Courts have yet to assess constitutionality of the legislation, says lawyer
The Supreme Court of Canada will not hear an appeal brought by an Alberta union challenging the constitutionality of a law prohibiting protestors from entering onto “essential infrastructure.”
The Alberta Union of Provincial Employees (AUPE) said the law interfered with their ability to carry out Charter protected union activities, but the Court of Appeal had dismissed their claim because it did not include anyone who had been charged under the law.
The denial of leave to the SCC leaves open the question of whether a “plainly unconstitutional law” can be enacted and left standing, as long as no one is charged or prosecuted under it, says Patrick Nugent, counsel for the AUPE and a lawyer at Nugent Law office in Edmonton.
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“I didn't use this example with the court,” he says. “But if the province passed a law saying that no Catholics can attend any public swimming pools in Alberta, I'm pretty sure the court would not say we have to wait until a Catholic is actually denied entry to the swimming pool before a challenge could be brought to that kind of legislation.”
The lawyer for the Crown did not respond to Canadian Lawyer’s request for comment.
Alberta’s Critical Infrastructure Defence Act came into force June 17, 2020. The AUPE launched their challenge six days later, arguing the legislation infringed their Charter rights, violated the Alberta Bill of Rights, and intruded on federal jurisdiction.
Alberta’s United Conservative Party government enacted the legislation following a wave of blockades across Canada arising from the Wet’suwet’en hereditary chiefs’ opposition to the Coastal Gaslink Pipeline.
“Over the last number of weeks, Albertans have witnessed the level of economic damage that a small group of lawbreakers can cause through blockades and other illegal protests,” Doug Schweitzer, then minister of justice and solicitor general, said at the time. “Our government will not stand idly by and allow Alberta to be an economic hostage to illegal activity now or ever. The Critical Infrastructure Defence Act will help protect our way of life by ensuring the rule of law is upheld and the infrastructure that is critical to our province’s economy can continue to operate.”
The law prohibits entering on, wilfully damaging or destroying, and wilfully obstructing, interrupting, or interfering with the construction, maintenance, use or operation of “any essential infrastructure.” Included in the Act as essential infrastructure are oil and gas production and refining facilities, pipelines and related infrastructure, highways, provincially regulated railways, certain agricultural operations, public utilities, and mines.
“The bill potentially precluded folks from entering onto large areas of public land, where, whether in the context of labour demonstrations or other kinds of demonstrations, people would have typically gathered and engaged in some kind of protest or picketing activity,” says Nugent.
The AUPE said the law would interfere with their freedom of expression, assembly, and association, by preventing them from carrying out union activities such as leafleting and lawful picketing, and counselling and directing others to do so. The law also created an environment in which unions were unable to communicate their collective bargaining positions with the public and unable to pressure employers during collective bargaining. The union would be handicapped from functioning as a bargaining agent and prohibited from performing associational activities on essential infrastructure, they said.
The AUPE added that “essential infrastructure” is defined “incredibly broadly,” can include ditches, sidewalks, and boulevards, and cabinet, “without any notice or democratic oversight” can add to it or change what it means whenever it so chooses.
But because no one associated with it had been charged under the Act, Alberta argued the union lacked private interest standing and that their claim was without factual foundation.
Initially, the union was successful. At the Court of Queen’s Bench, Justice Shaina Leonard denied the province’s application to strike the statement of claim, finding the AUPE had public interest standing. While it lacked “specific factual foundation,” Justice Leonard said the claims “are justiciable and capable of adjudication through the lens of a reasonable hypothetical scenario.”
In a decision released Dec. 14 of last year, the Court of Appeal allowed Alberta’s appeal and struck out the statement of claim. The court found that while a statute’s constitutionality is a justiciable issue, litigating the matters of contention based on hypothetical issues was not “a reasonable and efficient” way to address them in court.
In seeking leave to the SCC, the AUPE argued that the appeal court had mischaracterized the claim, says Nugent. The claim was not hypothetical because the legislation had already had an effect. It was creating a chill on legitimate protest because people were unsure of whether their protests or pickets in certain places were lawful or unlawful, he says.
“The natural understanding would be that the law was meant to change the way people behaved, and it was changing the way people behave,” says Nugent. “So, it wasn't a hypothetical claim. It was a real claim based on current events, even though no one had been charged.”
The AUPE is monitoring proceedings and will make a constitutional claim when the authorities charge someone under the law, he says.
Nugent adds that the constitutionality of the Act has yet to be evaluated by a court.
“No court level yet has assessed the actual constitutionality of the legislation,” he says. “The Court of Appeal’s dismissal, and then the Supreme Court's refusal to grant leave – no one should read into that any comment on the substance of a AUPE’s claim, because that has not been adjudicated at all.”
“That question’s going to have to wait for another day.”