Hatim Kheir

This addendum to the Court of Appeal for Ontario’s decision in Hillier v. Ontario addresses the appropriate constitutional remedy for unjustified limits on peaceful assembly rights under the Charter during the COVID-19 pandemic.

The court discusses the principles of “reading in” and “reading down” as remedial tools, ultimately preferring reading down the impugned regulations to exclude peaceful outdoor protests of up to 10 people from the prohibition on gatherings.

The court’s approach is guided by Supreme Court authority and the need to respect legislative intent while vindicating Charter rights.

The Court of Appeal for Ontario allowed Randy Hillier’s appeal, finding that Ontario’s absolute ban on outdoor peaceful assembly during the COVID-19 pandemic was not demonstrably justified under section 1 of the Charter.

The court held that the government failed to consider the impact of the gathering limits on the right to peaceful assembly under section 2(c) and did not tailor the restrictions to accommodate this fundamental freedom, unlike the approach taken for religious gatherings.

The decision clarifies the independent constitutional status of peaceful assembly and the necessity for governments to justify limits on this right, especially in the context of political protest.

The appellant, Scott Hockaday, appealed his conviction on two counts of mischief related to his participation in the 2022 Ottawa "Freedom Convoy" protest.

The court reviewed the lawfulness of his arrest, the admissibility of evidence obtained as a result, and the sufficiency of evidence regarding his intent.

The appeal was dismissed, with the court finding that the arresting officer had reasonable grounds, the trial judge made no palpable and overriding error, and the evidence supported the conviction.

This is a case management order in a class action concerning the scheduling of an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act, seeking to stay or dismiss the action for unduly limiting freedom of expression.

The court set a timetable for the anti-SLAPP motion, making it returnable on October 11, 2023, and ordered that no further steps in the proceeding could be taken until this motion was resolved, in accordance with the Act.

A potential motion for change of venue was also noted but deferred.

The moving parties, consisting of two churches and their members, brought motions to set aside judicial orders directing compliance with COVID-19 religious gathering limits.

They argued the capacity restrictions infringed their freedom of religion under s. 2(a) of the Charter.

The court found that the numerical and percentage capacity limits did infringe s. 2(a) by interfering with the claimants' ability to engage in religious activity as a collective in-person congregation.

However, applying the Oakes test, the court concluded that the restrictions were demonstrably justified under s. 1 of the Charter as a reasonable limit in a free and democratic society to protect public health during the pandemic.

The motions were dismissed.

The appellant Crown appealed after the Court of Appeal quashed the respondent's convictions for sexual interference and invitation to sexual touching, finding them inconsistent with an acquittal on sexual assault arising from the same conduct.

The majority of the Supreme Court held that a legal error in the trial judge's jury instructions — misdirecting the jury that the 'force' required for sexual assault differed from the 'touching' required for the other two offences — materially bore on the acquittal while leaving the convictions untouched, thereby reconciling the apparent inconsistency.

The majority restored the convictions, set aside the acquittal, and entered a stay of proceedings on the sexual assault charge pursuant to s. 686(8) of the Criminal Code.

Brown and Kasirer JJ. dissented in part, arguing that the only available remedy on a Crown appeal from a jury acquittal is a new trial, and that the majority's framework invites improper speculation into jury deliberations contrary to the scheme of the Criminal Code and the Court's prior decision in R. v. J.F.