Judge ignores evidence of lockdown harms when justifying Charter violations

TORONTO, ON: The Justice Centre announces that the Ontario Superior Court of Justice has 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.

In April 2021, the Government of Ontario declared a state of emergency in response to Covid and issued a Stay-At-Home Order which banned outdoor gatherings entirely. This Order required everyone in Ontario to remain at home unless they were leaving their home for purposes deemed essential by the government, such as going to a grocery store or pharmacy. The Order effectively banned peaceful protests: it became illegal to leave home to attend an organized public event or an outdoor social gathering, including gatherings for the purpose of political rallies or protests.

On April 8, 2021, Mr. Hillier attended a peaceful protest in Kemptville, Ontario. On May 1, 2021, Mr. Hillier attended another protest in Cornwall, Ontario, and spoke to protestors about the importance of the Canadian Charter of Rights and Freedoms and about the harms caused by the Stay-At-Home Order. He believed that the restrictions violated his right to peaceful assembly under Section 2 of the Charter and that the government could not justify the violation under Section 1 of the Charter.

Former Member of Provincial Parliament Randy Hillier challenged the provincial ban on outdoor protests as an unreasonable and unjustified violation of his Charter-protected freedom of peaceful assembly. At a hearing in July 2023, the Court was presented with a comprehensive expert report on lockdown harms. The report concluded that the Government of Ontario’s Covid restrictions caused “excessive and needless harm to the mental health, physical health and wellbeing of Canadians” and that these harms would have “long-term, negative consequences on the future of Canadian society.”

The expert report on the harms caused by lockdowns was authored by Dr. Kevin Bardosh, a medical anthropologist teaching at the Edinburgh Medical School and at the University of Washington. Dr. Bardosh studies the social, cultural, economic, and political factors that affect public health and has (co)authored more than 30 peer-reviewed publications. The report submitted to the Court addressed the social, mental health, medical, and economic consequences of global non-pharmaceutical interventions, including gathering restrictions.

On November 22, 2023, Justice Callaghan dismissed the constitutional challenge to the Stay-At-Home Order without any reference to the evidence of lockdown harms set out in Dr. Bardosh’s  report. Without explanation, Justice Callaghan declared that Dr. Bardosh is “not a public health expert.”

The Canadian Charter of Rights and Freedoms requires governments to justify demonstrably with persuasive evidence any violation of the freedoms of association, assembly, religion, conscience, expression, privacy, or bodily autonomy, among others. Canadians depend on judges to defend citizens from laws and government policies that violate rights and freedoms: only judges have the power and responsibility to strike down laws that fail to comply with the Charter. The Charter requires judges to consider not only the benefits (including potential benefits) of freedom-violating laws, but also the harms (including potential harms) that are inflicted on people when governments take away their freedoms. Under a test laid down by the Supreme Court of Canada in 1986 in R. v. Oakes, the government has the onus of demonstrating that freedom-violating laws do more good than harm.

The expert report of Dr. Bardosh shows 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 also 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 still faces five tickets for participating in peaceful protests against Covid restrictions.

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.”

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