COVID-19 rules barring protests in 2021 were unconstitutional: Ontario’s top court

TORONTO — 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 reads.

“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.”

The court has asked for submissions on possible remedies over the next few weeks.

Hillier welcomed the ruling Monday as well as the court’s recognition of the importance of the right to protest, saying he had spent the last several years fighting for what he believes is right.

When those who protest against government decisions are criminalized, he said, “there is no democracy.”

Hillier, who represented the riding of Lanark—Frontenac—Kingston as an independent legislator at the time, said he initially faced roughly two dozen charges related to COVID-19 protests in communities including Kemptville and Cornwall. All but five have now been withdrawn or stayed, he said.

If found guilty, the charges carry penalties of up to $100,000 and up to a year in jail, he said.

In its ruling the Appeal Court said there are no allegations that the protests Hillier took part in were anything but peaceful.

“Police action to disperse the protests was not necessary. In short, these were plain vanilla outdoor political protests,” it wrote.

The Ontario government tightened pandemic rules in April 2021 in response to a surge in COVID-19 cases.

The measures included a shutdown order that banned outdoor gatherings of more than five people, closely followed by an order requiring everyone to stay at home except for certain types of gatherings, such as weddings and funerals.

The stay-at-home order didn’t allow people to go out for peaceful protests, the court said. The shutdown order was soon amended to prohibit all outdoor gatherings except for weddings, funerals, religious services and people living alone meeting with other households, again with no exemption for protests, it said.

In late May 2021, the shutdown order once again allowed outdoor gatherings of up to five people, but still with no exception for protests, it said.

The stay-at-home order expired in early June of that year, while the shutdown order was extended until its expiry in March 2022, the court said.

The limits deemed unconstitutional were those in effect between April 17 and May 22, 2021.

This report by The Canadian Press was first published April 7, 2025.

Paola Loriggio, The Canadian Press