Sep 10/99 : Links to and Globe & Mail article on Supreme Court Decisions on Leafleting

Last Thursday the Supreme Court of Canada ruled that workers from a unionized Kmart store should be allowed to hand out leaflets at non-unionized Kmart stores urging customers to boycott Kmart. The court made a clear distinction between so-called "secondary picketing" and leafleting, declaring that leafleting is a form of expression protected under the Charter of Rights and Freedoms and should be allowed.

Due to the similarities in the nature of the union's activities and the issue of so-called "secondary picketing", this case will likely be a key reference for both sides in the upcoming appeal of the Daishowa v. Friends of the Lubicon case. Supporters who are interested in reading the whole cases can find them on the web at:

The United Food and Commercial Workers deserve our thanks for pursuing the right to leaflet for all workers, and for helping to protect the right to freedom of expression which is so often endangered in Canada.

Union activists can hand out leaflets, Supreme Court rules

Locked-out workers were stopped from approaching Kmart shoppers

Freedom of expression includes the right to distribute leaflets at work sites, the Supreme Court of Canada ruled yesterday.

In giving British Columbia six months to amend legislation restricting leafleting, the court said it is hard to imagine a right more important to a democratic society than free expression.

"The vital importance of the concept cannot be overemphasized," Mr. Justice Peter Cory wrote for a 7-0 majority. "Representative democracy as we know it today - which is in a great part the product of free expression and the discussion of varying ideas - depends on its maintenance and protection."

It said free expression is nowhere more vital than in the workplace. "A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being," Judge Cory wrote.

The legislation struck down yesterday prohibited workers at two K mart Canada Co. stores from distributing leaflets at some of the chain's other, non-unionized outlets.

Members of the United Food and Commercial Workers, Local 1518, undertook the leafleting after they had been locked out of their jobs for six months.

The leaflets, titled "Attention K Mart Shoppers!!!," urged consumers to boycott the stores over the Christmas period and shop at competing retailers.

The chain successfully sought an injunction from the provincial labour board. The board ordered the union to cease its leafleting, citing a provincial law regulating picketing activities.

Yesterday, the Supreme Court ruled that by lumping leafleting in with picketing, the law was unconstitutionally broad.

"The suggestion that today's consumers will be intimidated by the mere sight of a few individuals distributing leaflets at the entrance to a shopping mall is not convincing," Judge Cory said.

"It is obvious that freedom of expression in the labour relations context is fundamentally important and essential for workers," he said. "In any labour dispute, it is important that the public be aware of the issues …. Indeed, it is often the weight of public opinion which will determine the outcome of the issue."

The vulnerability of individual workers and the inherent inequality in their relationship with management - particularly in the retail sector - is well known, the court said.

"It follows that workers, particularly, those who are vulnerable, must be able to speak freely on matters that relate to their working conditions," it said.

In a statement released yesterday, Tom Kukovica, the Canadian director of the UFCW, praised the Supreme Court decision.

"It is clear that workers everywhere will gain from this ruling," he said. "The fundamental right of all Canadians to communicate freely is substantially reinforced, and the rights of working people are demonstrably strengthened."

In a companion decision released yesterday, involving a labour dispute in New Brunswick, a 7-0 majority led by Mr. Justice Frank Iacobucci again concluded that union members had every right to distribute leaflets. It said they would only run afoul of the law if their leafleting was intended to intimidate citizens or disturb the peace.

In the B.C. case, Judge Cory said leafleting is a time-honoured form of expression.

"It is inexpensive, and may be the only form of expression to which many individuals or groups have access in order to influence members of the public," he said.

Consumers confronted with a leaflet have a clear choice to either accept it and boycott the business being targeted, or to ignore it and continue on unmolested, the court said.

"Leafleting does not have the same coercive effect as a picket line, and does not in any significant manner impede access to or egress from premises," Judge Cory wrote.

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