On June 6, 2023, a court challenge in Ontario Superior Court in Toronto was filed on behalf of former Member of Provincial Parliament (MPP), Randy Hillier, against Public Health Orders and to select sections of various legislation put in place during Covid in defence of Charter freedoms. Mr. Hillier had been charged in connection with peaceful lockdown protests that took place in Cornwall and Brockville in spring 2021. [Read the Factum of the Applicant]
On April 8, 2021, Mr. Hillier attended the South Bank Bistro Restaurant in Brockville, Ontario to peacefully protest the Ontario government’s Stay-at-Home Order, which came into force on the same date, and Covid lockdown measures.
On May 1, 2021, after the extension of the Stay-at-Home Order, Mr. Hillier was invited to attend another peaceful protest of the lockdown measures, which took place in Cornwall, Ontario. Mr. Hillier spoke to a group of protestors emphasizing the importance of Canadians’ fundamental freedoms as guaranteed under the Canadian Charter of Rights and Freedoms.
As a result of attending these protests, Mr. Hillier was charged under the Reopening Ontario Act for failing to comply with an Order. If found guilty, he could be fined up to $100,000 and spend one year in prison. In addition, Mr. Hillier was charged with hosting/organizing a public event where the number of those in attendance exceeded the number permitted under an Order, for which the minimum penalty is $10,000.
Although the Stay-at-Home Order and Outdoor Gathering Restrictions are no longer in effect, the consequences of these authoritative measures continue to exist for Ontarians, who continue to face outstanding fines and potential imprisonment as a result of the offence provisions contained in the Reopening Ontario Act.
In response to the outbreak and inconsistent predictions regarding Covid, the Ontario government first declared a state of emergency on March 17, 2020. Under the pretense of “two weeks to flatten the curve,” the resulting lockdown devastated small businesses and led to large-scale societal harm in the form of increased unemployment and poverty, cancelled surgeries, the loss of personal liberty, and even death.
On January 12, 2021, the Ontario government again declared a state of emergency and imposed a stay-at-home order, stating, “We need people to only go out only for essential trips to pick up groceries or go to medical appointments. By doing the right thing and staying home, you can stay safe and save lives.”
The Ontario government declared its third state of emergency on April 7, 2021, which was followed by another Stay-at-Home Order issued under the Emergency Management and Civil Protection Act, requiring everyone to remain at home except for essential purposes, such as going to the grocery store or pharmacy, accessing health care services (including getting vaccinated), for outdoor exercise , or for work that cannot be done remotely.
Since March 17, 2020, the Ford government repeatedly declared and extended orders. The Stay-at-Home Order in response to the third state of emergency, which was extended on May 1, 2021, not only prohibited visiting friends and family and holding small gatherings, but also put a complete ban on peaceful protests. It became illegal to exercise the fundamental Charter freedoms of association and peaceful assembly without facing the threat of fines and even jail.
The challenge was heard on July 27 and 28, 2023 before Callaghan J. at the Ontario Superior Court of Justice in Toronto during which the lawyers argued that the Stay-at-Home Order and Outdoor Gathering Restrictions violated Charter-protected rights, such as the freedom to assemble peacefully guaranteed pursuant to s.2(c).
Three expert reports were filed on behalf of the Applicant:
Medical anthropologist Dr. Bardosh set out the harms of lockdown measures and other Covid-19 restrictions in Canada. He examined the social cost of the measures, including increased depression, substance abuse and suicide, along with decreased trust in public institutions.
Another expert report prepared by Dr. Joel Kettner, former Chief Medical Officer of Manitoba, discussed the factors governments needed to take into consideration before implementing onerous public health measures. Dr. Kettner states that public health measures should have clearly defined goals that are measurable and time-defined and shown to significantly contribute to these goals. The measures should also be monitored for any harms.
Finally, a report prepared by an infectious disease specialist confirms that the risk of outdoor transmission is extremely low.
On November 27, 2023, the Justice Centre was disappointed to share that the Ontario Superior Court of Justice had dismissed MPP Randy Hillier’s constitutional challenge to Ontario’s 2021 Stay-At-Home Order in a decision that limits the Charter right of Canadians to assemble peacefully.
Lawyer Chris Fleury, representing Mr. Hillier in this matter, stated, “Throughout 2021 and 2022, Ontario imposed some of the harshest lockdowns globally. The justification continues to be that Ontario’s healthcare system risked being overburdened. Justice Callaghan’s Decision correctly notes that Ontario has the lowest hospital beds per capita of any OECD jurisdiction. It is distressing to think that the government’s severe mismanagement of healthcare over the course of decades can become a justification for the infringement of Charter rights, and the decision to put every single Ontarian on house-arrest-style conditions. Mr. Hillier and I are very disappointed with this outcome and will be reviewing the decision closely to decide whether or not to appeal.”
Justice Centre President John Carpay remarked, “The court has deliberately ignored the abundant evidence of lockdown harms that was put before the court and, therefore, has no rational basis for affirming the government’s severe and prolonged violations of Charter rights and freedoms.”
Mr. Hillier still faces five tickets for participating in peaceful protests against Covid restrictions.
UPDATE: September 19, 2024
A Notice of Appeal was filed on January 10, 2024. The Appellant’s Factum was filed on February 21, 2024. The government filed their Respondent Factum on May 22, 2024.
The Appeal hearing is scheduled for September 19, 2024, at the Ontario Court of Appeal in Osgoode Hall, 130 Queen St. W. Toronto, beginning at 10:30 AM ET.
Mr. Hillier’s Appeal alleges that, among other things, Justice Callaghan erred in applying the Oakes test. As the Notice of Appeal states, Justice Callaghan “fail[ed] to recognize that a complete ban on Charter protected activity is subject to a more onerous test for demonstrable justification at the minimal impairment and proportionality branches of Oakes.” 
The Appeal also alleges that the Justice made a mistake by upholding a hierarchy of rights, where outdoor in-person religious gatherings, protected under Charter section 2(a), were permitted. But outdoor protests, protected under Charter section 2(c), were not allowed even though there was no evidence presented showing protests carried greater risks than religious gatherings.
Justice Callaghan’s ruling did not reference any evidence of lockdown harms within the Applicant’s Expert Report of Dr. Kevin Bardosh, and he stated that Dr. Bardosh is “not a public health expert” without explaining this opinion.
The Report of Dr. Bardosh showed alarming mental health deterioration during the pandemic among Canadians, including psychological distress, insomnia, depression, fatigue, suicide ideation, self-harm, anxiety disorders and deteriorating life satisfaction, caused in no small part by prolonged lockdowns. Many studies show that mental health continued to decline in 2021 compared to 2020. The expert report also provides abundant data about other lockdown harms, including drug overdoses, a rise in obesity, unemployment, and the destruction of small businesses, which were prevented from competing with big-box stores.
Mr. Hillier is looking forward to his day in court. He says, “September 19th, 2024 will become an historic day in Canada; either a day to be celebrated or a day to remember with shame. The Ontario Court of Appeal will determine whether Canadians are fundamentally free to gather and peacefully protest government policies as an unalienable right, or if politicians have license to criminalize their political opposition.”
Lawyer Chris Fleury says, “Ontario’s decision to put every single citizen on a form of house arrest for 55 days was a measure not seen outside of totalitarian states. It was unscientific and overwhelmingly harmful. Most importantly for this appeal, it was not minimally impairing of Mr. Hillier’s right to assemble for peaceful protest.”
