Randy Hillier, a former Progressive Conservative and then independent MPP, was a prominent critic of COVID-era lockdowns, mask mandates, and vaccine passports. In 2021, Hillier attended and helped organize several outdoor gatherings to protest such policies.  

Consequently, Hillier was charged with two provincial offences under the (somewhat ironically named) Reopening Ontario Act. He faced a penalty of between $10,000 to $100,000 and up to a year of prison. 

But Hillier challenged the constitutionality of the specific regulation under the Act that he was charged with violating. That regulation did not allow outdoor gatherings of any size at all, although it allowed very small indoor or outdoor gatherings for weddings, funerals, and religious worship services. 

Hillier contended that the regulation violated his freedom of peaceful assembly under section 2(c) of the Canadian Charter of Rights and Freedoms. Unlike most COVID court cases, Hillier’s case was exclusively about freedom of assembly. 

The lower court upheld the regulation. Last week, a unanimous Court of Appeal ruling overturned that ruling and declared the regulation to be constitutionally invalid. This is the first major court ruling that found COVID-era restrictions on gatherings unconstitutional. Every other ruling – including the three cases that ARPA intervened in in British Columbia, Manitoba, and Ontario regarding worship services – had upheld the bans on gathering. 

Court of Appeal overturns lower court ruling 

Justice Lauwers, for a unanimous Court of Appeal, distinguished this case from the failed challenges to strict size limits on worship gatherings, noting that “while Ontario tailored restrictions on religious gatherings to facilitate freedom of religion, no such tailoring was performed to facilitate the right to peacefully assemble.” 

The Court concluded that there was no evidence that the government had even considered making any exceptions to its general gatherings ban to allow for some form of limited, peaceful assemblies and political protests. “The effect of the ban in this case was to stifle assembly aimed at expressing collective opposition to the ban itself.” 

Justice Lauwers noted that there is little case law on freedom of assembly, as constitutional cases involving assemblies are often litigated primarily on other grounds – especially freedom of religion, expression, and association. Consequently, the Court relied heavily on academic commentary on freedom of assembly rather than on court precedents. 

The purposes of freedom of assembly 

But freedom of assembly is important in its own right. “[T]he point in setting the right of assembly apart from [expression] and [association] is the assembly itself,” the judgment says, quoting a recent essay on freedom of assembly by Professor Jamie Cameron. “Put another way, the assembly is, in its own right, ‘the constitutional event’.” 

Given the lack of precedent, the judgment relies extensively on Professor Cameron’s analysis of what freedom of assembly requires, as well as Professor Richard Moon’s.  

The Court considers the underlying purposes of freedom of assembly, noting that assembly “can advance the democratic goals of ‘self-government, truth seeking, and self-realization’” and can “empower unheard, marginalized voices.” A public assembly can “leverage a message of protest or dissent, forcing the community to pay attention and become involved in redressing grievances.” 

The Court also highlighted several points from Professor Richard Moon’s commentary on freedom of assembly. Notably, “a demonstration is an act of solidarity […] but also [a] collective act of expression.” Protests may “help overcome the fragmentation of public discourse,” and “[give] a sense of presence, and connection with others, that is lacking in mediated forms of communication.” Also, Moon writes, protests “can make visible the extent and depth of support for a position.” 

Freedom of assembly protects both the act of assembling together in a physical location and the activities related to achieving that, such as planning for and publicizing the gathering, and travelling to and from the assembly. Further, digital connectivity and virtual meetings may complement but do not replace participation in physical public assemblies. 

Ontario government failed to enact proportional gatherings limit 

The Court found that the government had failed to consider whether there were less restrictive means of achieving its legislative goal of minimizing the spread of COVID. Put another way, the government failed to consider if there were forms of limited public protest that could be permitted without unacceptable risk of viral spread. At the same time, the government had come up with tailored (albeit very restrictive) policies for other activities, such as shopping for essentials, or gathering for a funeral or a worship service.  

Justice Lauwers goes on to conduct a “proportionality analysis,” as required by Supreme Court of Canada precedent. This analysis requires judges to weigh the “deleterious effects” on a Charter right or freedom against the “salutary effects” of the law or government decision being challenged in court. In other words, did the benefits of the policy outweigh the costs? 

Before answering this question, Justice Lauwers notes, “The core problem with [determining] proportionality is that the detriments to be suffered by individuals and groups in any case […], on the one hand, and the benefits that accrue to the common good, on the other, are usually incommensurable.” By “incommensurable,” he means: “There is no common basis, common denominator or common measure for evaluating and balancing the competing claims of the individuals and groups negatively affected by a law or decision, against any benefits to the common good.” 

It is heartening to see judges acknowledge this problem, since the “proportionality” analysis can easily be used to disguise judicial policy or political biases. Still, this is the approach prescribed by the Supreme Court, so Justice Lauwers does his best. He highlights that “there is no evidence as to the increase in risk posed by the outdoor protests in which Mr. Hillier participated.” The onus was on the government of Ontario to show that allowing any outdoor protests of any size posed a significant risk. It failed to do so. 

Takeaways 

First, this is a personal win for Randy Hillier. Unless the government appeals, Hillier will be free from the threat of penalties, as the regulation he is charged with breaching has been declared void. 

Second, the restrictions on peaceful assembly are no longer in force, so this ruling didn’t strike down any law. But it forms an important precedent that should give governments pause before completely banning a constitutionally protected activity, even temporarily.  

Finally, we congratulate our friends at Christian Legal Fellowship for publishing the 2022 essay collection about protecting Charter freedoms that included Professor Cameron’s essay, mentioned above, which proved to be of great assistance to the court.