In its second major decision on the issue of secondary picketing, the Supreme Court of Canada ruled in January that striking workers have the right to set up pickets at locations other than the employer’s place of business.

As a result of the Court decision, labour laws, including the Alberta Labour Code, must allow for secondary picketing, as long as the conduct on the picket is lawful and non-intimidating. The only limit placed on picketing locations is the personal residences of people involved in the dispute.

"The Supreme Court is very clear on this issue. The right to free speech is a more important value than an employer’s right to make a profit," says AFL President Les Steel. "Workers have the freedom of speech during a strike. The employer cannot stop us from establishing a lawful picket line at any location,"

The court was ruling on a case involving the Retail, Wholesale and Department Store Union (RWDSU) and Pepsi-Cola Canada who were involved in a strike in Saskatoon in 1997. At the time an injunction was place on the union preventing any form of secondary picketing. The union challenged the injunction, winning the case in court. Pepsi-Cola appealed to the supreme court.

The court ruled that bans on picketing based on location were unconstitutional. The court says that, instead, any rules must be focused on regulating the behaviour of the picket line, rather than where that picket occurs.

The decision states that freedom of speech is more important than economic rights. "The law has never recognized a sweeping right to protection from economic harm. … The fact that freedom of expression is protected in the Canadian Charter of Rights and Freedoms, couple with the absence of any economic rights … in the same document, is a clear indication that free speech is near the top of the values that Canadians hold dear."

The Court established a new test for secondary picketing. Picketing is legal, unless it involves "wrongful conduct". Wrongful conduct is defined as an action that "breaches the criminal law or one of the specific torts like trespass, nuisance, intimidation, defamation or misrepresentation."

The Court is confident this more functional test will balance the right to speech and the right of non-participants in the dispute. "It is safe to assert that a wrongful-action based approach will catch most problematic picketing – i.e. picketing whose value is clearly outweighed by the harm done to the neutral third party."

In October of 1999, the Supreme Court ruled in a case involving striking UFCW members that secondary picketing had constitutional protection. The new ruling takes that ruling a step further by striking down all forms of location-based picket bans.

The Alberta government, which currently bans all secondary picketing, was an intervenor in the case, attempting to defend the prohibition.