Justice Minister Admits New Bill Could Criminalize Canada’s Anti-Pipeline Protesters

New legislation seeks to criminalize protesters that interrupt "critical infrastructure," which could lead to serious consequences for movements like the Burnaby Mountain protests.

by Justin Ling
Dec 8 2014, 10:16pm

Protesters gathering to stop Kinder Morgan from drilling at Burnaby Mountain could face prosecution under a new bill. Photo by Jackie Dives.

Federal Minister of Justice Peter MacKay says it "would be up to a judge" to decide whether or not to lock up protesters who stage blockades against energy pipelines or hold protests on railroad tracks if a bill introduced by a Conservative Party backbencher becomes law.

On Friday, I reported that Bill C-639 would slap mandatory minimum fines and up to ten years in prison on anyone caught damaging or blocking "critical infrastructure."

Critical infrastructure, the bill stipulates, is any public or private thing, "the disruption of which could produce serious adverse economic effects or endanger the health or safety of Canadians."

That could include hospitals, energy plants, or digital infrastructure—such as public transit systems, which rely heavily on the web—says Wai Young, the Conservative MP who introduced the bill. Young's reference to digital infrastructure also implies that her bill would be strengthening penalties for hackers who go after cyberinfrastructure or government systems, which is timely, given the recent hack of various government sites.

But outside Question Period on Monday, MacKay acknowledged that pipelines could also fall within that definition, leaving the door open as to whether or not this bill could be used to punish the protesters currently protesting a Kinder Morgan pipeline on Burnaby Mountain.

When asked whether the bill would apply to pipelines and railroads, MacKay acknowledged that both fall under the definition of critical infrastructure, adding that "harming that kind of infrastructure would be illegal."

MacKay left out, however, that the bill doesn't just slap fines on those who damage infrastructure—it also criminalizes those who block its construction and use. C-639 singles out anyone who "obstructs, interrupts or interferes with the lawful use, enjoyment or operation of any part of a critical infrastructure."

The Criminal Code already includes sanctions for "mischief,"which uses some of the same language as Young's bill, though police haven't bothered applying those laws, which usually doesn't come with any mandatory fines or jail time, with any sort of consistency.

C-639 mandates minimum fines of $500 or $3,000 and maximum sentences of two or ten years, depending on whether prosecutors elect to try a case as a summary or indictable offense.

VICE asked MacKay whether the protesters on Burnaby Mountain—which is located just a few kilometers from Young's riding—would have been arrested under this law. MacKay said that it "would have to be examined in the formulation and the interpretation of the bill, and it would be up to a judge to interpret if it would become law."

When the NDP's justice critic, Françoise Boivin, asked about the bill in Question Period, arguing that it paves over Canadians' right to free expression, MacKay would only say that his department examined the bill, and concluded that it's constitutional.

Private member's bills, of course, don't have to be examined by the Department of Justice to ensure that they're constitutional and, as the federal government admitted recently after getting sued by the former head of his legislative affairs division, it has no problem introducing legislation that has a 99 percent chance of being declared unconstitutional by the courts.

MacKay did say that a committee would analyze the bill and didn't rule out the possibility that it would be amended to ensure that peaceful protesters aren't rounded up.