Former MPP Randy Hillier wins bid to appeal dismissal of COVID-19 lockdown Charter challenge

Ontario's highest court has ruled that gathering limits during the COVID-19 lockdown in 2021 unjustifiably violated the Charter right to peaceful assembly, and it's allowing former Ottawa-area MPP Randy Hillier to appeal the dismissal of his challenge on the constitutionality of those limits.

In a decision published Monday, Justice Peter Lauwers wrote that peaceful assembly and political protest are "integral to a functioning democracy," and that the effect of shutdown and stay-at-home orders was to "stifle" assemblies protesting those bans.

Hillier was charged with provincial offences under the Reopening Ontario (A Flexible Response to COVID-19) Act for acting as a host or organizer at two protests in eastern Ontario in 2021: in Kemptville on April 8, and in Cornwall on May 1.

After he was charged, Hillier and his lawyers at Charter Advocates Canada — funded by the Justice Centre for Constitutional Freedoms — challenged the gathering limits. In 2023, Superior Court Justice John Callaghan determined the limits were reasonable and dismissed Hillier's challenge.

Lauwers disagreed with Callaghan's analysis, finding that Callaghan "focused on the law's overwhelming social good in preventing the spread of COVID-19, not on ways in which the fundamental freedom of peaceful assembly might still be accommodated in the delicate task of balancing," among other errors.

'Constitution does not fade from view in times of crisis'

He also noted that Ontario managed to come up with more tailored restrictions on religious gatherings in order to facilitate freedom of religion, but "no such tailoring was performed to facilitate the right to peacefully assemble."

In fact, the evidence showed that the province failed to consider it, Lauwers wrote.

"The pandemic posed significant challenges for Ontario, but the Constitution does not fade from view in times of crisis," his decision reads.

There is no evidence that an exemption to allow peaceful assembly outside would have increased risk, Lauwers found, or that matching the exemption for permitted gatherings like weddings, funerals and religious services would have increased risk. There is also no evidence of increased risk at the outdoor protests Hillier attended.

Court of Appeal Justices Benjamin Zarnett and Renee Pomerance agreed with Lauwers.

Hillier has 10 days to write to the court about what he thinks an appropriate remedy should be, with the province's submissions and any follow-up submissions by Hillier to follow. The parties aren't seeking to be reimbursed for costs.

One of Hillier's lawyers, Chris Fleury, wrote in an emailed statement that he and Hillier are "extremely pleased with the decision" and that "a Canadian Court has finally found that a government went too far in imposing Covid-era gathering restrictions and curtailing civil liberties."

He declined to comment on remedy, as the issue remains before the court.

The Ministry of the Attorney General declined to comment.