Court dismisses union's attempt to block security bill it says targets picketing

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A public-sector union’s bid to halt legislation it argues will prohibit some picketing has been rebuffed in court.

In a decision dated Dec. 14, the Alberta Court of Appeal overruled a Court of Queen’s Bench conclusion from last June that granted the Alberta Union of Provincial Employees (AUPE) standing to bring a claim against Bill 1.

The legislation passed last June prohibits the blocking or damaging of anything the government deems “essential infrastructure” such as oil and gas facilities, provincially regulated railways, utilities and other structures.

But the AUPE insists Bill 1, or the Critical Infrastructure Defence Act, is a thinly veiled and unconstitutional move to criminalize picketing outside government facilities such as hospitals during labour disputes.

“AUPE views it as a threat to its ability to effectively take strike and picket action on behalf of members,” said AUPE counsel Patrick Nugent.

“These prohibitions presently create a tangible, chilling effect on public demonstrations, including picketing and leafleting, which directly impacts AUPE and its members.”

Bill 1’s vagueness and its prohibition of blocking sidewalks and boulevards, said the union, is a dangerous assault on legal protest.

But in rejecting the union’s argument, the court concluded the AUPE had no standing because Bill 1 hasn’t yet been used against it.

“It is not appropriate to attempt to adjudicate the constitutionality of the Critical Infrastructure Defence Act in the absence of a factual record, based merely on hypotheticals. The cross-appeal is dismissed,” stated the court in its decision.

“Absent a proper factual platform, the respondents’ proposed suit is not a reasonable and effective means of challenging the constitutionality of the (Act) in court.”

In its appeal, the Alberta government successfully argued the AUPE’s claims were “premature, purely speculative and hypothetical.”

But Nugent said laws aren’t passed merely to bring prosecution but to affect prior behaviour, or what he called a “chilling effect” on what should be considered lawful protest or picketing, “and that happens as soon as the law is passed.”

The legislation was prompted by the blockading of rail lines and roads by protesters supporting Northern B.C.’s Wet’suwet’en hereditary chiefs opposed to the building of the Coastal Gas Link pipeline through their territory.

Opponents call the legislation a dangerous assault on dissent while proponents insist it’s an effective way to minimize harm to the economy and public welfare and to freedom of movement.

It establishes penalties of up to $25,000, six months in jail, or both.

The AUPE said it will still take the province to court if it employs Bill 1 against its members.

“It’s not the end of the story . . . AUPE will be ready to challenge Bill 1 if any of its members are charged with a breach while participating in any kind of work-related protest or action,” said Nugent, adding the union will also intervene in favour of other groups affected by the legislation.

BKaufmann@postmedia.com

Twitter: @BillKaufmannjrn