consistent with Chartervalues. In my view, the Attorney General’s argument ignores the Supreme Court’s very broad

interpretation of what expression isprotected under s. 2(

b) and that Court’s very narrow drawing of internal exceptions to that protection. [95] In Montreal (City) the Supreme Court noted that while content is always protected, the method (or form) of expressing thecontent may not be (at para. 60): ... this Court has found that violent expression is not protected by the Canadian Charter: Irwin Toy, at pp. 969-70. Violence is notexcluded because of the message it conveys (no matter how hateful) but rather because the method by which the message is conveyed isnot consonant with Charter protection. [96] In R. v.

Keegstra, (SCC), [1990] 3 S.C.R. 697, Dickson C.J. described the breadth of freedom of expression,and noted that the exception for violence did not extend to hate speech, but only to “expression communicated directly through physicalharm”. The exceptions are those in which the mode of expression at issue undermines freedom of expression (at 732): As I have explained, the starting proposition in Irwin Toy is that all activities conveying or attempting to convey meaning are consideredexpression for the purposes of s. 2(b); the content of expression is irrelevant in determining the scope of this Charter provision.

Stated atits highest, an exception has been suggested where meaning is communicated directly via physical violence, the extreme repugnance ofthis form to free expression values justifying such an extraordinary step. Section 319(2) of the Criminal Code prohibits thecommunication of meaning that is repugnant, but the repugnance stems from the content of the message as opposed to its form. For thisreason, I am of the view that hate propaganda is to be categorized as expression so as to bring it within the coverage of s. 2(b). [97] More recently Dechamps J. in Canadian Broadcasting Corp. v.

Canada (Attorney General), 2011 SCC 2, discussed thenarrow exceptions (at para. 37): For either the method or the location of the conveyance of a message to be excluded from Charter protection, the court must find that itconflicts with the values protected by s. 2(b), namely self-fulfilment, democratic discourse and truth finding (City of Montréal, at para.72). The following factors are relevant in this respect: (

a) the historical or actual function of the location of the activity or the method ofexpression; and (

b) whether other aspects of the location of the activity or the method of expression suggest that expression at thatlocation or using that method would undermine the values underlying free expression (City of Montréal, at para. 74). However, theanalysis must not be limited to the primary function of the method of expression or the location of the activity. For example, in ...Committee for the Commonwealth of Canada v. Canada, (SCC), [1991] 1 S.C.R. 139, Ramsden v.

Peterborough(City), (SCC), [1993] 2 S.C.R. 1084, City of Montréal and Greater Vancouver, this Court found that airports, hydropoles, city streets and buses are locations where engaging in certain expressive activities is not inconsistent with the other values s. 2(b)is meant to foster even though their primary function is not expression. [98] The expressive conduct at issue here, including what the Attorney General describes as “threats”, are part of UFCW’s picket-line activity.

As noted by Professor Taylor, picket-lines have historically been part of unions’ ability to build solidarity and convinceothers not to do business with a struck employer.

He notes that picket-line activity has played an important role in creating public policy,and in articulating, advancing, communicating and enforcing union rights “in tandem with the broader rights that we identify with liberaldemocracy.” Thus, UFCW’s recording of persons crossing the picket-line is not inconsistent with freedom of expression, and it is also animportant element of labour expression, reflecting s. 2(b)’s goals of self-fulfilment, participation in social and political decision making,and the communal exchange of ideas. [99] The Attorney General attempts to distinguish the decision in Pepsi, noting that Pepsi was concerned with secondary picketingand that the Supreme Court there balanced union members’ freedom of expression with others’ private rights.

The Supreme Court held

that picketing was lawful wherever it occurs, unless it involved either tortious or criminal activity. The Attorney General argues that this case is not about picketing, or the freedom to picket, but about the collection, use and disclosure of personal information by UFCW to support the effectiveness of its picket-line. As such, he argues, PIPA is a limitation on picketing no different than the restrictions on expression in tort and criminal law.

He suggests that the only difference between tort law and PIPA is that tort law is developed by the Courts, while PIPA was enacted by the Legislature. [ 100 ] First, I do not accept the premise that this case is not about picket-lines. The expressive activity was intimately connected with, and part of, the Union’s picket-line. The evidence before the Adjudicator and the evidence of Professor Taylor is that recording picket- lines, either by film, video, or photograph, is a long-standing practice by both unions and employers.

Second, PIPA is a legislative enactment, a restriction on freedom of expression by the Government of Alberta; torts or actions for breach of contract concern conflict between private individuals. In my view, they are not comparable. Nor is PIPA akin to criminal law.

Third, this kind of balancing of interests in the context of a Charter challenge to legislation is to take place within the s. 1 analysis. [ 101 ] I conclude that threats of ridicule and public shaming, character smears, and invasion of privacy may be “hateful”, but the Union’s method of expression – photographs and videos printed on posters or posted on the internet – are not incompatible with free expression or inconsistent with Charter protections ( CBC at para. 37 ). 3. Does the purpose or effect of PIPA infringe s. 2(b)? a. The Adjudicator ’s

interpretation of PIPA ’s purpose [ 102 ] The Supreme Court of Canada in Irwin Toy indicated that an analysis of the government’s purpose in enacting the impugned legislation must be assessed from the standpoint of the guarantee. Freedom of expression is the foundation of a democratic society, and promotes self-fulfilment, participation in social and political decision making, and the communal exchange of ideas; it protects human dignity and the right to think and reflect freely on one's circumstances.

It allows a person to speak not only for the sake of expression itself, but also to advocate change, attempting to persuade others in the hope of improving one's life and perhaps the wider social, political, and economic environment. [ Pepsi at para. 32] [ 103 ] The analysis, first set out in Irwin Toy , requires the Court to examine whether the legislation directly restricts the content of expression or restricts the form of information based on its content, or whether the restriction is tied to the physical consequences of the activity. [ 104 ] The Court in Irwin Toy has given as an example of this distinction, the contrast between a prohibition against distributing pamphlets and a prohibition against littering.

A rule against handing out pamphlets restricts the manner of expression, aims to control access to a meaning being conveyed and to control the pamphleteer’s ability to convey a meaning. A rule against littering is not a restriction "tied to content". It aims to control the physical consequences of certain conduct regardless of whether that conduct attempts to convey meaning.

It will not necessarily constitute an infringement on free speech. [ 105 ] The purpose of these particular sections of PIPA is to balance the protection of personal information with the need of organizations to collect, use or disclose personal information for reasonable purposes, as described by the Court of Appeal in Leon ’s.

Here we are concerned with a specific kind of personal information, the videos and photos of the picket line, and I have found that these had expressive content; I will not address whether other kinds of personal information are also expressive. [ 106 ] However, as far as the expression at issue here, PIPA , at least as interpreted by the Adjudicator, purposely and directly limits that expression by the Union. She concluded as much at paras. 26 and 27 of her decision. Under her

interpretation, the purpose of the provisions in question is to directly control access to particular meanings: the disclosure of personal information in the exercise of journalistic purpose if the organization has any other purpose, and the disclosure of personal information obtained at a public and political meeting. b. Presumption of Constitutionality

[107] On the basis of her

interpretation of PIPA, the Adjudicator held that the Union had other purposes beyond journalistic purposes,and therefore did not come within the exception of s. 4(3)(c).

This raises the question of the presumption of constitutionality; is there aninterpretation of PIPA that does not restrict UFCW’s expression? [108] The Adjudicator held that PIPA restricted the Union's speech rights insofar as exercise of these rights involved the use ordisclosure of personal information of third parties, that the exception for collection of personal information by the Union for possibleinvestigation or legal proceedings was authorized, but that the exception for journalistic purposes did not apply. Did the Adjudicator errin her

interpretation of the statute? [109] This question was not directly addressed by the parties, as each argued on the basis that the Adjudicator had correctlyinterpreted the legislation. In my view, a full analysis requires me to address this issue. [110] If there are two equally probable purposes for the impugned legislation, and one of these purposes is valid, then the validpurpose is presumed to apply: R.v. Zundel, (SCC), [1992] 2 S.C.R. 731; Slaight Communications v. Davidson, (SCC), [1989] 1 S.C.R. 1038, at p. 1078,; Canada (Attorney General) v. Mossop, (SCC), [1993] 1 S.C.R. 554, at pp. 581-82.

While the presumption of constitutionality was not raised expressly by the Attorney General,[6] it can be inferredfrom his submission that UFCW has misinterpreted PIPA when it complains that the exceptions apply only to traditional media.Therefore it is necessary for me to interpret PIPA and the exceptions in question to determine whether their purpose is to limitexpression. [111] The broad purpose of PIPA was recently described in the recent Court of Appeal decision in Leon’s (at paras 34-35): The Personal Information Protection Act expressly states its overall purposes. This is a key to any

interpretation and application of thestatute. The most important provision is s. 3: 3 The purpose of this Act is to govern the collection, use and disclosure of personal information by organizations in a manner thatrecognizes both the right of an individual to have his or her personal information protected and the need of organizations to collect, use ordisclose personal information for purposes that are reasonable. (Emphasis added) The statute recognizes two competing values: the right to protect information, and the need to use it. ... The statute does not give predominance to either of the two competing values, and any

interpretation which holds that one must alwaysprevail over the other is likely to be unreasonable. A balancing is called for. That balancing is not fully implemented by the otherprovisions of the Act. The balance called for by s. 3 must also be maintained by the Commissioner when assessing what is "reasonable". The issue is not whether privacy rights are important. They are, as demonstrated by the cases discussed by Conrad J.A. at paras.102-114.The Legislature has deemed them to be important by passing the Act.

But their admitted importance does not mean that privacyrights must predominate over all other societal needs, values and interests...The Act recognizes that a balancing of the various interests iscalled for, and it is inconsistent with any suggestion that privacy rights should always predominate over competing values.

The statutecannot reasonably be interpreted in a way that prevents reasonable uses of personal information. [112] Moreover, in assessing whether the purpose of a legislative provision is constitutional, "the court [should] consider only thepurpose of the provision itself and not the broader purpose of the surrounding legislation as a whole" (Delisle at para. 78). [113] The particular provisions in question are exceptions to the prohibition of collecting, using and disclosing personal information.

The Act defines “personal information” very broadly as “information about an identifiable individual” and the parties have agreed that the pictures and video are personal information. The Act applies only to certain types of organizations, including unions, and excludes individuals.

The Act provides that it applies to all organizations under the Act and to all personal information, and prohibits the collection, use and disclosure of personal information without consent, except in limited circumstances. [ 114 ] The relevant circumstances here are the collection, use and disclosure of personal information: 1. for the purposes of an investigation or legal proceeding (ss. 14(d), 17(d), and 20(m)).

In this case, as discussed earlier, the Adjudicator held that the Union’s collection, use and disclosure of personal information were authorized for investigative and legal proceeding purposes, were for reasonable purposes, and that the information collected for this purpose only was reasonable, but that the Union had failed to give notice that this was its purpose; 2. where the information is publicly available, as defined in the Regulations ( ss. 14 (e), 17 (e), and 20 (j); 3. for journalistic purposes and for no other purpose (s. 4(3)(c)). i. Publicly available [ 115 ]

Section 7 of the Regulation defines when “information is publicly available” very narrowly [7] , and none of the circumstances at issue fall within this exception. This question was not raised before, or addressed by, the Adjudicator. However, it is raised by UFCW on the basis that the narrow definition of when information is publicly available infringes the Union’s freedom of expression. It not only limits the Union’s ability to collect images in a public setting, but would prevent the Union from describing in words what happens in public, if that information contained personal information.

Thus its effect restricts freedom of expression. [ 116 ] The Attorney General rejects UFCW’s submissions, saying that PIPA is concerned with personal, not confidential, information, and that the fact that the information is in public view does not render it less worthy of protection.

I note, at this point, that the Attorney General’s position is inconsistent, as in other portions of his submissions he argues that the Union’s activity constituted “invasion of privacy”, that it interfered with “practical anonymity”, that the purpose of PIPA is to protect privacy, and that the balancing of privacy interests and freedom of expression in Aubry was directly on point. [ 117 ] I conclude that both the purpose and effect of the narrow definition of “publicly available” infringes the Union’s rights under s. 2(b).

Its freedom to express itself through video and photos taken at a public, political event is limited by the exclusion of such events from the definition of “publicly available”. ii. Journalistic purpose [ 118 ] The Adjudicator found that the Union collected the personal information for many other purposes besides journalistic purposes. These purposes were listed by her as: * informing the public and picketing Union members; * dissuading people from crossing the picket line; * acting as a deterrent to violence;

* creating material for use as a training tool for Union members; * providing material to other unions for educational purposes; * supporting morale on the picket line with the use of humour; * responding to similar activity on the part of the employer, and * deterring theft of Union property.

As a result of these other purposes, she held that the Union could not rely on s. 4(3)(c), which was limited to “journalistic purpose and for no other purpose”. [ 119 ] The Adjudicator concluded that, given the Union’s evidence that it had these multiple purposes in collecting the information, there was no way to read the provision as applying to these circumstances, unless she were to ignore the words “and for no other purpose.” She rejected the Union’s submission that the words “and for no other purpose” were restricted to a purpose such as intent to defraud or mislead, defame or some other unlawful purpose.

A similar submission had been made in Order P2007-014 ( Alberta Teachers Association ) and rejected by that Adjudicator there because it would be contrary to the ordinary meaning of the phrase. The adjudicator in the ATA decision did not accept that such an

interpretation was necessary to achieve consistency between freedom of expression and PIPA . [ 120 ] The Adjudicator here agreed and concluded that the plain meaning of the

section did not permit her to read the

section in the narrow way suggested by the Union. Moreover, she held that even if such a reading was required to prevent the Act from offending the Charter , as an adjudicator under PIPA , she did not have the jurisdiction to do so. She further concluded that because UFCW had a stake in the outcome of the strike, it had a purpose beyond purely journalistic and could not come within the journalistic purpose exception. [ 121 ] The Adjudicator concluded that because “the Union had a stake in the outcome of the strike activity”, its purpose could not be “purely journalistic” (para. 28).

This suggests that the Adjudicator concluded that “journalistic purposes” must be purely journalistic and neutral or independent. Seemingly then, her

interpretation of the Act is that an organization with a stake in the outcome has less right to express its position, if that expression contains personal information, than an independent media source, even if its expression contains the same personal information. [ 122 ] The Attorney General argues that the journalistic purpose exception applies equally to both traditional and non-traditional media, noting that the Adjudicator was open to the possibility that organizations other than traditional media could come within the exception.

The Attorney General argues that journalistic purpose could include non-neutral, persuasive content. He further rejects the suggestion that an organization’s “remote purpose” is relevant to the application of s. 4(3)(c); only the organization’s purpose in collecting, using and disclosing the personal information is relevant.

I understand the Attorney General’s reference to “remote purpose” as reference to an organization’s purpose for existence and its ultimate goals or objectives. [ 123 ] Most non-media organizations will have a stake or interest in what they are reporting in their newsletters, information pamphlets, or posters. I agree with the Attorney General that an organization’s remote purpose is not relevant, but most such organizations will have a specific, immediate purpose behind their publication of information.

This specific, immediate purpose may affect not only content, but also the purpose for collecting, using and disclosing the personal information. Therefore, I disagree with the Attorney General’s submission that the exceptions apply equally to traditional and non-traditional media, because non-traditional media may well have such additional purposes. [ 124 ] It is important to not expand constitutional analysis further than is necessary to decide the facts at issue. However, sometimes an analogous hypothetical situation can illuminate the issues at stake. Consider the following hypothetical.

[ 125 ] A community league constitutes an organization under PIPA (a not-for-profit organization). Under the Adjudicator’s

interpretation, if the community league were to take a position in relation to supporting or opposing a development proposal within the community and organize a demonstration in support of that position, PIPA would prohibit it from taking photos or recording videos of the demonstration for use in its newsletters, information posters, or advertising because it had a stake in the outcome of the development application. This clearly represents a restriction on freedom of expression. [ 126 ] “Journalistic pur

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