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Alberta’s Bill 1: The Legal Questions Around Jason Kenney’s Protester Law

If passed, individual protesters could face fines of up to $25,000 per day.

EDMONTON — On Tuesday, Jason Kenney’s United Conservative Alberta government tabled its first bill of the spring session — Bill 1, the Critical Infrastructure Defence Act.

If voted into law, the bill would dictate sweeping penalties for anyone who gathers on what the government defines as “critical infrastructure.”

“Over the last number of weeks, we’ve seen growing lawlessness across the country, pushing our railway lines to grind to a halt,” Alberta Minister of Justice Doug Schweitzer said. “This is simply unacceptable. This is a mockery of our democratically founded country. So we’re now taking decisive action to respond to this.”

The bill is likely targeted at recent rail blockades in solidarity with Wet’suwet’en hereditary chiefs’ opposition to the Coastal GasLink pipeline. During the bill’s tabling Tuesday, Kenney called the protests a “mockery of the principle of rule of law.”

While CN and CP rail, as well as certain ports and other areas blockaded, have already been obtaining court injunctions to arrest demonstrators, the new Alberta bill would jack up penalties and enforcement for demonstrations in the province.

Individuals could face fines of up to $10,000 and $25,000 for first and subsequent offences, as well as possible prison time of up to six months. Corporations involved in protests could face fines of up to $200,000.

But could this bill come into conflict with existing Charter of Rights and Freedoms rights to freedom of speech and assembly in public spaces?

Well, it’s complicated.

What is “critical infrastructure” in this context?

On Tuesday, Kenney and Schweitzer defined a laundry list of public and privately owned sites that could qualify as “critical infrastructure,” including roads, railways, pipelines, oil refineries, telecommunications facilities, dams, bridges and associated construction sites for these areas.

“It’s important for us to maintain competency across our province,” Schweitzer said. “That we are going to remain open for business, that we’re going to make sure that we protect these important aspects of our infrastructure.”

“Over the last number of weeks, we’ve seen growing lawlessness across the country, pushing our railway lines to grind to a halt.”

- Minister of Justice Doug Schweitzer

Kenney also said the bill was designed to cover as many bases as possible regarding current and possible future protests of infrastructure projects.

It’s unclear if this is intended to apply to protests on government property, at universities or other public institutions not directly named in the bill. The bill does include wording open to the possibility of redefining critical infrastructure in the future.

What are the Charter rights around public gatherings and protest?

The types of infrastructure defined in Bill 1 include both public and private property — and the law around those two things is very different.

According to the Canadian Charter of Rights and Freedoms, everyone has a right to the freedom of peaceful assembly, as well as “freedom of thought, belief, opinion and expression.”

Howard Kislowicz, an associate professor in the University of Calgary’s Faculty of Law, told HuffPost Canada that rights and freedoms around assembly and free speech were designed to apply to public infrastructure.

WATCH: Trudeau calls for patience, resolve to end rail blockades. Story continues below.

That includes roads or highways, and Kislowicz pointed to existing case law that entrenches freedom of expression in public streets. But a pipeline construction site or refinery is technically private property and charter rights don’t apply in the same way

Basically, charter rights in this sense apply to person versus government while person versus person (or corporation) is different.

A private company or person can impose injunctions for trespassing. That’s what we’ve seen with the CN and CP rail blockades. But on public property, charter rights apply.

How might this law come into conflict with those rights?

If made law, opponents of the bill could challenge it on grounds that it violates their rights to free expression and peaceful assembly.

“It’s the individual’s burden of proof to show that their rights were infringed. And once they do that, then it’s the government’s burden to prove that the infringement was justifiable,” Kislowicz said.

So for example, someone who is disciplined for protesting on a public road could argue the discipline violated their charter right to freedom of assembly. But they’d have to provide proof that it violated their right, and the government in turn would have to prove violating that right was justifiable, such as give examples of how it impeded public services like ambulances.

Hereditary Chief Ronnie West from the Lake Babine First Nation sings and beats a drum during a solidarity march in Smithers, B.C., on Jan. 16, 2019.
Hereditary Chief Ronnie West from the Lake Babine First Nation sings and beats a drum during a solidarity march in Smithers, B.C., on Jan. 16, 2019.

So it remains to be seen if the law would be challenged. If so, both parties would have to come in with substantive evidence in their favour.

What’s another conflict this bill could face?

“There could be an argument that the province was exceeding its jurisdiction by entering into the federal parliament’s jurisdiction over criminal law,” Kislowicz said.

But he said the recent trend in case law is to allow for greater concurrents of legislation, so basically to allow for provinces and the federal government to impose similar laws in similar areas.

“So [the courts] might say, ‘Well, the feds could pass this law because it’s valid criminal law but the province can also pass similar law because it’s valid under their properties,’” he said.

WATCH: Ottawa protesters give federal Justice Minister 24 hours to respond to demands. Story continues below.

He says any challenge to Bill 1 on this basis would come down to whether or not the province crossed too closely into criminal law with the bill, or if it could be fairly assumed to be about civil law and property rights.

What about Aboriginal title?

Another grounds upon which the bill, if made law, could possibly be challenged is under treaty rights and Aboriginal title. Aboriginal rights are protected under section 35 of the Canadian constitution.

“It might be the case that an Indigenous group that claims that whatever project the government is pursuing at a particular time interferes with their Aboriginal rights,” Kislowicz said. “And those cases are highly evidence dependent.”

Aboriginal title refers to a common law doctrine that essentially says Indigenous peoples’ rights persist after settler colonialism.

We’re seeing Aboriginal title come into play in northern B.C. around the Wet’suwet’en dispute. However, in Alberta most Indigenous land is covered by treaties. So any challenge involving Indigenous rights would take into account defined treaty rights and if those treaty rights apply.

That’s not to say Bill 1 couldn’t be challenged on the basis of Indigenous rights, but it would have to factor in all of this.

So what happens next?

After its tabling on Tuesday, the bill now has to go through a series of votes in the legislature before it becomes law. After that point, it can be challenged on any of these three bases.

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