Alberta has introduced a law that would jail pipeline protesters for up to six months and impose huge fines starting at $1,000 a day.
Known as the Critical Infrastructure Defence Act, the proposed law was tabled days after a major company withdrew its application to embark on an enormous oil sands project in the province. Premier Jason Kenney pointed to that withdrawal as a justification for the stringent approach.
“It is clear that the withdrawal of the $20-billion Teck Frontier mine project was linked to the chaos that we have seen in parts of Canada over the past couple of weeks,” he told reporters, referring to cascading protests in several provinces over a dispute between Wet’suwet’en hereditary chiefs and a pipeline project in British Columbia.
While federal criminal law already contains the possibility of punishment for such offences as mischief, which includes blocking infrastructure, Mr. Kenney said the province is adding its own penalties to get its message across. Provinces are allowed under the Constitution to create what are known as summary offences, including maximum penalties of six months in jail. In the fall, the province passed the Trespass to Premises Act containing similar penalties to those in the proposed new law.
Mr. Kenney said a widespread misperception has arisen that court injunctions are needed to stop what he described as illegal acts preventing the proper use of major infrastructure such as pipelines, highways or telecommunications facilities.
“You can’t go and stand in a highway and put dangerous debris on a railway,” he said. “I think we’ve suddenly in the last three weeks begun to think that the law is made on a case-by-case basis through injunctions.”
If passed, the law would include fines set at a minimum of $1,000 a day for individuals, with a maximum of $10,000 for the first day, and $25,000 on each subsequent day.
The law would make it an offence for individuals or companies to aid, direct or counsel someone to interfere with or interrupt the use of essential infrastructure, whether publicly or privately owned. Companies would face minimum fines of $10,000 a day, and a maximum of $200,000.
The approach echoes recently adopted laws in nine U.S. states, and under consideration in eight others, which make it a felony to block or be present near pipelines and other major infrastructure. In Louisiana, for instance, the maximum jail term for such an offence is five years. (About 16 people have been charged with felonies in that state for peaceful, non-violent presence near infrastructure that would previously been treated as a misdemeanor trespass, says Pam Spees, a senior staff lawyer with the U.S. Center for Constitutional Rights.) In Canada, however, only the federal government can make criminal law.
Alberta Justice Minister and Solicitor-General Doug Schweitzer called on his counterparts across Canada, including at the federal level, to put forward similar laws. He said his own province has no tolerance for lawbreaking that damages the economy.
“Not in Alberta, not now, not ever,” he said.
An Indigenous jurist called the proposed law “dog-whistle politics” targeted at Indigenous protesters, and questioned whether it is constitutionally valid.
“You have a right to freedom of expression, you have a right to assembly,” said former judge Mary Ellen Turpel-Lafond, who teaches at the University of British Columbia’s Allard School, and is the director of UBC’s residential school history and dialogue centre.
She said the young people who make up a large component of the protests would be unable to pay the huge fines. “Are we going to have debtors’ prisons?”
Howard Kislowicz, who teaches law at the University of Calgary, said there is very little case law on the right to peaceful assembly under the Charter of Rights and Freedoms. The right is mostly discussed as a separate right to freedom of expression, he said.
“I think we can expect it to be challenged at some point,” he said of the proposed new law.
Mr. Kenney said Albertans and other Canadians respect the right to protest, but not lawbreaking.
“In the last few weeks we have seen virtually anarchy,” he told reporters, “massively damaging our economy, killing thousands of jobs, jeopardizing the livelihoods of countless Canadians and even putting human life in peril with ambulances and medical emergencies being blocked.”