Challenging constitutionality of Ontario’s public health orders: Hillier v. Ontario

A court challenge in Ontario Superior Court in Toronto has been filed, in defence of Charter freedoms to Ontario government health Orders and to select sections of various legislation put in place during Covid.

Lawyers Sayeh Hassan, Henna Parmar, and Chris Fleury are representing former Member of Provincial Parliament (MPP) Randy Hillier who was charged in connection with peaceful lockdown protests that took place in Cornwall and Brockville. The matter will be heard on July 27 and 28, 2023.

On April 8, 2021, Mr. Hillier attended the South Bank Bistro Restaurant in Brockville, Ontario to peacefully protest against 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 against 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Although the Stay-at-Home Order and Outdoor Gathering Restrictions are no longer in effect, the consequences of these authoritative measures continue to exist for Ontarians, who are faced with fines and potential imprisonment as a result of the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, which was followed by another round of lockdown harms and what many viewed as totalitarian restrictions on the ability of Ontarians to travel, conduct business, visit family and friends, peacefully assemble, manifest their religious beliefs, and breath freely.

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, which prohibited organized public events and outdoor gatherings, and required everyone to remain at home except for essential purposes.

Since March 17, 2020, the Ford government repeatedly declared and extended orders that suppressed constitutionally-protected rights and freedoms as guaranteed by the Canadian Charter of Rights and Freedoms. 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.

Three expert reports have been filed on behalf of the Applicant.

Medical anthropologist Dr. Bardosh sets out the harms of lockdown measures and other Covid-19 restrictions in Canada. He examines 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, discusses the factors governments need to take into consideration before implementing onerous public health measures. In particular, 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.

Cross examination of the Applicant’s experts and the experts of the Government has been completed. Comprehensive written submissions have been filed on behalf of Mr. Hillier.

As part of the court challenge, which is set to be heard on July 27 and 28, 2023, the lawyers will argue 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).

“The people of Ontario have suffered as a result of these arbitrary lockdowns, some of the worst in Canada for more than two years. A total ban on peaceful assembly that prevents Ontarians from voicing their opposition to the government measures is unacceptable in a free and democratic society such as Canada,” states lawyer Henna Parmar.

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