The Ontario government’s legislation arising out of the COVID pandemic has given rise to a number of business disputes.  Many of them, for example, relate to commercial leases and the question of whether or not a tenant can rely on the government’s requirement that the tenant close its business for various periods of time as a basis for refusing to pay rent.

The legislation has also given rise to more fundamental questions, including its impact on the freedoms guaranteed to Canadian citizens in our Charter of Rights and Freedoms.

This was addressed in a constitutional challenge presented by former MPP, Randy Hillier in his application against the Province of Ontario in which he challenged the constitutionality of certain government regulations restricting the rights of Ontario citizens to gather outdoors. 

The Court of Appeal addressed this question in a recent decision worth considering.

As we will all recall, after the outset of the pandemic the Ontario government passed regulations prohibiting people from attending gatherings outdoors.  The regulation included exceptions for weddings, funerals and religious services provided that the number of people involved was limited to 10.

No exception was provided for any other peaceful assembly, such as political protests. 

Mr. Hillier attended several such protests between April and May 2021, made illegal by the COVID legislation, and allegedly acted as their host or organizer.  As a result of two of them, he was charged with provincial offences under which, had he been found guilty, he would have faced a substantial fine and possible imprisonment. 

Mr. Hillier challenged the constitutionality of those regulations on the basis that they contravened his right under section 2(c) of the Canadian Charter of Rights and Freedoms to peaceful assembly.

The Charter provides, in its section 1, that the rights and freedoms set out in it are subject to such reasonable limits prescribed by law as can be demonstrably justified.  Mr. Hillier’s argument was that the restrictions on his right to peaceful assembly could not be justified and that therefore, they were unconstitutional and unenforceable.

The judge at first instance disagreed with Mr. Hillier and ruled that the gathering limits were demonstrably justified.  Mr. Hillier appealed to the Court of Appeal.

The Court of Appeal observed that government decisions attempting to balance competing interests during the health crisis was deserving of a measure of deference.  As the Court said, Ontario should not be held to a standard of perfection.  Furthermore, hindsight is not the proper lens through which to view the necessity of the gathering limits of which Mr. Hillier complained.  Instead, the Court should contextually consider what was known and considered by the government at the time it imposed the limits. 

The Court pointed out, quoting an earlier text, that in principle, freedom of assembly works in concert with other fundamental freedoms. It forms part of an interrelated system that serves core democratic functions, such as freedom of expression.  Assemblies can leverage a message of protest or dissent, forcing the community to pay attention.  Assemblies with a political message (such as those attended by Mr. Hillier) should receive a “heightened level of accommodation and protection”.

Accordingly, as a form of peaceful assembly, political protests are given constitutional protection.  In this case, the ban on such activities was absolute.  There was no exception for gatherings of 10 or less.  They were simply prohibited.

The Court went on to consider whether that prohibition could be justified under section 1 of the Charter.  The Court determined that in order to justify its position, Ontario simply had to establish a reasoned apprehension that such assemblies would run contrary to the objective of preventing the spread of COVID-19 to some extent.  The Court of Appeal had no difficulty agreeing with the motion judge that restricting the gathering of people, even outdoors, was a rational means of reducing the transmission of COVID-19.

However, that was not the end of the story.  Where Charter rights are restricted, it is also necessary to demonstrate that the deprivation is limited to what is reasonably necessary to achieve the government’s objective.  In other words, Ontario had to demonstrate that the less drastic means were unavailable.

This led the Court to analyze the extent to which the ban on peaceful assembly actually mitigated the risk of the spread of COVID-19.  This in turn led to the conclusion that there was no evidence as to the increase in risk that would have been posed by an exemption for outdoor peaceful assembly or protests that matched the exemption for other types of gatherings. 

Furthermore, the Court was clearly troubled by the fact that there was no evidence of the Ontario government that even considered this possibility.

Ultimately, the Court allowed the appeal on the basis that the negative effects of the absolute ban on peaceful assembly exceeded the benefits with respect to the spread of COVID-19.  The Court determined that the outright ban could not meet the minimal impairment test.

This had to be a close and difficult call to make.  As the Court had observed, this was not an assessment to be made with the benefit of hindsight.  In that sense, the Court was really saying the Ontario government should have considered the impact of an absolute ban on peaceful assembly, and perhaps carved out a 10-person exemption for all gatherings.  And it should have done so while grappling with an unprecedented, life-threatening situation.

The Court was clearly concerned to protect gatherings that involved political protests. Perhaps there was a concern that with an absolute ban, the government was preventing people opposed to the government’s programs in response to the pandemic from making their views known.  Having said that, how many political rallies involve 10 people or less?