Alberta Politics
AUPE President Guy Smith addresses media at the Edmonton Court House this morning as the union’s lawyer, Patrick Nugent, looks on (Photo: AUPE)

Alberta Union of Provincial Employees goes to court to challenge UCP law that criminalizes public protest

Posted on June 23, 2020, 4:25 pm
5 mins

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.

Alberta Premier Jason Kenney (Photo: David J. Climenhaga).

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,” Mr. 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 Mr. 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,” Mr. 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.

11 Comments to: Alberta Union of Provincial Employees goes to court to challenge UCP law that criminalizes public protest

  1. Just Me

    June 23rd, 2020

    This will be the first action of the Notwithstanding Clause.

    And there will be many, many more to follow.

    • David Climenhaga

      June 23rd, 2020

      They’ll have to introduce new legislation to make the Notwithstanding Clause apply. Moreover, there is the matter of jurisdictional overreach, not part of the AUPE case, but to which Section 33 does not apply. DJC

      • Just Me

        June 23rd, 2020

        Given the way Kenney & Co. are inclined to apply a generous amount of crazy to their interpretations of the Notwithstanding Clause (and everything else) I’m sure there’s a ton of bizarrely workable lunatic actions that can be pulled out of Mr. Dress-up’s trunk to explain away anything that bothers Kenney.

        The Atty. Gen, a barely functional lawyer, seems to believe that the Alberta Appeals Court has primacy over the Canadian Supreme Court. If that’s the level of dementia that has taken over, it looks like Kenney and the gang are going to running the crazy for as long as they can.

        And if there’s an effort to strike down an application of the Notwithstanding Clause, then Kenney will enact an action where the federal court has no jurisdiction over Alberta because…oh, I guess Adam Smith’s ‘Invisible Hand’. Ken-DOH! will just declare Canada is just oppressing Alberta, so he will urge everyone to turn toward Ottawa’s tyranny and charge into it like the good buffaloes he keeps declaring Albertans to be. (And right off a cliff, of course.)

        Cognitive-dissonance is alive and well in Alberta.

      • Just Me

        June 23rd, 2020

        Some potential instances where the Notwithstanding Clause maybe applied where it will serve Kenney’s agenda…applicable to Sec. 2 to 15…

        2. Everyone has the following fundamental freedoms: (And Kenney just can’t wait to erase them)

        (a) freedom of conscience and religion;

        (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

        (c) freedom of peaceful assembly; and

        (d) freedom of association.

        9. Everyone has the right not to be arbitrarily detained or imprisoned. (Detain and imprison protestors as threats against demonstrations)

        10. Everyone has the right on arrest or detention (Imagine what would happen if the UCP was free to take away these obligations)
        a) to be informed promptly of the reasons therefor;
        b) to retain and instruct counsel without delay and to be informed of that right; and
        c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

        11. Any person charged with an offence has the right (Hmmm…UCP say bad)
        (a) to be informed without unreasonable delay of the specific offence;

        12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. (A very scary proposition)

        13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence. (And it keeps getting worse)

        14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter. (Yes, I really believe the UCP will go here.)

        15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (This is the scariest possibility of all.)

        Quebec established the precedent of a blanket application of the Notwithstanding Clause for the retroactive application to all legislation in 1982.

        I would not be surprised if the legislation to activate the Notwithstanding Clause is just waiting to be used.

  2. Abs

    June 23rd, 2020

    For as long as they are in power, the UCP will never stop chipping away at our rights and freedoms. They abuse power against Albertans every day of the week. They forget that we are still living in a democracy — for now.

    I wonder what the NHL commissioner thinks about Alberta, where Black Lives Matter only as long as they matter silently and invisibly, and nobody is allowed to take to the streets in protest, peacefully or otherwise? Is this something the NHL endorses? Edmonton may have glorious mountain peaks (!) , but this province is on the precipice of becoming a police state.

  3. Mike in Edmonton

    June 23rd, 2020

    This looks like either 1) an attempt to treat Alberta law like some American state–and would even the most Republican state dare?–, or 2) the kind of stupid over-reach typical of Stephen Harper’s “little boys in short pants.” Introducing legislation that’s certain to be challenged in court is EXACTLY what Harper’s PMO used to do. Then they blamed the Supreme Court for saying, “No, you can’t do that. The Constitution makes it illegal.”

    The nut doesn’t fall far from the tree, does it?

  4. Dave

    June 24th, 2020

    What exactly is critical infrastructure? A first glance it seems sort of clear, but soon it becomes evident it is vague in a very slippery way, like many things that come from the mind of the author of UCP thought, hence its overreach. Is it hospitals? Probably. Then what about the sidewalks, parking lots and roads nearby? Perhaps, some or even all of these.

    Usually those who want to restrict freedom present what they want to do at first as a more modest version proposal and then expand upon it and of course vagueness facilitates that. Mr. Kenney does seem to like writing laws to challenge our courts and judges. He must surely realize such overreach is a waste of the Province’s time and money, but I suppose he doesn’t much care. He sure seems determined to try be the modern western version of Don Quixote fighting battles of the past over and over again.

    • Doug

      June 24th, 2020

      The definition of critical infrastructure is the only shortcoming of this Bill. Perhaps it should be something like:
      -any road averaging more than x vehicles per day provided that the road isn’t the only reasonable route servicing a business or residence or insitituion
      -any active rail line
      -any utility line including power transmission, power distribution, gas collection, gas transmission, gas distribution, potable water transmission, potable water distribution, irrigation water diversion, irrigation conveyance, irrigation distribution, wastewater collection, wastewater conveyance, wastewater treatment

      Interference in any of the above is not peaceful protest.

  5. Expat Albertan

    June 24th, 2020

    As I’ve said before in this space, those of us who knew about Jason Kenney years before he showed up on the Alberta scene knew that this type of thing would happen. And we also knew that a lot of Albertans mistakenly believed that he would ultimately behave like the type of provincial Conservative they’ve been used to for generations – even those who thought that he would be Ralph Klein 2.0 probably thought that he’d be much more of a ‘man of the people’ type like Doug Ford. Well, the joke is on them – JK is like nothing they’ve ever seen or expected. It’s one thing for Conservatives to sling poop at central Canada in the federal parliament; it’s another thing entirely to see them slinging it at their fellow Albertans. As Albertans get over the shellshock, expect even more intense assaults on the body politic by this gang.

  6. Athabascan

    June 24th, 2020

    Remember fellow Albertans, you voted for this. Just think we have three more years of Kenney facsism to look forward to – enjoy.

    • Doug

      June 24th, 2020

      I’ll continue to support Kenney if he progresses on:
      -downsizing and decompensating the public service so that it performs more like the public services of other provinces, or even better, closes the gap with private sector productivity. If that means war against the unions, so be it. Labour peace is not even a consideration
      -reinvigorate the economy through business friendly policies like more streamlined regulation, lower taxes and reduced barriers to inter-provincial and international trade
      -some out of the box thinking to improve government efficiency and grow the economy. This could include Right to Work legislation, privatization, deregulation, more choice in education and maybe even private healthcare targeted at foreigners


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