AUPE looks to Supreme Court in fight against Alberta's critical infrastructure defence law

Alberta's largest public sector union is taking its fight against the Critical Infrastructure Defence Act to the Supreme Court, days after the act was used to charge a protester at the Coutts border blockade.

The Alberta Union of Provincial Employees (AUPE) said Friday it will seek leave from Canada's top court to continue its constitutional challenge of the law, also known as Bill 1.

"Alberta government leaders have spoken at length about using Bill 1 against environmental protests and have a track record of attacking unions and workers," AUPE president Guy Smith said in a statement Friday. 

"The fact that the government and police waited so long to charge anyone under Bill 1 during the border protests at Coutts and aren't using the act to shut down the protests entirely suggests that this will be a law that is imposed only on those with whom the government does not agree," Smith said.

Charges were laid under the act Monday, when a controversial Calgary street preacher, accused of inciting protesters at the southern Alberta border blockade, was arrested at Coutts.

Artur Pawlowski was charged after giving a speech last week at the Smugglers Saloon in Coutts.

Pawlowski was charged with two criminal offences including mischief over $5,000 and interrupting the operation of essential infrastructure in a manner that renders it inoperative.

A video of the speech posted online shows Pawlowski telling the crowd that "for freedom to be preserved, people must be willing to sacrifice their lives. This is our time"

The law, introduced by the United Conservative government in 2020, levies hefty fines against individuals or companies found to have blocked, damaged or illegally entered any "essential infrastructure" including pipelines, rail lines, oil sites, electrical lines, and highways.

Some critics say the act should be used more widely to end the border blockade, a protest which has clogged the highway border crossing since Jan. 29.

Premier Jason Kenney said a statement Friday, "Blockading critical infrastructure like highways is against the law, and Alberta has given the RCMP the tools they need to end the blockade, including the Critical Infrastructure Defense Act."

Pawloski's charges do not alter the union's position or approach to the appeal, Patrick Nugent, a lawyer for the AUPE told CBC Friday.

All Albertans should be concerned about how it restricts their right to protest, Nugent said. 

"The union has always been interested in getting rid of this clearly unconstitutional piece of legislation."

The union believes the legislation hampers the union's ability to engage in collective bargaining, which includes the right to strike. 

In December 2021, the Alberta Court of Appeal ruled that AUPE had no standing to bring a constitutional case against the legislation. 

Union has no standing, judge says

Its ruling characterized AUPE's challenge as premature, saying the AUPE's case was based "solely on hypothetical situations," and the union had no standing in the case as no union members had been charged. 

"Even the allegation of the 'chilling effect' of the statute is, at this stage, merely a hypothetical proposition," it said.

"The appeal court has concluded that until someone from AUPE is charged with the legislation, the AUPE doesn't have a basis to challenge the legislation," Nugent said. "We shouldn't have to wait." 

The union was given 60 days to challenge the appeal court decision.

"There is a clock that's ticking," Nugent said. "That's why the AUPE has filed an application with the Supreme Court.

Should the Supreme Court decide to hear the challenge and rule in the union's favour, it would give the AUPE standing to continue its fight to have the legislation struck down in the Court of Queen's Bench, he said.

A statement from the justice minister's office Friday says the province will defend the act against the union's "baseless claims." 

"Constitutional rights, such as those of free assembly, have been found by courts to have reasonable limits," it said. "The blocking of critical infrastructure is unacceptable, and we believe that the Supreme Court of Canada will agree that the AUPE claim is without merit."

The Critical Infrastructure Defence Act, came into force on June 17, 2020, and built on existing trespassing laws. 

It was introduced by the UCP government in response to the blockades of CN rail lines by Indigenous protesters earlier that year.

Fines for individuals are up to $25,000 a day and up to six months in jail; corporations found to have violated the legislation face a daily penalty of up to $200,000.