Ontario Court of Appeal sides with Hillier in charter challenge to COVID lockdowns

Former Ontario MPP Randy Hillier has won a major victory in his constitutional challenge against the province’s COVID-19 lockdown measures, after the Ontario Court of Appeal overturned a lower court ruling that had dismissed his case.

In a decision released Monday, the court accepted Hillier’s appeal, breathing new life into his argument that Ontario’s Stay-at-Home Orders and regulations under the Reopening Ontario Act violated Charter-protected rights during the 2021 lockdowns.

Hillier was ticketed for participating in peaceful protests in Kemptville and Cornwall, where he publicly criticized the lockdown orders and spoke about the Canadian Charter of Rights and Freedoms.

The regulations in place at the time made it illegal for more than one person to assemble outdoors, a restriction Hillier argued infringed on his section 2(c) Charter right to freedom of peaceful assembly.

Ontario’s rules were stricter than those in other provinces, where outdoor gatherings of five or more people were permitted.

Hillier still faces charges in multiple Ontario jurisdictions, including Peterborough, Belleville and Smith Falls, with prosecutors reportedly awaiting the outcome of this Charter challenge before proceeding.

In his defence, Hillier submitted four expert reports, including one from Dr. Kevin Bardosh, which outlined widespread mental health and societal harms caused by prolonged lockdowns.

The report detailed increases in anxiety, depression, insomnia, suicidal ideation, and other psychological impacts, along with rising obesity, unemployment, drug overdoses and the collapse of small businesses.

Justice Joseph Callaghan had dismissed Hillier’s original Charter challenge in November 2023, stating without elaboration that Bardosh was “not a public health expert” and disregarding the evidence provided.

That ruling prompted Hillier’s legal team to file a Notice of Appeal on December 22, 2023.

The appeal centered on whether Justice Callaghan properly applied the Oakes test, a legal framework used to determine whether violations of Charter rights are justifiable in a free and democratic society. Hillier’s legal counsel argued the total ban on outdoor protest was not minimally impairing of Charter rights and failed the proportionality test under Oakes.

“It is refreshing to see a court do its job of protecting our Charter freedoms by holding government to a high standard,” said John Carpay, president of the Justice Centre for Constitutional Freedoms, which supported Hillier’s appeal.

“There was no science behind Ontario’s total ban on all outdoor protests.”

The ruling could influence other pending cases where similar charges were laid under the lockdown restrictions. Many charges against Hillier in other parts of the province have already been stayed or withdrawn.