TORONTO, ON: The Justice Centre for Constitutional Freedoms announces that the Appeal hearing for Randy Hillier’s Charter challenge to Ontario’s Covid Stay-At-Home Order, will be heard on September 19, 2024, at the Ontario Court of Appeal in Osgoode Hall, 130 Queen St. W. Toronto, beginning at 10:30 AM ET.
On April 8, 2021, Mr. Hillier, a former Ontario Member of Provincial Parliament, attended a peaceful protest in Kemptville, ON. Less than a month later, on May 1, 2021, he attended another protest in Cornwall. Mr. Hillier spoke to protestors about the importance of the Canadian Charter of Rights and Freedoms and the harms caused by the province’s Stay-At-Home Order. At events across the province, he also spoke against the Reopening Ontario Act, which restricted some activities while permitting others. He believed that the restrictions violated his right to peaceful assembly under Section 2(c) of the Charter and that the government could not justify the violations under the Charter‘s Section 1.
Over the course of the lockdowns, Mr. Hillier received 25 tickets. With the assistance of lawyers supported by the Justice Centre, 20 of those tickets with fines have been withdrawn or stayed at the request of the respective Crown prosecutors. Mr. Hillier still faces tickets in five separate jurisdictions for participating in peaceful protests against Covid restrictions. In three jurisdictions, he is alleged to have been an organizer, which increases the mandatory minimum fine to $10,000.
In June of 2022, Mr. Hillier filed a Notice of Application challenging the provincial government’s Stay-At-Home Order and the Reopening of Ontario Act on constitutional grounds in the Superior Court of Justice of Ontario. (Read the Factum of the Applicant)
Justice Joseph Callaghan dismissed that challenge in a ruling issued November 22, 2023.
Mr. Hillier filed a Notice of Appeal with the Ontario Court of Appeal on December 22, 2023. The Appeal Perfection documents were filed February 21, 2024.
The Appeal alleges that, among other things, Justice Callaghan erred in applying the Oakes test. As the Notice of Appeal states, Justice Callaghan “fail[ed] to recognize that a complete ban on Charter protected activity is subject to a more onerous test for demonstrable justification at the minimal impairment and proportionality branches of Oakes.”
The Appeal also alleges that the Justice made a mistake by upholding a hierarchy of rights, where outdoor in-person religious gatherings, protected under Charter section 2(a), were permitted. But outdoor protests, protected under Charter section 2(c), were not allowed even though there was no evidence presented showing protests carried greater risks than religious gatherings.
Justice Callaghan’s ruling did not reference any evidence of lockdown harms within the Applicant’s Expert Report of Dr. Kevin Bardosh, and he stated that Dr. Bardosh is “not a public health expert” without explaining this opinion.
The Report of Dr. Bardosh showed 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 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 is looking forward to his day in court. He says, “September 19th, 2024 will become an historic day in Canada; either a day to be celebrated or a day to remember with shame. The Ontario Court of Appeal will determine whether Canadians are fundamentally free to gather and peacefully protest government policies as an unalienable right, or if politicians have license to criminalize their political opposition.”
Lawyer Chris Fleury says, “Ontario’s decision to put every single citizen on a form of house arrest for 55 days was a measure not seen outside of totalitarian states. It was unscientific and overwhelmingly harmful. Most importantly for this appeal, it was not minimally impairing of Mr. Hillier’s right to assemble for peaceful protest.”
