Darren Leung

Randy Hillier, a former Member of Provincial Parliament, challenged the constitutionality of Ontario's COVID-19 Gathering Restrictions (O. Reg. 82/20 and O. Reg 265/21), arguing they violated his Charter right to peaceful assembly under s. 2(c).

He faced charges for attending political protest rallies during the spring 2021 lockdown.

While Ontario conceded the s. 2(c) infringement, it argued the restrictions were justified under s. 1 of the Charter.

The court, applying the Oakes test and relying on the precedent set by Ontario (Attorney General) v. Trinity Bible Chapel, found that the restrictions served a pressing and substantial objective (reducing COVID-19 transmission and protecting the healthcare system), were rationally connected to that objective, minimally impaired Charter rights given the urgent and uncertain circumstances, and were proportionate.

The court emphasized the application of the precautionary principle in public health emergencies.

The application was dismissed, and no costs were awarded.

This appeal involved a constitutional challenge to Ontario's COVID-19 public health measures, specifically the proof of vaccination requirement enacted by Ont.

Reg 364/20.

The Court of Appeal dismissed the appeal as moot because the provincial government had ceased enforcement and subsequently revoked the Regulation.

The court declined to exercise its discretion to hear the moot appeal, finding no practical effect for the declaratory relief sought and that the claim for nominal damages did not cure mootness.

Concerns about judicial economy and the utility of deciding fact-specific constitutional issues in the absence of a live controversy also weighed against exercising discretion.