LAST month, the Pallister government unveiled Bill 57, the Protection of Critical Infrastructure Act. Following the lead of several American states and the province of Alberta, Bill 57 would limit protests on and around so-called critical infrastructure.
Alberta’s legislation creates offences out of a range of activities, from interrupting the work of an oil sands operation to "wilfully entering" public roads "without lawful right, justification or excuse." Penalties include $10,000 fines and imprisonment for six months on a first offence. Not surprisingly, the Alberta law is already facing a challenge under the Canadian Charter of Rights and Freedoms.
The Manitoba legislation seeks to avoid the most obvious constitutional pitfalls. Bill 57 defines "critical infrastructure" to include (for example) food processing plants, grocery stores, highways, pipelines, banks and hospitals. Protected infrastructure includes both public and private property.
However, owners would be required to convince a judge that protesters are interfering with their infrastructure and that a court order is required for its safe, unhindered operation. Court orders under the legislation could prohibit protesters from entering or blockading a zone around the business or government operation, or limit protest activity within that zone.
The court could also establish a designated protest zone off to the side somewhere that protesters may use instead.
Only after such an order is sought and granted would penalties come into play. Protesters breaching a court order could face fines up to $5,000 and imprisonment up to 30 days.
But what makes the Manitoba legislation less obviously offensive to the charter also renders it redundant. The very first lines of Bill 57 declare "there exists a constitutional right to freedom of assembly and freedom of expression, which includes the right to assemble," and that "it is in the interest of all Manitobans that critical infrastructure be protected from interference while respecting the right to assemble."
What has been overlooked, or ignored, is that Manitoba already has a well-articulated body of law that balances the right to protest with the ability of owners to obtain court orders limiting protests that interfere with business or government operations.
While the ability to obtain injunctions — court orders that compel persons to do, or not do, specified acts — goes back centuries in English law, Manitoba modified its law 50 years ago.
In 1970, the NDP government of Ed Schreyer passed legislation limiting the power of the courts to grant injunctions that restrain freedom of speech, including in protests on property to which the public is ordinarily granted access, such as a parking lot or access road. The primary aim of the Schreyer government was to protect the rights of striking picketers, but in the decades since, Manitoba courts have applied this law in a variety of scenarios.
In 2014, the Manitoba Court of Appeal considered a dispute between Indigenous protesters and Hudson Bay Mining & Smelting. The protesters appealed an injunction granted by the lower court that curtailed protests on two mining roads in northern Manitoba. In deciding the appeal, the court balanced the interest of the mine owners with the free-speech rights of protesters as required by the 1970 legislation
The appeals court dismissed the protesters’ appeal in relation to one of the two mining roads because the protesters had blockaded the road and impeded mining operations. But in the case of the other road, the court found that while there was protest, there was no blockade, so it lifted the injunction as it applied to that road.
Just last year, when protesters blockaded a CN rail line near Headingley in solidarity with the Wet’suwet’en, Premier Brian Pallister pondered obtaining an injunction to end the blockade. While Pallister was still mulling it over, CN applied for and was granted an injunction that included provisions for police enforcement. The blockade ended less than 24 hours after it began.
Since Manitoba has well-established law that effectively balances the rights of protesters with the ability to obtain injunctions, the new legislation addresses a non-existent problem.
Bill 57 would set new standard penalties for breaching injunctions, but courts already have the ability to include police enforcement with injunctions and contempt orders that may include penalties against protesters who breach injunctions.
Bill 57 would empower courts to make orders that are, in essence, injunctions. But it doesn’t repeal the existing Manitoba law that requires courts to balance the free-speech rights of protesters with the rights of property owners. As a result, it is doubtful that Bill 57 could serve the ideological purpose of recalibrating the courts’ balancing act in favour of owners.
In one respect, Bill 57 would alter the status quo: it includes a provision that requires courts to hear every application for an anti-protest injunction on an urgent basis. Yet this part of the legislation likely violates the charter: if courts do not retain the power to screen applications for injunctions — which includes declining to hear them on an urgent basis if they are not, in fact, urgent — then government and business are granted a new power to drag protesters into court without just cause.
Mostly redundant, and likely unconstitutional in the one place where it’s not, Manitobans might be inclined to wonder if Bill 57 is anything more than political theatre.
Martin Kramer is a Winnipeg lawyer.