Provincial restrictions on gatherings that prohibited peaceful protests in Ontario for several weeks during the COVID-19 pandemic were unconstitutional, the province’s top court ruled Monday.
The Court of Appeal for Ontario made the finding in a case brought by former Ontario legislator Randy Hillier, who faced several charges for organizing or hosting protests against pandemic measures while the rules were in effect in the spring of 2021.
Hillier appealed after the judge who heard his application found that while the limits on gatherings did infringe on his right to peaceful assembly, they were demonstrably justified and therefore constitutional.
The three-judge appeal panel unanimously found that the application judge incorrectly applied the necessary legal test in coming to that conclusion.
The Appeal Court said the application judge looked at the impact of the restrictions broadly rather than on the right to peaceful assembly specifically.
It noted that while the province had made exceptions for other types of gatherings, such as weddings and funerals, the rules amounted to an “outright ban” on protests.
“The effect of the ban in this case was to stifle assembly aimed at expressing collective opposition to the ban itself,” the court said, adding that outdoor protests are “especially effective at amplifying minority voices and expressing political dissent.”
There is also no evidence that the province ever considered an exemption for outdoor political protests, the court wrote.
“Can the court, in assessing the state’s justification, countenance an outcome in which the state eliminates the free exercise of a fundamental freedom without giving that elimination any actual thought?” the ruling says.
“Such an outcome would be entirely contrary to the purpose of the charter in protecting the free exercise of fundamental freedoms against the limiting actions of government.”
Ontario COVID rules barring protests unconstitutional: Court | Toronto Sun
The Court of Appeal for Ontario made the finding in a case brought by former Ontario legislator Randy Hillier, who faced several charges for organizing or hosting protests against pandemic measures while the rules were in effect in the spring of 2021.
Hillier appealed after the judge who heard his application found that while the limits on gatherings did infringe on his right to peaceful assembly, they were demonstrably justified and therefore constitutional.
The three-judge appeal panel unanimously found that the application judge incorrectly applied the necessary legal test in coming to that conclusion.
The Appeal Court said the application judge looked at the impact of the restrictions broadly rather than on the right to peaceful assembly specifically.
It noted that while the province had made exceptions for other types of gatherings, such as weddings and funerals, the rules amounted to an “outright ban” on protests.
“The effect of the ban in this case was to stifle assembly aimed at expressing collective opposition to the ban itself,” the court said, adding that outdoor protests are “especially effective at amplifying minority voices and expressing political dissent.”
There is also no evidence that the province ever considered an exemption for outdoor political protests, the court wrote.
“Can the court, in assessing the state’s justification, countenance an outcome in which the state eliminates the free exercise of a fundamental freedom without giving that elimination any actual thought?” the ruling says.
“Such an outcome would be entirely contrary to the purpose of the charter in protecting the free exercise of fundamental freedoms against the limiting actions of government.”
Ontario COVID rules barring protests unconstitutional: Court | Toronto Sun
