[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.

[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:

[7]               The Adjudicator indicated that these purposes also included an underlying purpose (at para. 20):

[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).

[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:

[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).

[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.

[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 the Union and therefore infringe its freedom of expression. The journalistic purpose exception in s. 4(3)(c) includes the phrase “and for no other purpose”. As defined by the Adjudicator, organizations that engage in journalism and have some other purpose will never be included 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 defined in s. 7 of the Regulations quite narrowly to include such information as that found in telephone books, business directories, registries, and judicial body records. Because of this limited exception, UFCW says not only can it not video or photograph the picket-line, it cannot describe 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.

[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 a three step analysis to determine whether government action has infringed s. 2(b) (at para. 56):

[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):

[28]           The Union notes that this is a very broad interpretation. Further the Supreme Court of Canada has confirmed that photos and videos convey meaning in R. v. Butler, 1992 CanLII 124 (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 in Safeway v. Shineton, 2007 ABQB 773, 444 A.R. 131, a judicial review of a decision by a Commissioner under PIPA. Safeway had contacted the complainant’s employer to tell it that the employee had been caught shoplifting. The Commissioner concluded that this was personal information that was disclosed in contravention of PIPA. Safeway argued on judicial review that PIPA breached its rights under s. 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 that this decision was in error, and that the Chambers judge reached this conclusion without any analysis of whether there was expressive content in the disclosed information, whether the method or location of the expression removed the protection, and whether the purpose or 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 and location 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 particular public place conflicts with the purposes which s. 2(b) is intended to serve (Montréal (City) at para. 74) or the location clearly undermines the values that underlie the guarantee (Montréal (City) at para. 72). Neither method or location are implicated here, and as UFCW notes, the Union here is not seeking a positive government action within the meaning of Baier (see also Haig v. Canada, 1993 CanLII 58 (SCC), [1993] 2 S.C.R. 995, at 1035; Delisle v. Canada (Deputy Attorney General), 1999 CanLII 649 (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., 1999 CanLII 650 (SCC), [1999] 2 S.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 labour disputes, 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):

[33]           In Pepsi the Court noted (at paras. 27 and 31):

[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):

[35]           UFCW notes that both the purpose and effect of the PIPA provisions are to restrict expression. In Irwin Toy, the Supreme Court set out the analysis for assessing purpose and effect (at 975-76). That analysis can be summarized as:

[36]           UFCW submits that PIPA’s purpose is to restrict the content of expression – that is, to control the expression of a particular type of information, personal information.

[37]           Section 3 of PIPA sets out the Act’s objectives as:

[38]           Thus, the Union argues, the Act clearly trenches on the s. 2(b) guarantee and the analysis must shift to whether the restriction on freedom of expression can be justified under s. 1 of the Charter.

[39]            The onus of justifying the limit of a right or freedom rests with the party seeking to uphold the limitation (Irwin Toy at 986).The Supreme Court of Canada’s test under s. 1 was set out in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, and can be summarized as:

[40]           UFCW’s s. 1 analysis focuses on the two exceptions to the application of PIPA – the journalistic purpose exception and the publicly available exception, and submits that there is no pressing and substantial objective in defining these two exceptions so narrowly that they exclude the Union’s ability to record the picket line. In Vriend v. Alberta, 1998 CanLII 816 (SCC), [1998] 1 S.C.R. 493 the Supreme Court held that where the issue is the Applicant’s exclusion from the legislation, the appropriate question is whether there is a pressing 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 privacy overstates the legislative objective. In particular, the Union notes that the Act provides for numerous exceptions, including for the traditional (or mainstream) media and for individuals. In fact, the Union notes PIPA’s purpose is to limit the conveyance of personal information in certain circumstances by certain persons.

[42]           In this connection, UFCW notes that the traditional media have additional purposes beyond purely journalistic purposes, like profit and editorial comment. Therefore, it argues, there is no pressing and substantial objective in treating the traditional media differently than others.

[43]           Moreover, UFCW submits that there is no pressing and substantial objective for narrowly defining what personal information is “publicly available”, suggesting that there is no reasonable expectation of privacy for information that is in plain view in places accessible 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 individual privacy and prohibiting the collection, use and disclosure of personal information that is already in public. In particular, UFCW posits that there is no reasonable expectation of privacy in public places, relying on the jurisprudence developed in the context of s. 8 of the Charter (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, 1998 CanLII 817 (SCC), [1998] 1 S.C.R. 591, and held that freedom of expression, in particular the artistic expression 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 a Quebec statute, the Charter of Human Rights and Freedoms, R.S.Q., c. C‑12. Alberta does not have a right to privacy in either the Charter 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):

[47]           Further, both the Employer and West Edmonton Mall recorded the picket-line and therefore the complainants could not reasonably 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 and proportionality have been variously formulated as:

[49]           In these circumstances, the question is whether the positive effects of protecting personal information outweighs the negative effects on the Union’s freedom of expression. UFCW defines this as a contest between freedom of expression and the public interest in preventing 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 value justifying 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 information already 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 of democratic society (see for example Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326 at 1336). 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 that picketing conveys information and is intended to persuade others. The LRC also reinforces the notion that picketing is intended to persuade others not to do business with the employer. Mockery and shaming are part of the history and purpose of picket-lines (as set out in 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 and participation in social and political decision-making; and individual self-fulfillment and self-expression. UFCW submits that all three values are at issue here. In regards to truth, the recording of images provides an accurate record for safety and security, to respond to allegations against the Union, to use in Labour Relations Board hearings, to respond to the Employer’s video, to share with other media if asked, and to contribute to education programs. In regards to democratic discourse, the recording of picket-line images brings the debate into 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.

[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:

[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.

[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).

[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:

[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.

[85]           The Supreme Court of Canada set out a three step analysis to determine whether legislation or government action infringes s. 2(b):

[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) :

[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):

[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.

[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 thrust of 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 a reasonable balance between free expression and an individual’s control of personal information. Therefore, he argues the Act is consistent with the Charter and Charter values. This argument appears to blend the balancing of interests that is to take place under the analysis of s. 1 of the Charter with the s.2(b) analysis of whether the method or location of the expression is consistent with Charter values. In my view, the Attorney General’s argument ignores the Supreme Court’s very broad interpretation of what expression is protected 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 the content may not be (at para. 60):

[96]           In R. v. Keegstra, 1990 CanLII 24 (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 physical harm”. The exceptions are those in which the mode of expression at issue undermines freedom of expression (at 732):

[97]           More recently Dechamps J. in Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, discussed the narrow exceptions (at para. 37):

[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 convince others 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 liberal democracy.” Thus, UFCW’s recording of persons crossing the picket-line is not inconsistent with freedom of expression, and it is also an important 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 picketing and 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).

[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.

[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.

[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 an interpretation 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 or disclosure of personal information of third parties, that the exception for collection of personal information by the Union for possible investigation or legal proceedings was authorized, but that the exception for journalistic purposes did not apply. Did the Adjudicator err in 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 correctly interpreted 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 valid purpose is presumed to apply: R.v. Zundel, 1992 CanLII 75 (SCC), [1992] 2 S.C.R. 731; Slaight Communications v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, at p. 1078,; Canada (Attorney General) v. Mossop, 1993 CanLII 164 (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 inferred from 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 limit expression.

[111]      The broad purpose of PIPA was recently described in the recent Court of Appeal decision in Leon’s (at paras 34-35):

[112]      Moreover, in assessing whether the purpose of a legislative provision is constitutional, "the court [should] consider only the purpose 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:

[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”.

[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:

[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 purpose” is not defined in the Act, nor did the Adjudicator undertake to define the term. She did, however, make some comments that reflect what she understood to be included within journalistic purposes:

[127]      Professor Hackett, UFCW’s communication expert, defines journalism (at para. 5-6 of his affidavit) as:

[128]      Professor Hackett’s affidavit goes on to discuss the increasingly porous line between journalism as a business and journalism as a process, activity or society-centric process. In the latter there is an emphasis on the social and political functions of journalism – “such as creating public space for information exchange and interaction, or maintaining social cohesion.” (at para. 14).

[129]      In keeping with the presumption of constitutionality, if it is possible to interpret legislation in a way that accords with the Charter and the Constitution, that interpretation is to be preferred. I find that the Adjudicator erred when she concluded that the Union could not have had a journalistic purpose, and no other purpose, because it had a stake in the outcome of the strike about which it was reporting. Based on Professor Hackett’s definition, it is possible to interpret “journalistic purpose” as including the following purposes listed by the Adjudicator:

[130]      Moreover, creating material for use as a training tool for Union members and providing material to other unions for educational purposes, falls within information exchange and interaction and maintaining social cohesion discussed by Professor Hackett.

[131]      Three other purposes listed by the Adjudicator – acting as a deterrent to violence; deterring theft of Union property; and responding to similar activity on the part of the employer – all come within the purpose of gathering evidence should it become relevant to an investigation or legal proceeding, a purpose she found was authorized under sections 14(d), 17(d), and 20(f) and (m) of the Act. In my view, both deterrent functions are a side-effect of gathering evidence for an investigation or legal proceeding, and providing the Union’s side of the events in response to the employer’s recording of events, also logically falls within these sections.

[132]      Thus, I conclude that journalistic purpose can include persuasion, editorial comment, humour and education. However, the definition of “journalistic purposes” should not be drawn too broadly. I find it doubtful that the poster with “mug-shot” images of the Vice-President of the Casino displayed at the front entrance of the Casino was for “journalistic purposes”. Moreover, there was evidence that the Union indicated that it would post the pictures and video it was recording on its web-site, “CasinoScabs.ca”. While journalistic purpose may include persuasion, I find that this use goes beyond persuasion, approaching coercion. Casino employees and members of the public were told that if they crossed the picket-line, their images would be displayed on a website describing them as “scabs”, perhaps making them the subject of ridicule and derision.

[133]      What if the journalistic purpose for the collection, use and disclosure of personal information is in furtherance of another purpose? For example, a development decision sought by the organization, a legislative initiative promoted by the organization, or the resolution of a labour dispute in the organization’s favour. As noted by the Adjudicator, s. 4(3)(c) clearly states that an organization must have no purpose other than journalistic in collecting, using and disclosing personal information. The effect of this section is to limit journalistic expression if the organization has any other purpose. I agree with the Adjudicator that this is the plain and ordinary meaning of the provision, and that there is no other possible interpretation. The suggestion that the provision be read as referring to no unlawful purposes cannot be sustained by the actual language of the section.

[134]      Thus I conclude that while journalistic purpose should be interpreted more broadly than that found by the Adjudicator, the end result is the same.  UFCW had other purposes beyond journalistic purposes in collecting and disclosing the personal information, including obtaining a favourable resolution of the strike and using threats and ridicule to persuade people to not cross the picket-line. These do not come within the “journalistic purpose” exception in PIPA and, as asserted by the Attorney General, falls within the kind of expressive activity PIPA was intended to prohibit.

[135]      I conclude that the purpose of these exceptions in PIPA was to limit expression of personal information by organizations, including unions, where that expression includes personal information, even if one of its purposes, but not the only purpose, was journalistic.

[136]      Alberta bears the onus of justifying the limit of a right or freedom (Irwin Toy at 986). The Supreme Court of Canada’s test under s. 1 was set out in Oakes and can be summarized as:

[137]      Alberta, through its Attorney General, has lead no evidence to support its arguments justifying the limitations on freedom of expression contained in PIPA. Its written submissions and oral argument focussed primarily on the Union’s purpose in dissuading people from crossing the picket-line, arguing that this was a reasonable limitation on the Union’s right to free expression.

[138]      The Attorney General argued that PIPA has a pressing and substantial goal, relying on the Supreme Court of Canada’s decision in Aubry. In Aubry, an arts magazine published a photo of a young woman sitting on the steps of a building without her consent. The photo was taken in a public place. The Supreme Court described the issues as a balancing of the right to privacy under s. 5 of the Quebec Charter with the right to freedom of expression protected by s. 3 of the Quebec Charter.  The Court concluded that the right to one’s image was an element of the right to privacy under s. 5 of the Quebec Charter, noting (at paras. 52 and 53):

[139]      The Attorney General argues that this establishes a pressing and substantial goal in protecting personal information on display in a public place.

[140]      There are two flaws in the Attorney General’s arguments on this point. First, the Quebec Charter has an express right to privacy. Alberta does not. There are privacy rights in the Canadian Charter in ss. 7 and 8, but they are only implicated if there is an infringement of life, liberty or security of the person, or if there is a search or seizure.

[141]      Secondly, PIPA, as the Attorney General points out, is not concerned with private information, but with personal information. Some personal information may be private, but that is not the same thing as saying that PIPA provides a right to privacy.

[142]      Moreover, the Quebec Charter enjoys quasi-constitutional status as human rights legislation: see Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27, [2000] 1 S.C.R. 665 at paras. 27-28; Globe and Mail v. Canada (Attorney General), 2010 SCC 41, [2010] 2 S.C.R. 592 (at para. 29). Such statutes are to be interpreted differently, see Quebec (Commission des droits de la personne et des droits de la jeunesse) at para. 29:

[143]      PIPA, however, is regulatory and does not establish human rights; it regulates the collection, use and disclosure of personal information, and in doing so limits the freedom of expression of some, but not all. For example, individuals would not be prevented from collecting, using and disclosing the personal information at issue here, nor would the traditional media.

[144]      PIPA’s general objective has a pressing and substantial goal, as stated in Leon’s – the need to balance the right to protect information with the need to use it. The question here is whether there is a pressing and substantial goal in the narrow exceptions to the Act’s application that limit the Union’s right to record a picket-line taking place in public and to use and disclose those images for purposes other than journalistic ones.

[145]      UFCW submits that when the issue is the Applicant’s exclusion from legislation, the question is whether there is a pressing and substantial objective to the exclusion (Vriend). In other words, is there a pressing and substantial objective in defining:

[146]      In Vriend, the Supreme Court was dealing with legislation that excluded a certain group from human rights protection; here the exceptions are part of a legislative balance of two competing interests. I do not find that the decision in Vriend is applicable.

[147]      I conclude that there is a pressing and substantial concern at stake here. PIPA’s goals are to strike a balance between protecting personal information with organizations’ needs to use such information. The exclusions for publicly available information and for journalistic purposes are part of that balancing. The question of whether the exceptions are too narrow goes to whether the means chosen to meet that objective are proportional.

[148]      UFCW argues that the exception for publicly available information, limited essentially to published directories and the like, has no rational connection to the legislation’s objective. It notes that if PIPA is aimed at protecting individual privacy in certain circumstances, there is a rational connection between that objective and the infringement of some freedom of expression. But if the prohibition is against organizations’ collecting, using and disclosing personal information already in the public sphere, there is no rational connection. The Union notes that the Courts have found that there is no reasonable expectation of privacy in public places, and that thus no privacy to be protected.

[149]      The Attorney General’s response is first that personal information is not necessarily private, and secondly that the doctrine of reasonable expectation of privacy is only relevant to criminal law under s. 8 of the Charter.

[150]      The concept of reasonable expectation of privacy originated in criminal jurisprudence dealing with search and seizure. However, it has also been applied in civil cases by insurers and employers (see for example: Amalgamated Transit Union Local No. 569 v.

[151]      UFCW submits that the complainants did not have a reasonable expectation of privacy when crossing the picket-line, applying the factors set out in Patrick (at paras. 26-27). The information the Union gathered was in plain view in a place to which the public normally has access; the information does not include intimate details of the complainants’ lifestyles or biographic information; nor was the information confidential records that had never been in the public domain; and the information was obtained in the vicinity of a picket-line – a political public event.

[152]      The Attorney General argues that there is some right to “practical anonymity” in public places and that the legislation rationally prevents private parties from using others’ private information for their own purposes.

[153]      The Attorney General further argues that the Supreme Court’s commentary on the significance of the control of one’s own identity in Aubry disposes of the Union’s argument on this point, suggesting that PIPA protects individuals’ control of their identities “against those who would collect, use and disclose their personal information for private purposes”.

[154]      I have already found that the Supreme Court’s decision in Aubry is distinguishable. While the Supreme Court’s commentary on the value of protecting the control of one’s own image and the relationship between that protection and autonomy is instructive, the Court was balancing a right to privacy with freedom of expression, not ascertaining whether there was a rational connection between regulatory legislation and restricting expression in the context of a labour dispute and a picket-line.

[155]      I agree that the complainants had no reasonable expectation of privacy. They were at not just a public place, but a public demonstration with important political and social implications. There is no rational connection between protecting privacy when the individuals in question are in public view. There is no right to “practical anonymity”. Further, PIPA does not prevent individuals or media from taping or photographing the people at the picket-line. That distinction alone invalidates the rational connection alleged by the Attorney General.

[156]      I find that there is no rational connection between protecting personal information and excluding public, political demonstrations, like the picket line, from the definition of “publicly available”.

[157]      I conclude, however, that there is a rational connection between protecting privacy interests and prohibiting an organization from collecting, using or disclosing personal information because the organization has additional purposes beyond a journalistic purpose. Section 4(3)(c) attempts to balance the right to control personal information with the reasonable need to use that information. The Legislature chose to limit the exception to organizations that had a journalistic purpose; whether its restriction to that purpose and no other is the least intrusive and is proportionate falls to be considered in the remainder of the s. 1 analysis.

[158]      Although the measures chosen must impair the right as little as is reasonably possible in light of the legislative objective, the choice of where to draw the line need not be perfect. In RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, McLachlin J., as she then was, noted that “[i]f the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor the objective to infringement...” (at para. 160). However, she continued, “on the other hand, if the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail.”

[159]      I conclude that the impairment is not minimal. The narrow definition of “publicly available information” protects information in public view, and in which there is no reasonable expectation of privacy. The British Columbia’s Personal Information Protection Act strikes the balance by permitting collection, use, and disclosure of personal information collected by observation at a performance, a sports meet or a similar event at which the individual voluntarily appears, and that is open to the public (ss. 12(1)(d), 15(1)(d) and 18(1)(d)). PIPA has no exception for personal information collected at a public event, including a public, political event.

[160]      Moreover, personal information is not protected any further by prohibiting an organization with both a journalistic purpose and some other purpose from collecting, using and disclosing it, but not prohibiting an organization with only a journalistic purpose. This merely favours some organizations over others. Regardless of the prohibition on organizations with a journalistic purpose and some other additional purpose, the personal information could be collected, used and disclosed by another organization with only a journalistic purpose.

[161]      Further, the requirement that an organization’s only purpose be journalistic is an extreme, almost draconian, limitation on freedom of the press. Its impact is that an organization that has both a journalistic purpose and an underlying social or political goal that it wishes to promote and communicate journalistically will be prevented from communicating personal information, like videos and photos of a political demonstration. I note that there are similar provisions in Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (ss.4 and 7) and in the British Columbia Personal Information Protection Act (s. 3(2)(b)). Quebec, however, has handled it differently in An Act respecting the protection of personal information in the private sector, R.S.Q., c. P‑39.1. The exception for journalistic purposes in s. 1 provides:

[162]      The recordings of the picket-line, by video and camera, are integral parts of the picket-line.  One of the purposes of picketing is to dissuade people from crossing the picket-line, by both providing information about the labour dispute and by mocking and attempting to shame people who cross the line to do business with the employer, as replacement workers, customers, or suppliers. The recordings accomplish both. As noted by Professor Taylor workers have engaged in picketing to communicate, educate and persuade. The picket line has been their most valuable tactic to maintain solidarity, to deter strikebreaking, bringing the dispute to the public’s attention, dissuading the public from doing business with the employer, and eliciting support from the broader labour movement and the public. Professor Taylor notes that the internet has expanded the scope and nature of the picket-line to generate global solidarity and create “cyber-picket-lines”. Mockery and shaming have been part of strike and picket-line expression since at least the 1890's.

[163]      In Pepsi, the Supreme Court noted (at paras. 27 and 31):

[164]      Moreover, the Supreme Court has noted that expression in the labour relations context is of vital importance. In Pepsi, the Court noted (at paras. 33-35):

[165]      Again, the Attorney General relies on the decision in Aubry as determinative. I note that the Supreme Court indicated that the balancing process in Aubry was dependent on context, and that the right to privacy entailed in the control of one’s own image may in other circumstances be curtailed where there is a public interest. In Aubry, the Court held that artistic expression did not justify infringement of the Quebec Charter’s right to privacy, but noted that the public interest might prevail where the person in the image is in a public place and is incidental to the photo, rather than the subject. The Court further suggests that a photograph of someone in a crowd at a sporting event or a demonstration, where “an individual’s own action, albeit unwitting, accidentally places him or her in the photograph” would not be an infringement of the privacy rights. Moreover, public interest in being informed may take precedence where the subject is engaged in public activity or has gained notoriety or finds himself in a high-profile role in a matter within public domain.

[166]      UFCW argues that expression in the labour context engages all of the values underlying freedom of expression – seeking and attaining truth, democratic discourse and participation in social and political decision-making, and individual self-fulfillment and human flourishing (Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640 at para. 47). In particular the Union notes that for the purposes of seeking truth, it recorded the picket-line to have an accurate record; to assist democratic discourse by providing information to members and the public; and in terms of individual self-fulfillment, the record assisted employees in defining and articulating their common interests and elicit public support in order to redress the power imbalance between employer and workers. One of the major purposes of the communication at issue was to engage the public in social and political decision-making. Picket-lines, according to Professor Taylor, have been effective at engaging the public in pressuring employers and government to resolve labour disputes (citing in particular the Gainers strike).

[167]      The Union also stresses the importance of freedom of the press as part of freedom of expression. The Supreme Court in R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477 noted that freedom of the press is not restricted to the mainstream media (at para. 40):

[168]      I note, however, in the National Post decision, the Court was dealing with whether there should be a constitutional immunity given to journalists to protect their sources. The Court concluded that the s. 2(b) right did not extend to provide such immunity and required a case by case analysis. The Court continued in para. 40 to say:

[169]      Thus, while it is clear that alternative media are protected by s. 2(b), one must still consider the context.

[170]      UFCW relies on the affidavits of Professor Hackett who explains that union journalism is important in facilitating democratic debate, and of Professor Taylor who describes union journalism’s import both historically and currently. Professor Taylor describes how unions have enhanced internal methods of communication, using such things as newsletters and strike bulletins, and indicates that labour journalism has become more important as the traditional media has decreased its coverage of labour issues.

[171]      Even if the impairment was minimal, it is not proportionate. The salutary effects of protecting personal information is minimal where the individual has chosen to be at a public, political event, and where individuals and the media could take the photographs and video without similar restriction.

[172]      The deleterious effects on the Union’s freedom of expression are severe. Under PIPA the Union cannot collect, use and disclose the information in its newsletters and leaflets for journalistic purposes, because it has other additional purposes.

[173]      Further, it cannot use the information it collected to mock “scabs” and the employer. The Adjudicator considered this use to be similar in nature to political satire, but even if this use is merely an adult version of “schoolyard teasing”, Alberta has not established that such a restriction is justified in a free and democratic society.

[174]      The Union, in its Originating Notice, sought a declaration that ss. 4(3)(c), 7(1), 8, 11, 13(1), 14, 16, 17, 19, 20 and 34 of PIPA and s. 7 of the PIPA Regulation must be construed and applied in a manner consistent with the Alberta Bill of Rights, RSA 2000, c. A-14. It did not pursue this in its written or oral submissions, and therefore I will not address this portion of the application. The Union also sought relief under s.2(d) (freedom of association) of the Charter, but this was also not addressed in submissions, and therefore I will not address the question of whether PIPA breaches s. 2(d).

[175]      The Supreme Court of Canada in Schachter v. Canada , 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679 set out the courts’ available remedial options when it has found that impugned legislation breaches the Charter (at para. 25):

[176]      Reading in was discussed by the Court in Schachter (at paras. 52, 54-55):

[177]      Reading down was also addressed in Schachter (at para. 58):

[178]      A constitutional exemption is a further remedy considered by the courts. In Hutterian Brethern of Wilson Colony v. Alberta, 2006 ABQB 338, 398 A.R. 5, aff’d 2007 ABCA 160 LoVecchio J. noted that a constitutional exemption is only available when a declaration of invalidity has been suspended (at para. 36-37):

[179]      Our Court of Appeal in Cunningham v. Alberta (Minister of Aboriginal Affairs and Northern Development), 2009 ABCA 239, 457 A.R. 297 has recently commented on when it is appropriate to suspend a declaration of invalidity, citing Schachter (at para.80 ):

[180]      The Union seeks the following other declarations:

[181]      I have found that:

[182]      Flowing from those findings is the conclusion that the Adjudicator’s decision must be quashed to the extent that it relies on the impugned provisions of PIPA. I therefore quash Order P2008-008 of the Information and Privacy Commissioner except for:

[183]      I further grant a declaration that the phrase "and for no other purpose" in section 4(3)(c) of PIPA violates the freedom of expression protected under section 2(b) of the Charter, that this violation is not demonstrably justified under section 1 of the Charter; and this portion of section 4(3)(c) of the Act is therefore of no force or effect.

[184]      The Union’s proposes two possible remedies for the breach occasioned by the narrow definition of”publicly available” in s. 7 of the PIPA Regulation. The first is to strike down the section, and the second is to read into the Regulation a provision that personal information is “publicly available" if it is collected, used or disclosed by a trade union that is:

[185]      Simply striking down s. 7 of the Regulation would not accomplish the purpose of addressing the limitation on freedom of expression, as the provision is under-inclusive. Striking down the section would extend, not limit, the limitation on expression of personal information. However, reading-in raises the problems discussed in Schachter, Hunter v. Southam, and Rocket – achieving some precision without usurping the legislature's role to fill in the gaps. As I have noted, the British Columbia legislature chose to extend the definition of publicly available to personal information collected at a performance, a sports meet or a similar event at which the individual voluntarily appeared and that is open to the public. The Alberta Legislature might make a more narrow choice, perhaps limited to public political demonstrations, for example.

[186]      Further, to read into the s. 7 definition of publicly available an exception for trade unions recording and publishing picket-line activity is more like a constitutional exemption. It attempts to preserve legislation that has an unconstitutional effect on some individuals, but is valid in most cases. A constitutional exemption, however, is only available when a declaration of invalidity has been suspended.

[187]       A temporary suspension of a declaration of invalidity may be warranted when the legislation was found to be unconstitutional because of under-inclusiveness, and therefore striking down the legislation would result in the deprivation of benefits from deserving persons without benefiting the individual whose rights have been violated.

[188]      I find, therefore, that it would be appropriate to issue a declaration that section 7 of the Regulation is in violation of the freedom of expression protected under section 2(b) of the Charter, and this violation is not demonstrably justified under section 1 of the Charter, to the extent that it prohibits a trade union from:

[189]      Further, s. 7 is therefore declared to be of no force or effect, but the declaration of invalidity will be suspended for 12 months. To protect the rights of trade unions, a constitutional exemption will be applied to the above circumstances during the term of the suspension, such that a trade union will not be prohibited from:

[190]      I conclude that the declaration sought by the Union regarding ss. 7(1), 8, 11, 13(1), 14, 16, 17, 19, 20, and 34 of PIPA is unnecessary in light of the above declarations.

[191]      Accordingly, I grant U.F.C.W.’s application for judicial review.

[192]      The parties may speak to costs within 90 days of the issuance of this decision.