In February 2022 Artur Pawlowski drove to Coutts, Alta., and gave a speech to a large group of people who were protesting COVID-19 lockdown measures and vaccine requirements — some of whom were later convicted of blockading an important highway border crossing. Although Pawlowski did not take part in the blockade himself, a trial judge found him guilty of inciting mischief contrary to the Criminal Code’s s. 430(1)(c) and s. 22 — which makes a person who counsels someone to commit a crime a party to the offence — when he told his audience to “not break the line” and “not lose your momentum.”
Sarah Miller, Jensen Shawa Solomon Duguid Hawkes LLP
“We submitted that the speech he gave did not have sufficient specificity to attract criminal liability. It was our submission that Mr. Pawlowski did not incite others to engage in mischief — i.e., the interference with property — but, rather, he incited people to gather to show solidarity with one another and to withhold their labour from their employers,” she said. “Such conduct of gathering or withholding labour do not amount to mischief and therefore Mr. Pawlowski did not incite mischief.”
But the Alberta Court of Appeal has now ruled against Pawlowski, with Justices William T. de Wit and Alice Woolley agreeing with the trial judge that there was no logical inference other than the fact that he intended to incite the protesters to continue with the blockade of the highway.
“[Pawlowski] went to the place where … he knew that obstruction and interference with the lawful use of a highway was ongoing and spoke directly and specifically to the parties engaged in that obstruction and interference, telling them to continue doing what they were doing,” the two judges wrote. “The appellant did not speak about the protesters, or in a forum where the protesters might come across his remarks; he spoke directly and specifically to the protesters and did so in a physical setting likely to amplify the impact of the encouragement he offered through his words.”
The two justices also clapped back on Pawlowski’s arguments he could not be convicted of counselling mischief because his speech was protected by the right to freedom of expression under s. 2(b) of the Charter, and he had legal justification for his actions.
“The speech given by the appellant in this case was protected by section 2(b). However, that does not mean the appellant acted with ‘legal justification’ in inciting mischief,” the two judges wrote. “The appellant cannot rely on section 2(b) for ‘legal justification.’ Freedom of expression is subject to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. The limit prescribed by law in this case is section 22 [of the Criminal Code], the counselling provision. As the appellant has not challenged the constitutionality of that provision, there is no issue as to whether it constitutes a ‘reasonable limit’ or is ‘demonstrably justified.’ The section 2(b) right is subject to an unchallenged limit and therefore is not a basis for finding legal justification.”
Justice Frans Slatter concurred with his colleagues’ opinion, asking where the line should be drawn for activities that are said to have an expressive component.
“The appropriate boundary is that physical acts which are in breach of constitutionally valid criminal laws, or inducing such acts, do not constitute ‘expression’ within the meaning of s. 2(b),” he said.
The Charter protects important constitutional rights, but it does not provide immunity for criminal conduct, Justice Slatter wrote.
“No one can justify criminal conduct, such as threats, setting off explosives or harming or killing political opponents, on the theory that this is expressive conduct that is justified by the virtue of the criminal’s underlying grievance or the Charter,” he wrote. “Protection of the ‘freewheeling debate on matters of public interest’ does not go that far. Likewise, the Charter does not provide justification to anybody who incites a third party to commit such crimes.”
As a result of its findings, the court dismissed Pawlowski’s appeal (R. v. Pawlowski, 2024 ABCA 342).
Miller, who practises with Calgary’s Jensen Shawa Solomon Duguid Hawkes LLP, said the court’s decision confirms that an individual may speak in generally positive terms about the conduct of protestors and could then be held criminally liable as a party to all actions the protestors then undertake — despite the individual not expressly endorsing the specific criminal behaviour.
“This decision is a landmark case providing a framework to law enforcement to curtail political speech and criminalize those who speak in favour of protestors or protest groups,” said Miller, who said Pawlowski was considering an appeal of the ruling.
Representatives of the Alberta Crown Prosecution Service did not reply to a request for comment by press time.
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