As Albertans flooded into the streets to join the hundreds of thousands of people around the world protesting systemic racism and police brutality, some of us worried about the UCP government’s move to limit our right to engage in peaceful protests by enacting Bill 1, the Critical Infrastructure Defence Act.
The UCP government dismisses such concerns as ridiculous (or words to that effect).
According to Jason Kenney the purpose of Bill 1 is to “strengthen penalties against those who would lawlessly trespass or jeopardize public safety by seeking to block critical public infrastructure, including roadways, railways, and other important infrastructure.”
Perhaps Mr Kenney was having an “earplugs moment” during the debate on Bill 1. Had he been listening he would have understood that Bill 1 goes way beyond this purpose.
As NDP justice critic Kathleen Ganley pointed out: (1) Bill 1 is unnecessary, we already have laws that prevent illegal trespass on public and private property, namely the Trespass to Premises Act and the Petty Trespass Act, (we also have laws against looting and vandalism in the Criminal Code) and (2) Bill 1 is so broadly drafted that it makes it a crime to be present (let alone protest) on unmarked public property without permission.
How? By giving the UCP Cabinet the blanket power to prohibit citizens from entering places it designates as “essential infrastructure.”
Essential infrastructure includes an exhaustive list of facilities, utilities, communications towers, mines, highways, roads, etc. The land on which these things are located and any land used in connection with these things are also essential infrastructure.
And if that isn’t enough Bill 1 contains a “basket clause” that scoops up “a building, structure, a device or other thing prescribed by the regulations” as essential infrastructure.
There are no limitations on Cabinet’s power under the basket clause; no criteria under which Cabinet must whether something is essential infrastructure or not. If Cabinet gets it into its head that the park at the end of my street is a piece of essential infrastructure, then it’s a piece of essential infrastructure.
And if someone enters on essential infrastructure without “lawful right, justification, or excuse” they’re guilty of an offence and liable for a fine of up to $10,000 a day ($25,000 for a second offence) and/or six months in jail.
Let’s take an example.
What if we want to protest in front of the Legislative Building? Do we have to scour the Orders-in-Council to see whether Cabinet passed a regulation designating the Leg to be “essential infrastructure”? If Cabinet did designate the Legislature to be “essential infrastructure” do we have to get permission (from whom?) to make speeches, chant, and wave signs on the front steps? If we don’t have proof of permission to stand in front of the Leg when the police show up, are we and the organizers of the protest going to be slapped with hefty fines and/or jail time?
Or are we still free to exercise our Charter rights of freedom of expression and peaceful assembly?
When the Opposition raised these and other concerns, the UCP told them they were overreacting.
Browse through Hansard and check out why the UCP decided this draconian piece of legislation was its number one priority for this session.*
Justice Minister Doug Schweitzer said the UCP government tabled Bill 1 at “a time of turmoil in Canada. We had lawlessness across this country, where critical infrastructure was being obstructed.” He asked, “are we going to be a country of anarchy or a country of the rule of law?” The “turmoil” he was referring to was the blockades in support of the Wet’suwet’en hereditary chiefs.
Other UCP MLAs riffed on the theme of “virtual anarchy across the land” where “a small group of radicals [held] our economy hostage through illegal blockades and protests.”
Turmoil? Lawlessness? Anarchy? An economy held hostage?
These are inflammatory words rooted in propaganda, not a legitimate justification for the state’s decision to curtail its citizens’ Charter rights.
The UCP denies it’s trying to subvert citizens’ right to protest. Mr Barnes made it “absolutely clear, right here, right now” [that] the right to freedom of speech and to protest does not give anyone the ability to commit illegal acts in the name of that right.”
First, we’re talking about peaceful assembly, a fundamental right under the Charter, not a bunch of anarchists throwing Molotov cocktails.
Second, by letting Cabinet designate anything it sees fit to be essential infrastructure, Cabinet has the power to turn what would otherwise be a legal protest into an illegal protest simply by passing a last minute regulation deeming the meeting place to be “designated infrastructure”. The protesters would not realize they’d entered “designated infrastructure” or that they needed to get permission to be there.
In the words of constitutional lawyer David Khan, Bill 1 criminalizes Albertan’s Charter rights of freedom of thought, belief, opinion, expression, peaceful assembly, and association.**
And for what?
Silencing protesters under Bill 1 won’t raise the price of oil, it won’t bring back oil demand that’s fallen off due to Covid-19, and it won’t create jobs by attracting investment—investors are looking for companies that effectively manage environmental, social and governance (ESG) risks, not those that are located in a province that suppresses citizens’ Charter rights.
Albertans won’t stop protesting in the streets. Some will be arrested and fined and jailed for violating the Critical Infrastructure Defence Act. But they’ll keep protesting until the Act works its way up to the Supreme Court of Canada and is struck down.
And Mr Kenney’s legacy will include the ignominy of trying to curtail our right to peaceful protest when the world was in the streets protesting for justice, freedom and equity.
*Alberta Hansard: search “Bill 1” starting at Feb 4, 2020
**For an excellent overview of the Charter issues please see David Khan’s comments at https://threadreaderapp.com/thread/1268209693370880000.html