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8 Canadian Lab. & Emp. L.J. 1 (2000)

handle is hein.journals/canlemj8 and id is 1 raw text is: Secondary Picketing, Consumer Boycotts
and the Charter
Patrick Macklem*
In this article, based on an earlier presentation, the author considers the treat-
ment by Canadian courts and legislatures of peaceful labour picketing. The author
argues that courts have preserved the right to picket only in an extremely narrow
zone, and that this result is not supported by basic labour law principles or the spir-
it of the Charter The fundamental nature of freedom of expression and association
should provide presumptive protection for picketing, especially in light of the corre-
sponding lack of constitutional protection for private property and freedom of con-
tract. The author points to the liberal treatment of consumer boycotts as further evi-
dence of this anomaly, and ends with a postscript on recent Supreme Court decisions
that fail to decisively break with this tradition.
Canadian regulation of picketing and consumer boycotts in the
context of a labour dispute is perhaps best understood as a tale of
institutions and instruments. Labour boards and the judiciary are the
institutions, and the common law, legislation and Constitution are the
instruments. The tale has a complex story-line, one that challenges
labour boards and the judiciary to relate the common law, legislation
and Constitution to a host of procedural, substantive and jurisdiction-
al issues. But the tale is also an odd one, for despite its complexity, it
does not adequately explain why picketing and consumer boycotts
merit legal regulation at all.
The story begins, as do most legal stories, with the common law.
At common law, picketing in the context of a labour dispute, whether
peaceful or otherwise, initially was comprehended as constituting a
Professor of Law, University of Toronto. The following is a revised version of a
talk given at the Canada - Israel Comparative Labour Law Seminar, held at the
Faculty of Law, University of Toronto on June 11, 1999. 1 am grateful to Sonia
Lawrence for her extensive research assistance.

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