On April 7, 2025, the Ontario Court of Appeal delivered a landmark decision in Hillier v. Ontario, overturning a lower court ruling and upholding the Charter rights of former MPP Randy Hillier. This decision, which found that Ontario’s blanket ban on outdoor gatherings during the 2021 COVID-19 lockdowns unjustifiably infringed on the freedom of peaceful assembly, is a significant victory for Canadian democracy and a crucial reminder of the importance of safeguarding fundamental rights, even in times of crisis.
The case stemmed from charges laid against Mr. Hillier for attending peaceful protests in the spring of 2021. These protests, focused on the harms caused by the province’s lockdown regulations, were met with strict enforcement of health orders that prohibited virtually all outdoor gatherings. The government’s position was that these measures were necessary to curb the spread of COVID-19. However, the Court of Appeal rightly recognized that the complete ban on peaceful assembly went too far, violating Section 2(c) of the Canadian Charter of Rights and Freedoms.
This decision is a rare but welcome victory for freedom in a landscape increasingly dominated by government overreach. The court’s ruling, which overturned a lower court’s justification of the province’s 2021 “stay-at-home” orders, serves as a crucial reminder that even during times of crisis, Charter rights cannot be suspended on flimsy pretexts.
The Court of Appeal rightly framed the central question as a two-part inquiry: Did the gathering restrictions violate Mr. Hillier’s freedom of peaceful assembly under Section 2(c) of the Charter, and if so, was that violation justified under Section 1?
The court’s finding that the orders did indeed breach Charter rights that couldn’t be justified is significant. The court highlighted the revealing inconsistency in how some gatherings were accommodated while others were outright banned. As the ruling stated, “while Ontario tailored restrictions on religious gatherings to facilitate freedom of religion, no such tailoring was performed to facilitate the right to peacefully assemble… The pandemic posed significant challenges for Ontario, but the Constitution does not fade from view in times of crisis.”
This point is critical. While public officials often claim to have engaged in extensive consultations to protect rights, the reality is that freedom of assembly was often overlooked or deliberately suppressed. The Hillier decision exposes the hypocrisy of a government that selectively restricted rights based on its own perceived interests.
Challenging the “Trust the Experts” Approach
For too long, government lawyers have been successful in convincing judges to suspend rights based on little more than the government must be “trusted” as they have all the expertise. The Hillier decision represents a departure from this trend, signaling a willingness by the courts to scrutinize government actions and hold them to a higher standard.
The lower court’s ruling, like so many others, deferred to the “experts” without posing any real challenge to their claims. By conceding the “pressing and substantial concern” of COVID-19, litigants were often reduced to arguing that the impairment of rights was not minimal or was excessive. This approach, while perhaps pragmatic, often doomed these cases to failure.
However, the Hillier case ultimately benefited from the government’s reliance on Trinity Bible Chapel. While that case initially seemed to justify restrictions on outdoor assemblies, the Court of Appeal recognized a crucial difference: religious gatherings were restricted, while political gatherings were prohibited outright. This distinction exposed the government’s double standard and undermined its claim that the restrictions were minimally impairing.
Exposing the Hierarchy of Rights
The Hillier decision also touches on the troubling concept of a “hierarchy of rights.” While the government argued that this was a new issue raised on appeal, the reality is that the case exposed a pattern of selectively restricting rights based on the government’s own priorities. As the court noted, “the Gathering Limits prohibited outdoor gatherings for political purposes while allowing certain religious gatherings.”
This raises a fundamental question: Why were some activities deemed more essential than others? Could it be that political gatherings pose a potential threat to the government in times of crisis where as religious gatherings do not? It is a question that must be considered given the differences of treatment as noted in the Hillier decision.
A Call for Vigilance
While the Hillier decision is a victory, it is important to maintain perspective. Doug Ford, the premier who imposed these draconian measures, remains in power, having been re-elected in 2022 and 2025. He has faced no real consequences for his government’s actions during the Pandemic.
The Hillier decision is a ray of hope in a dark time. It is a reminder that Charter rights matter and that the courts have a crucial role to play in protecting them. Hopefully, this decision will embolden future litigants to challenge government overreach and inspire greater pushback against any future attempts to impose martial law.
The Hillier decision is a victory for freedom, but the fight is far from over. We must remain vigilant and continue to defend our Charter rights against any and all threats. Be under no illusions to fight back in times of crisis takes much courage and resilience that few are willing undertake.
