Charter 'cannot be used as a shield' appeal court rules in upholding preacher's Coutts conviction

Alberta's top court has upheld Calgary pastor Artur Pawlowski's mischief conviction for inciting protesters to block the highway at the Coutts border crossing in 2022.

The Alberta Court of Appeal released its decision Tuesday, seven weeks after arguments were made before a panel of three judges.

In May 2023, Justice Gordon Krinke ruled that Pawlowski "counselled other persons to interfere with the use of Highway 4 in a manner which rendered it useless."

The evidence included a video of the speech the street preacher delivered on Feb. 3, 2022, at the Coutts border blockade — a protest against COVID-19 health restrictions.

Pawlowski was convicted of mischief and handed a 60-day sentence. 

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In her appeal, defence lawyer Sarah Miller argued her client was communicating with protestors and did not incite interference with the highway. 

But the court of appeal disagreed. 

"The appellant's intention was to incite others to continue physically interfering with the highway," reads the decision. 

The court said this was "a fundamentally different intention" than a "solely communicative" purpose. 

"A reasonable person would understand the appellant's speech to be an active inducement of the illegal activity that was ongoing and that the appellant intended for his speech to be so understood," reads part of the 27-page decision. 

'Don't you dare go breaking the line'

The day the speech was delivered, protesters had made a deal with RCMP to leave Coutts and head to Edmonton. 

Pawlowski encouraged people to stay.

"The eyes of the world are fixed right here on you guys. You are the heroes. Don't you dare go breaking the line," Pawlowski said in the video.

The protesters stayed and the two-week on-again, off-again blockade continued. 

Miller also argued that Pawlowski was legally justified to give the speech because of his Charter-protected right to freedom of expression.

Charter 'cannot be used as a shield'

Again, the court sided with prosecutor Andrew Barg, who argued the speech crossed a line. 

While the speech is protected by Pawlowski's right to express himself, "that does not mean the appellant acted with 'legal justification' in inciting mischief."

The Charter, wrote the court, "cannot be used as a shield to allow the commission of criminal offences."

More than a dozen people were charged in connection with the protests and blockade, including four men accused of conspiracy to murder RCMP officers.

Those men were not convicted of the most serious charge.

Instead, two pleaded guilty to firearms offences and were released from jail with sentences equal to the time they'd already served. The other two were found guilty of firearms violations and mischief following a trial and were handed 6½-year sentences last month.