COVID-19 rules barring protests in 2021 were unconstitutional: Ontario’s top court

Ontario MPP Randy Hillier smokes a cigarette as he speaks with the media before turning himself in at the Ottawa Police Services headquarters, Monday, March 28, 2022 in Ottawa. THE CANADIAN PRESS/Adrian Wyld

Ontario’s top court has ruled that provincial restrictions on gatherings that prohibited peaceful protests for several weeks during the COVID-19 pandemic were unconstitutional.

The Court of Appeal for Ontario made the finding today in a case brought by former Ontario legislator Randy Hillier, who faced several charges for organizing or hosting protests against pandemic measures while the rules were in effect in the spring of 2021.

Hillier appealed after the judge who heard his application found that while the limits on gatherings did infringe on his right to peaceful assembly, they were justified and therefore constitutional.

The three-judge appeal panel unanimously found that the application judge incorrectly applied the necessary legal test in coming to that conclusion.

The Appeal Court says the application judge looked at the impact of the restrictions broadly rather than on the right to peaceful assembly specifically.

It notes that while the province had made exceptions for other types of gatherings, such as weddings and funerals, the rules amounted to an “outright ban” on protests.

There is also no evidence that the province ever considered an exemption for outdoor political protests, the court wrote.

“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 ruling reads.

“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 has asked for submissions on possible remedies over the next few weeks.

The Ontario government tightened pandemic rules in April 2021 in response to a surge in COVID-19 cases.

The measures included a shutdown order that banned outdoor gatherings of more than five people, closely followed by an order requiring everyone to stay at home except for certain types of gatherings, such as weddings and funerals.

The stay-at-home order didn’t allow people to go out for peaceful protests, the court said. The shutdown order was soon amended to prohibit all outdoor gatherings except for weddings, funerals, religious services and people living alone meeting with other households, again with no exemption for protests, it said.

In late May 2021, the shutdown order once again allowed outdoor gatherings of up to five people, but still with no exception for protests, it said.

The stay-at-home order expired in early June of that year, while the shutdown order was extended until its expiry in March 2022, the court said.

The limits deemed unconstitutional were those in effect between April 17 and May 22, 2021.

This report by The Canadian Press was first published April 7, 2025.