A new criminal offence introduced by the federal government in its foreign-interference legislation that would protect the country’s “essential infrastructure” is overly broad and could stifle legitimate protest, constitutional and civil liberties experts warn.
The 103-page foreign-interference omnibus bill, tabled on Monday, includes a new unrelated offence under the sabotage provisions of the Criminal Code. It is aimed at protecting a wide array of essential infrastructure that can either be privately or publicly owned from conduct that endangers Canadian defence or security, or risks the health or safety of the public.
The Canadian Civil Liberties Association said on Tuesday that the bill needs to be amended because it could dissuade people from participating in legitimate protests. The group’s director of fundamental freedoms, Anaïs Bussières-McNicoll, said she can’t rule out that such a bill could have been used against the 2022 anti-vaccine mandate convoy protests, had it already been law at the time.
Asked repeatedly whether the new offence could have been used to prevent past railway, pipeline and border blockades, Justice Minister Arif Virani declined to say Tuesday, adding he wouldn’t “reverse the clock” to look at past cases.
“What we’re trying to ensure is that protest is empowered, but protest is within the confines of the law and when there’s an intent to endanger, that’s when it crosses the line and could potentially result in sabotage,” Mr. Virani said.
He added that the government is including an additional safeguard by requiring the relevant attorney-general (either provincial or federal) to sign off on a decision to proceed with a sabotage prosecution.
Under the new bill, anyone who interferes with access to essential infrastructure or causes it to be “lost, inoperable, unsafe or unfit for use” with the intent to “endanger the safety, security or defence of Canada” or “cause a serious risk to the health or safety of the public or any segment of the public” could face up to 10 years in jail.
It identifies eight categories of infrastructure that are “essential to the health, safety, security or economic well-being” of Canadians. Included in those infrastructure categories are transportation, information and communication technology, water and waste water, energy and utilities, food supply and food services, health care, financial, and government operations.
Other protected categories of infrastructure can be added later by cabinet, the bill says.
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It also says the offence won’t apply to people “participating in advocacy, protest or dissent” when they do not intend to cause harm. However, the CCLA cautioned on Tuesday that the broad wording means legitimate protest could be caught up in the new legislation.
Mr. Virani’s office confirmed that the new offence is not linked to foreign interference but was included to respond to the evolving nature of the threats to Canada.
Ms. Bussières-McNicoll said her association wants the government to tighten the wording of the new offence to make sure that law enforcement cannot infer intent based on the circumstances of a protest. She also said the CCLA is concerned by how broadly the government is defining what counts as “essential infrastructure.”
“We believe that the way it’s currently worded, is overly broad and could stifle legitimate protests,” she said.
Human rights lawyer Paul Champ said the sabotage provisions are unrelated to foreign interference and should not be in the bill. The government is “speaking out of both sides of their mouth, saying on the one hand they cherish the right to protest, but then at the same time condemn protests that they deem ‘unacceptable.’”
“In my opinion, these new “sabotage of infrastructure” offences are unnecessary and an overreach,” Mr. Champ said.
Constitutional law professor Errol Mendes said the government should provide more clarity and precision around the new offence, especially whether economic impacts will count as a security risk under the new offence. That was a key argument made by cabinet ministers to justify using the Emergencies Act to shut down the 2022 convoy protests.
Another way that the new offence could have been applied to those protests is through the provision barring conduct at an essential infrastructure site that poses a serious risk to the health or safety of the public or any segment of the public, he said. Given the incessant honking from protesters in Ottawa, Prof. Mendes said the activity could fit into the offence’s provisions for a risk to a segment of the population.
Josh Dehaas of the Canadian Constitution Foundation said he’s not concerned that the bill could shut down lawful protests but said he’s suspicious of the government’s motives in creating the new offence at the same time that it is defending the use of the Emergencies Act in court.
“They’re now planning to create new criminal provisions to ban interference with ‘financial infrastructure’ and ‘transportation infrastructure’ that’s almost certainly already illegal under the Criminal Code,” Mr. Dehaas said.
Based on the timing, he said he wonders whether this is an attempt to “justify in the court of public opinion their illegal use of the Emergencies Act to suspend rights by claiming they didn’t have the legal tools necessary to stop the illegal activity associated with the convoy.”
Marieke Walsh