Ontario court admits ban on Covid protests was unconstitutional

The Court of Appeal for Ontario made the decision in a case involving former Ontario MPP Randy Hillier. Hillier had been charged for organizing or attending protests against COVID restrictions in spring 2021, during a time when the province banned most outdoor gatherings. He appealed after a lower court judge said that, while his right to peaceful assembly was violated, the government was allowed to do it under the law.

But a three-judge panel at the appeals court disagreed. They said the first judge used the wrong legal test to make the decision. The panel said the judge focused too broadly on the general impact of the rules instead of looking closely at how they affected peaceful protest rights, reports the Canadian Press.

The court pointed out that the province made exceptions to gathering limits for things like weddings and funerals, but not for political protests. That turned the rule into what the judges called an “outright ban” on protests.

There was also no proof that Ontario even thought about allowing protests during that time.

“Can the court, in assessing the state’s justification, countenance an outcome in which the state eliminates the free exercise of a fundamental freedom without giving that elimination any actual thought?” the court wrote in its decision.

“Such an outcome would be entirely contrary to the purpose of the Charter in protecting the free exercise of fundamental freedoms against the limiting actions of government.”

The court will now accept submissions from both sides on what should happen next.

In April 2021, the Ontario government brought in new pandemic rules during a spike in COVID cases. The restrictions included a shutdown order that limited all outdoor gatherings to no more than five people. Not long after that, a stay-at-home order was issued. That rule only allowed people to leave home for specific reasons like weddings or funerals—but not for protests.

Later, the shutdown rules were changed slightly. On May 22, 2021, outdoor gatherings of up to five people were allowed again, but still with no exception for protests.

The stay-at-home order ended in early June 2021. The shutdown order stayed in place until it expired in March 2022. The court found that the specific restrictions in place from April 17 to May 22, 2021, were unconstitutional.