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| Sayeh Hassan |
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| Henna Parmar |
While the government failed to accommodate peaceful assembly, Ontario made accommodations for other types of gatherings including weddings, funerals and religious gatherings by placing restrictions on the number of people allowed to gather, rather than a total ban.
Since the government conceded that the impugned measures violated Mr. Hillier’s right guaranteed under s. 2(c) of the Charter, this case largely turned on the s. 1 analysis of whether the ban on peaceful assembly was constitutional. However, despite Ontario’s concession, the court chose to provide helpful analysis on the right to peaceful assembly, an area of the law that is underdeveloped and often subsumed by s. 2(b), which protects freedom of expression.
This is one of the rare cases where freedom of assembly was argued exclusively, to avoid any issues of potential subsummation of the analysis and findings, as freedom of expression can include virtual gatherings and expression while the core of peaceful assembly is gathering in person and cannot be accommodated virtually or any other non-physical manner. The Court of Appeal held:
[29] What marks this case and distinguishes it from Trinity Bible Chapel is that there is only one claim. It is advanced under s. 2(c) only, and the right of peaceful assembly is at the crux of the constitutional analysis.
The Court of Appeal found, “In this case, the ban on assemblies for political protest imposed by the gathering limits was absolute. ... No opportunity was provided, to restate the goods this fundamental freedom protects, for dissenters to attract attention, in a visible act of solidarity, to their opposition to the law by disrupting ordinary life in the hope that the protest would lead to a change in public policy; this freedom is surely elemental in a democracy.”
The court then engaged in an s. 1 analysis to determine whether this absolute ban was justified in a free and democratic society and focused its analysis on whether the ban was minimally impairing and whether the deleterious effects outweighed the salutary effects. Ultimately the court found that the total ban on protests was not constitutional.
Hillier argued, and the court agreed, that an outright ban on protests was not minimally impairing. The court drew a distinction between limits that permit no exercise of a guaranteed right or freedom versus limits that allow for a qualified exercise of the same rights, finding that a total ban on a Charter-protected right would not meet the minimal impairment test.
The court then went on to consider whether the deleterious effects of the ban on peaceful assembly were proportionate to the salutary effect of the measures, and found that the application judge erred by not paying “due regard” to the absolute ban imposed on freedom of assembly. The court found that deleterious effects of these measures included complete elimination of the fundamental right to freedom of assembly for two months, and that outdoor protests are especially effective at amplifying minority voices and expressing political dissent, and that people who wished to take part in this activity were denied the opportunity to influence public policy by this “time-honoured” method.
In analyzing whether there was any benefit to the measures, the court took an interesting approach looking at it “in human terms” rather than in abstract, and finding that while, abstractly, a complete ban on all gatherings would have a maximally effective effect on preventing the spread of COVID-19, in human terms, “such a ban was neither possible nor desirable.” The court correctly found that there is no evidence as to the increase in risk that would have been posed by an exemption for outdoor peaceful assembly or protests that matched the exemption for permitted gatherings, nor was there any evidence as to “the increase in risk posed by the outdoor protests in which Mr. Hillier participated.” The court also pointed out the fact that Ontario had not provided any evidence to suggest they had ever considered an exemption for peaceful assembly for outdoor political protests, and that limiting a fundamental right without giving its elimination any thought was contrary to the purpose of the Charter in “protecting the free exercise of fundamental freedoms against the limiting actions of government.”
This decision is arguably significant for two key reasons. First, it highlights the distinction between the right to peaceful assembly and freedom of expression. While freedom of expression can be interpreted broadly and often exercised in various forms, peaceful assembly inherently requires in-person gathering, underscoring its unique nature. Second, the case emphasizes the necessity for governments to give clear and deliberate consideration when limiting Charter-protected rights — especially where the limitation is absolute. An absolute restriction on a fundamentally protected right raises serious constitutional concerns and may not withstand justification under s. 1 of the Charter, even during an emergency.
Sayeh Hassan has over 17 years of experience in criminal law, Charter litigation and appellate law. Hassan has testified before parliamentary committees on issues of criminal law and human rights. She is the author of the book A Practitioner’s Guide to Preparing and Presenting Bail Hearings. Henna Parmar is a civil litigation lawyer in Toronto. You can reach her at info@hplawoffice.ca or @itshennaparmar. Hassan and Parmar argued the case in question at first instance, at the application level.
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