University of Calgary law professors call critical infrastructure bill unconstitutional

Following analysis of the legislation, a group of law professors at the University of Calgary says that Alberta’s Bill 1 – the Critical Infrastructure Defence Act – violates the Charter of Rights and Freedoms.

The legislation passed third reading in the legislature at the end of May, and is still awaiting royal assent to officially become law in Alberta.

“Our analysis is that the government would have a difficult time justifying Bill 1 because it is so broad and it does potentially impact marginalized groups more adversely,” University of Calgary law professor and co-author of the critique of Bill 1,  Jennifer Koshan said.

“Our opinion, having looked at the law, is that the bill does violate the Charter.”

Bill 1 was introduced at the beginning of the session and at the height of the rail and road blockades across the country in solidarity with the Wet’suwet’en hereditary chiefs, who were protesting the construction of the Coastal Gas Link natural gas pipeline in northern British Columbia.

The legislation prohibits any person or company from blocking, obstructing construction or maintenance, damaging, or entering a place deemed essential infrastructure without lawful right.

The extensive list of sites to be deemed essential infrastructure include highways, pipelines, railways, oil and gas site, electrical and power plants, telecommunications equipment, radio towers, farms, dams and electrical lines on public or private land.

People found violating the law can be fined up to $25,000 or face six months in jail, while corporations found in violation could see fines up to $200,000.

According to the legislation, each day a site is blocked or damaged is considered a new offence.

“The definition of essential infrastructure is quite broad, both in terms of all the different kinds of essential infrastructure that’s already listed but also because the government gives itself powers to add to that list by way of regulation,” Koshan said.

“Things like the grounds of the legislature could be declared to be essential infrastructure and could then be places people couldn’t even enter onto, let alone have a protest.”

According to the analysis by the U of C law professors, the bill was found in violation of five different fundamental rights and freedoms.

Those include: the freedom of expression, freedom of peaceful assembly, freedom of association, the right to liberty, and the right to equality.

Koshan noted that many of the provisions included in Bill 1 are are already covered under trespassing laws in place in Alberta that prevent people from entering public or private lands where notice has been given to not enter onto those lands.

“Certain aspects of Bill 1 aren’t needed because those laws are already in place, but the problem is Bill 1 goes further than those other laws by making even entering onto the essential infrastructure an offence,” Koshan said.

“If people can be arrested and charged for an offence simply for entering onto those types of essential infrastructure, we have great concerns about the over-breadth of the bill.”

Opposition to the legislation has continued to grow in recent weeks.

An online petition to withdraw the legislation has garnered over 350,000 signatures.

Indigenous groups are also raising their concerns with the legislation, including Assembly of First Nations Alberta regional chief Marlene Poitras.

“There is opposition to it, it’s significant, I’m just hopeful the government will listen to it and come back to the table and have those meaningful discussions,” Poitras said.

In March, Poitras called on Alberta Premier Jason Kenney to rescind the bill, a position she said she still maintains.

The steep penalties for violating the law are also a concern for Poitras, who said many Indigenous people in the province would not be able to afford.

“They’re pretty steep, and a lot of our people won’t be able to afford them and will likely end up being jailed, and that’s something that we want to avoid,” Poitras said.

“Given all the discussion right now that’s occurring around racism and the high incarceration rate and those issues, this will only exacerbate those issues further.”

However, the provincial government maintains the legislation does not restrict lawful protests or the constitutionally protected rights to freedom of expression and freedom of assembly.

“The new offences and penalties in Bill 1 are meant to deter illegal activities that jeopardize the economy, public safety, and the transportation of essential goods such as propane,” a spokesperson for the Ministry of Justice said in a statement.

“Minister of Indigenous Relations Rick Wilson and Minister (Doug) Schweitzer will work collaboratively to ensure that input from Indigenous and Metis Albertans are heard and are scheduling additional outreach to receive additional feedback and discuss the concerns being raised.”

There is no word on when the bill will receive royal assent.

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