The Constitutionality of the Critical Infrastructure Defence Act (CIDA)

By Boritse Mene

Introduction

The blockage of railways and roads during protests earlier this year influenced the introduction of Bill 1—The Critical Infrastructure Defence Act, SA 2020, c C-32.7 (CIDA) by the Alberta government. Despite months of criticism, the Bill came into force on June 17, 2020. Now that the Bill has been proclaimed into law, it is imperative to consider if parts or all of it indeed breach(es) the Canadian Charter of Rights and Freedoms (Charter), particularly the Charter provisions on:

·      freedom of thought, belief and expression;

·      the right to peaceful assembly;

·      life and security of the person;

·      equality; and

·      the presumption of innocence,

as some critics claim.

Interpretation of the Charter vis à vis laws by the courts

When faced with questions on the interpretation of words in the law, courts apply a purposive interpretation to understand the law’s intent. See (Rizzo & Rizzo Shoes Ltd. (Re), 1999 CanLII 837 (S.C.C.)). A purposive interpretation means reading the words of the entire statute in their entire context and their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.” In Hunter et al. v Southam Inc., 1984 CanLII 33 (S.C.C.), the court states that the Charter is a purposive document which must be subject to a purposive analysis. The interpretation of Charter rights should be generous, rather than legalistic. It must allude to linguistic, and historical contexts to make sure that the full benefits of the Charter are available to individuals (R v Big M Drug Mart Ltd., 1985 CanLII 69 (SCC).

On the interpretation of Canadian statutes, no one size fits all approach exists (See: 2747-3174 Québec Inc v Québec (Régie des permis d’ alcohol). The court uses textual analyses by focusing first on the ordinary language use in the law—that is, the meaning that a competent reader would attach to the text. After that, it considers the technical language in the law that only its drafters and people in a specialized category may understand (See Ruth Sullivan, Statutory Interpretation in a Nutshell). Next, is a consideration of the law’s purpose by referring to the mischief that it intends to address; most of the time, the purpose of a statute is in its preamble (Sullivan). Other approaches to interpretation include policy analysis that focuses on the values and concerns that are presumed to influence the statute’s intention and canons of statutory interpretation, which sometimes favours a liberal approach, as seen in R v Lewis, 1996 CanLII 246 SCC). In R v Lewis, the SCC held that statutes affecting aboriginal rights are subject to liberal construction (See: Geoff R. Hall, “Statutory Interpretation in the Supreme Court of Canada: The Triumph of the Common Law Methodology”).

Structure of the CIDA 

The CIDA is divided into five sections. Section 2 of the CIDA prohibits anyone from entering into, willfully destroying and obstructing an essential infrastructure without a “lawful right, justification or excuse.”

In its definition section (s 1), “essential infrastructure” includes, but is not limited to, a provincial highway, oil site, mine, oil production and oil sands site, railway, structural facility or track, or dam. Contravening section 2 of the CIDA is a criminal offence that attracts a fine of a minimum of $1000 and a maximum of $10,000, or a six-month jail term, or a combination of both a fine and jail term for first time individual offenders (See s 3(1)(a)(i)).

The Act increases the fine for second-time individual offenders to a maximum of $25,000 (s 3(1)(a)(ii)). First time guilty corporations are penalized with a fine of $1,000-$10,000 (s 3(1)(b)). The directors, officers and agents of corporate offenders who authorize the contravention of section 2 of the Act may also face the penalties prescribed by the Act. (See s 3(2)).

Legal Concerns about the Act

Exceeding Provincial Jurisdiction

Section 91(27) of the Constitution Act, 1867, grants the federal Parliament exclusive jurisdiction over criminal law in Canada. Thus, the cited provisions of the CIDA appear to encroach on the powers of the federal government. On this score, an argument in favour of the CIDA is its validity under section 92(13) of the Constitution Act, 1867. This argument is not without challenge, however. Alexandra Heine and Kelly Twa argue that the fact that the CIDA prohibits specific conduct on properties, including those that may be local, takes it outside the ambit of section 92(13).

Purpose

The CIDA applies to Crown and private land. University of Calgary Law Professors Jennifer Koshan, Lisa Silver and Jonnette Watson Hamilton argue the CIDA purports to duplicate offences other existing provincial laws address. They argue that these laws are the Petty Trespass Act, RSA 2000, c P-11, and the Trespass to Premises Act, RSA 2000, c T-7, which make it an offence to enter Crown or private land without authorization. Some other provisions that may be duplicated are:

·      Section 4 of the Crown Property Regulation, Alta Reg 125/1998, which prohibits persons from congregating in a disorderly manner; and

·      Section 430 of the Criminal Code, RSC 1985, c C-46, which criminalizes damaging or destroying property of all types willfully, or to obstruct or interfere with its use.

·      Section 72(1) of the Criminal Code also criminalizes entry onto a property that is likely to cause a breach of the peace.

Intention

The CIDA does not dwell on the intention of anyone who enters into critical infrastructure. The implication of Section 2(1) CIDA is that so long as such presence on the property is without lawful, justification or excuse, it is an offence. One activity this could seriously affect is peaceful protests. For example, the Black Lives Matter Protest that occurred in several parts of the Province in June, 2020 would be an offence if protesters did not obtain permission to protest from the Crown. Seeking permission to protest would engage subparagraphs 2(b) – (d), subsection 15(1) of the Charter and section 35 of the Constitution Act, 1982.

Sections 2 (b) – (d) of the Charter

In Canada, freedom of expression, peaceful assembly and association often go together and apply to everyone, including corporations. On all three rights, the Charter states:

2. Everyone has the following fundamental freedoms:

….

(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.

Freedom of expression is the lifeblood that a democratic society needs to ensure freedom and liberty (See: R v Sharpe, 2001 SCC 2 (CanLII); Warman v Northman Alliance, 2009 CHRT 10). It is any non-violent activity that conveys meaning (Irwin Toy v Quebec (A.G.), [1989] 1 SCR 927). It protects the speaker and recipient of the expressive activity (Edmonton Journal v Alberta (Attorney General), [1989] 2 SCR 1326).

Picketing (Morasse v Nadeau-Dubois, 2016 SCC 44), marching and protesting with banners (Weisfeld v Canada, 1994 CanLII 3503 (FCA)), are examples of activities that have been held by Canadian courts to be expressive.

On freedom of association, in Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1, the court states that section 2 (d) of the Charter safeguards three types of rights viz:

·      the power of an individual to join others to form associations;

·      the right to form a group to pursue other constitutional rights; and

·      the right to join others to meet equally on the strength and capacity of several groups and entities.

The crux of the case was the constitutional validity of s 96 of the Royal Canadian Mounted Police Regulations ,SOR/88-361 (now repealed) that imposed a collective bargaining representative on members of the mounted police rather than allow them to use a representative of choice. The court concluded that the section in question infringes on section 2 (d) of the Charter, hence its subsequent repeal.

Freedom of peaceful assembly is different from freedom of assembly. There is no constitutional protection for freedom of assembly. However, freedom of peaceful assembly allows people to assemble peacefully as a part of a group in demonstrations, rallies, protests and other gatherings (Figueiras v Toronto Police Services Board, 2014 ONSC 2142 (the court’s decision in this case was reversed on other grounds, see: Figueiras v Toronto Police Services Board, 2015 ONCA 208).

It enables people to engage in informational pickets (Pepsi-Cola Canada Beverages (West) Ltd. v Retail, Wholesale and Department Store Union, Local 558,2002 SCC 8 and  to demonstrate on public highways and in public parks (See Garbeau c. Montreal (City of), 2015 QCCS 5246; Batty v City of Toronto, 2011 ONSC 6862).

Any unlawful assembly that may breach the peace of the public, or incite others to do so, may become a riot; rioting is punishable with a two-year maximum jail term under the Criminal Code. (See sections 63(1) and 64 of the Criminal Code, RSC 1985 C c-46). Section 31 of the Criminal Code grants the police powers to detain anyone for breaching the peace of the public.

In situations where applicants raise the right to peaceful assembly separately, the courts usually consider this issue under the umbrella of s 2 (b) thus, giving its questions a restricted judicial interpretation. (See: British Columbia Teachers’ Federation v British Columbia Public School Employers’ Association; Department of Justice, “Section 2 (c) – Freedom of peaceful assembly”).

Sections 7, 11(d) & 15 of the Charter

Section 7 of the Charter states that “everyone” has the right to life, liberty and security of the person, and cannot lose the right except in accordance with the principles of fundamental justice. These principles include procedural fairness and substantive principles: laws cannot be overbroad, grossly disproportionate or arbitrary (Canada (Attorney General) v Bedford, [2013] 3 SCR 1101 at 98 to 123).

Section 3 of the CIDA engages the right to liberty by prescribing jail terms for entering into a critical infrastructure without lawful authorization. In R v Robson, the British Columbia Court of Appeal explains that liberty is a broad concept which should derive its meaning from the examination of each case that relies on the right.

Section 11 (d) of the Charter provides that:

Any person charged with an offence has the right: to be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal.

The CIDA appears to have provisions similar to the reverse onus that was found unconstitutional in the Supreme Court of Canada case of R v Oakes. The Narcotics Control Act placed the burden of proof on the accused to show that he did not intend to engage in trafficking the narcotics found on his person. Similarly, the CIDA appears to place the burden of proof on anyone who enters “essential infrastructure” without authorization to prove that they have no intention to destroy property willfully.

Charter section 15(1) emphasizes that every individual is entitled to equal benefit and protection of the law without discrimination on race, age, sex, colour, mental or physical disability. Section 2 of the CIDA could limit the right of the vulnerable and marginalized groups in society to protest in areas designated as essential infrastructure. In contrast, section 3 could result in a deprivation of their liberty (Charter s 7) if arrested on charges of contravening section 2.

Aboriginal Rights

Another argument against the CIDA is that it affects section 35 of the Constitution Act, 1982 on Aboriginal rights. Section 35 affirms the existing treaty and indigenous rights of Aboriginal people in Canada. Some of these rights include the right to fish and hunt, and the courts have interpreted s 35 as imposing a duty of the Crown to adequately consult with Aboriginal people before embarking on projects on Aboriginal land. In addition, If persons who allege ‘improper consultation’ cannot access critical infrastructure to express an opinion on the impacts of projects without due consultation, it truncates their Charter section 2 (a)-(d) rights, as well as the Charter rights to liberty and equality.

Interference with Charter Rights (Section 1)

Government action or laws can lawfully interfere with a Charter right if the interference is justifiable under s1 of the Charter (See: Fleming v Ontario, 2019 SCC 45). The evaluation for justification requires that the Charter infringement is justified by the Government passing the Oakes test. In summary, the Oakes test is in three phases:

·      the objective of the legislative action that intends to override or has the effect of overriding a Charter right must be significant enough to do so;

·      the aim of overriding the right must be proportionate with the measures the party which relies on section 1 of the Charter implements to do so; and

·      the party which claims section 1 of the Charter must show that the intention to override the Charter right is reasonable and justifiable in a free and democratic society with as little impairment of the rights as possible.

In a situation where a court finds infringement of a Charter right by law, the government may still proceed to override sections 2 and sections 7 to 15 Charter rights with the “notwithstanding clause” (See: section 33 of the Charter;  Ford v Quebec [1988] 2 SCR 712). A reasonably recent law that overrides freedom of expression and equality rights is Quebec’s ban on religious symbols. The “notwithstanding clause” also applies to section 7 of the Charter.

Charter Remedies

In situations where courts have found legislation to infringe unjustly on Charter rights, various strategies, such as reading down, severing, and striking out or reading in words into the offending section (s) are employed (See: Schachter v Canada, [1992] 2 SCR 679).

Conclusion

Due to the amount of public outcry that the new CIDA receives in the news, academic articles and opinion polls, it will likely face legal objections on its constitutional implications as it applies to Charter rights. Only recently, the first constitutional challenge to the Act is by the Alberta Union of Provincial Employees (AUPE), which alleges that the CIDA infringes the right of the AUPE to protest, engage in collective bargaining and strike implications as it applies to Charter rights. It is left for the Alberta legislature to justify the Charter rights infringement. The court would apply the rules of interpretation in determining whether the violation is genuinely justified in a free and democratic society.