It was inevitable that sooner or later someone would challenge the United Conservative Party government’s so-called Critical Infrastructure Defence Act, which appears on its face to include patently unconstitutional attacks on fundamental rights protected by the Canadian Charter of Rights and Freedoms.
In the event, the challenge was sooner and the challenger was the Alberta Union of Provincial Employees, which filed a statement of claim with the Alberta Court of Queen’s Bench in Edmonton this morning.
Calling the legislation, which was passed on May 28 and received royal assent on June 17, “the kind of law we would expect to see in an oppressive dictatorship,” AUPE president Guy Smith vowed to fight it all the way to the Supreme Court of Canada if necessary and to “defend any and all AUPE members or staff who are caught in the bill’s cross-hairs.”
“In the past month, we have pledged to stand in solidarity with Indigenous Albertans and Black Albertans and we have always stood hand-in-hand with our fellow workers across sectors,” Smith said. “This bill attempts to criminalize that solidarity. It’s obvious the government’s intent is to crush opposition against their unpopular policies and reckless cuts to services.”
This is not mere hyperbole. There seems to be general consensus in the legal community that the bill overreaches significantly — and among many political observers that the United Conservative Party government of Jason Kenney doesn’t care, and that the premier wants to circumvent the Constitution’s protections of our fundamental freedoms for as long as he can get away with it.
In addition to criminalizing legal and constitutionally protected activities, the act allows whopping fines against protesters who enter any “essential infrastructure” — essentially anything the cabinet declares it to be — far heavier than for many criminal offences. Fines for individuals can be as high as $25,000 a day or six months in jail.
As has been argued in this space before, a government serious about the rule of law, as the UCP often claims to be, would have acknowledged Bill 1 was in violation of the fundamental rights provisions of the charter and expressly invoked Section 33, the notwithstanding clause, as Quebec did when it introduced its religious symbols law.
But that would require UCP leaders to show the courage of their convictions and respect the rule of law. It would also show the country and the world that despite Kenney’s relentless talking points about “dictator oil,” Alberta is on its way to becoming a kind of dictatorship itself.
In the statement of claim, the union argues the bill breaches several important charter rights, including the freedoms of expression and association, and that it will “substantially hinder AUPE’s ability to meaningfully engage in the collective bargaining process.”
AUPE’s statement of claim cites the bill’s criminalization of important speech, assembly and association rights as well as concerns about what it actually means, which AUPE argues is rooted in its vagueness and overreach.
“The lack of clarity in this bill causes us grave concern, particularly because the government can secretly expand the definition of ‘essential infrastructure’ without warning, and without democratic oversight,” Smith said. He noted that as the legislation is currently written, “essential infrastructure can include sidewalks, boulevards and ditches, which is hugely problematic for many meaningful demonstrations and gatherings.”
With close to 100,000 members, AUPE is the largest union in Western Canada and about the 12th largest in Canada.
When the courts eventually strike down the unconstitutional portions of the Critical Infrastructure Defence Act, as seems highly likely, that will be an opportunity for Premier Kenney to puff himself up and complain about unelected judges.
David Climenhaga, author of the Alberta Diary blog, is a journalist, author, journalism teacher, poet and trade union communicator who has worked in senior writing and editing positions at The Globe and Mail and the Calgary Herald. This post also appears on his blog, AlbertaPolitics.ca.