Top Court Rules Union's Right to Picket Trumps Individuals' Right to Privacy

During a lawful strike that lasted 305 days, both the United Food and Commercial Workers, Local 401 ("Union") and a security company hired by the Palace Casino at West Edmonton Mall in Alberta. videotaped and photographed the picket line near the entrance to  the casino.  The Union posted signs in the area of the picketing stating that images of persons crossing the picket line might be placed on a website called www.casinoscabs.ca. 

 

Several individuals who were recorded crossing the picket line filed complaints with the Alberta Information and Privacy Commissioner under the Personal Information Protection Act of Alberta ("PIPA").  PIPA restricts the collection, use and disclosure of personal information by a range of organizations. 

 

The Vice-President of the casino complained he was photographed or videotaped and that two pictures of him were used on a poster displayed at the picket line with the text, "This is (X's) police mug shot."   Images of his head were also used in Union newsletters and strike leaflets with captions intended to be humorous.  Another complainant, a member of the public, testified that cameras were trained on the entrance to the casino where he would regularly meet friends.  A third complainant testified that she had been photographed and videotaped while working near the casino entrance.  No recordings of the complainants were placed on the website.

 

The privacy commissioner appointed an adjudicator to decide whether the Union had contravened PIPA.  The adjudicator concluded that the Union's collection, use and disclosure of the information was not authorized by PIPA.  On judicial review, PIPA was found to violate the Union's rights under section 2(b) of the Charter of Rights and Freedoms ("Charter") which provides that, "Everyone has the following fundamental freedoms:...(b)  freedom of thought, belief, opinion and expression, including of freedom of the press and other media of communication".  The Alberta Court of Appeal agreed and granted the Union a constitutional exemption from the application of PIPA.  The employer appealed this finding to the Supreme Court of Canada. 

 

The Supreme Court substantially dismissed the appeal.  [Alberta (Information and Privacy Commission) v. United Food and Commercial Workers, Local 401 2013 SCC 62]

 

The Court held that PIPA establishes a general rule that organizations cannot collect, use or disclose personal information without consent.  None of PIPA's exemptions permitted the Union to collect, use and disclose personal information for the purpose of advancing its interests in a labour dispute.  The court held that the central issue in this case was whether PIPA achieved a constitutionally acceptable balance between the interests of individuals and controlling the collection, use and disclosure of their personal information and a union's freedom of expression.  To the extent that PIPA restricted collection for legitimate labour relations purposes, it breached section 2(b) of the Charter and could not be justified under section 1.  Section 1 provides that, "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

 

The court found that the purpose of PIPA is to enhance an individual's control over his or her personal information by restricting the collection, use and disclosure of personal information without that individual's consent.  The objective is to ensure individual autonomy, dignity and privacy, which are significant social values. 

 

However, the court also found that PIPA did not include any mechanisms by which a union's constitutional right to freedom of expression could be balanced with the interests protected by the legislation.  There is a long recognized fundamental importance of freedom of expression in the context of labour disputes.  The court found that PIPA prohibited the collection, use or disclosure of personal information for many legitimate, expressive purposes related to labour relations.  Picketing represents a particularly crucial form of expression with strong historical roots.  The court found that PIPA imposed restrictions on a union's ability to communicate and persuade the public of its cause, impairing its ability to use one of its most effective bargaining strategies in the course of a lawful strike.  This infringement of the right to freedom of expression was disproportionate to the government's objective of providing individuals with control over the personal information that they exposed by crossing a picket line.  It was therefore not justified under section 1 of the Charter. 

 

Given the comprehensive and integrated structure of the statute, the government of Alberta and the Information and Privacy Commissioner requested that the court not select specific amendments, requesting instead that the entire statute be declared invalid so that the Alberta legislature could consider the Act as a whole.  The declaration of invalidity was granted by the court but was suspended for a period of 12 months to give the legislature the opportunity to decide how best to make the legislation constitutionally compliant.  

 

Regards,

 

Blair

Do we have a Privacy Interest in our Garbage?

Residents of Toronto are familiar with the debate that can be generated by garbage, but not necessarily this kind of debate. In a case recently decided, the Supreme Court of Canada held that it was lawful for the police to use evidence of criminal activity taken from the contents of a person's garbage to obtain a warrant to seize the person's house and garage. As a result of the search, the police uncovered evidence that the defendant was operating an ecstasy lab in his home. He was subsequently convicted of several criminal offences.

The defendant appealed his conviction on the basis that by taking the garbage bags from his property, the police breached his right, guaranteed by section 8 of the Canadian Charter of Rights and Freedoms, to be free from unreasonable search and seizure. The Supreme Court of Canada dismissed the defendant's appeal and upheld his conviction. The Court's reasoning was as follows.

Mr. Justice Ian Binnie, writing for the majority of the Court, commented that labels are sometimes misleading. To describe something as "garbage" tends to presuppose the point in issue, namely whether the homeowner had any continuing privacy interest in what he had thrown out. The Court concluded that it is possible that the homeowner might have no further interest in physical possession of the garbage but a very strong interest in keeping private the information contained in the garbage. The question was whether he dealt with the garbage in such a way as to forfeit any reasonable expectation of keeping its contents confidential.

The Court concluded that this is an objective test to be determined considering the following factors:

1. The subject matter of the alleged search - Justice Binnie held that the subject matter is not simply garbage. He observed that residential waste includes an enormous amount of personal information about what is going on in our homes. The Court agreed with counsel for the Canadian Civil Liberties Association that a garbage bag may more accurately be described as a bag of "information" whose contents paint a fairly accurate and complete picture of a householder's activities and lifestyle. According to the Supreme Court, many of us may not wish to disclose those things to the public generally or to the police in particular. As a result, it concluded that the defendant had a continuing direct interest in the "information" that was in his garbage.

2. Concealing illegal objects - The Court held that the issue ought to be framed in terms of privacy of the area or thing being searched and the potential impact of the search on the person being searched, and not in terms of the nature or the identity of the concealed items. The seized garbage bags contained a lot of personal items other than drug making paraphernalia. Accordingly, the physical search was not confined to evidence of criminal activity, but to other activity as well.

3. Subjective expectation of privacy - The Court held that this is not a high hurdle - obviously, subjectively the defendant expected that the contents of the garbage bags would remain private.

4. Objective expectation of privacy - The Court held that the defendant had no objective expectation of privacy because the garbage was put out for collection in a customary location, it was at or near the property line, there was no manifestation of any continuing assertion of privacy or control (such as a locked receptacle) and the police took the bags to search for information as part of a continuing criminal investigation. However, it held that apart from the key issue of abandonment, the circumstances favoured the defendant.

5. The place where the search occurred - The essence of the defendant's complaint was the intrusion by the police into activities taking place inside his home rather than the fact that the police invaded the air space at the foot of his garden by reaching across the lot line for the bags. Accordingly, the Court concluded that the implication of focusing privacy protection is on people not places. But because the garbage at the property line was accessible to passers by, the Court found that the physical intrusion by the police was relatively peripheral.

6. Whether the subject matter of the search was in public view - The garbage bags were in plain view, but their contents were not.

7. Whether the subject matter of the search had been abandoned - Clearly the defendant intended to abandon his proprietary interest in the physical objects themselves. The question is whether he had a reasonable and continuing privacy interest in the information which the contents revealed to the police.

8. Whether the information was already in the hands of third parties - The Court held that it was not necessary to defer a finding of abandonment until the garbage had been picked up by garbage collectors because this step did not depend on any act of the defendant and would add little in the way of protection.

9. Was the police conduct intrusive in relation to the privacy interest - Given that the act of abandonment occurred prior to the police gathering the garbage bags there was no privacy interest in existence at the time of the police intervention which therefore did not constitute an intrusion into an existing privacy interest.

The Court found that having regard to all of these factors, that the defendant had abandoned his privacy interest in the contents of the garbage bag when he placed them at his property line for collection. The taking of the bags did not constitute a search and seizure within the scope of section 8 of the Charter and the evidence found by the police was admissible.

Regards,

Blair