Hatim Kheir

The applicants, an anti-abortion organization and its youth coordinator, sought to display graphic images of fetuses during a protest on Parliament Hill.

Officers from the Parliamentary Protective Service (PPS) prohibited the display, citing rules against obscene or hateful messages.

The applicants brought an application arguing this violated their freedom of expression under s. 2(b) of the Charter.

The Superior Court of Justice found that the PPS's operational decision breached the applicants' Charter rights and was not justified under s. 1, as the specific prohibition on graphic images was not yet published at the time.

The court granted a declaration that the rights were infringed but declined to strike down the rules governing Parliament Hill, as the rule-making committee was not a party to the proceeding.

A former municipal councillor sought judicial review of an integrity commissioner’s report and council decision imposing a 90-day suspension of remuneration for breaching a municipal COVID-19 vaccination policy and refusing to disclose vaccination status.

The applicant argued, for the first time on judicial review, that the decision infringed freedom of expression by punishing her right not to speak.

The Divisional Court held that the commissioner had sufficiently considered the relevant Charter values through the privacy, autonomy, and silence arguments actually advanced, and had reasonably balanced those values against the statutory objectives of enforcing the code of conduct and maintaining a workable vaccination policy.

The court also held that it was reasonable to interpret the policy as requiring councillors to disclose vaccination status and that the maximum penalty was reasonable.

The application was dismissed with partial indemnity costs of $7,500.

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.

The applicant, a school board trustee, sought judicial review of the school board's decision finding he breached its Code of Conduct and imposing sanctions.

The applicant argued he was denied procedural fairness due to in camera meetings and alleged bias of the Chair, and that the decision unreasonably infringed his freedom of expression.

The Divisional Court dismissed the application, finding the applicant was afforded adequate procedural fairness, the in camera meetings were statutorily permitted due to related litigation, and the board reasonably balanced the applicant's Charter rights with its statutory obligations.

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 applicant sought judicial review of a school board's decision denying her request to make an oral presentation at a board meeting regarding the flying of the pride flag and transgender issues.

The Divisional Court dismissed the application primarily due to an egregious and unexplained 21-month delay in perfecting the application.

In the alternative, the court found the board's decision was reasonable, as the proposed presentation contradicted the board's statutory duties to promote an inclusive school climate, and the board minimally impaired the applicant's freedom of expression by offering to distribute her presentation in written form.

The appellants, two churches and their members, challenged the constitutionality of Ontario's COVID-19 regulations that imposed capacity restrictions on indoor and outdoor religious gatherings.

The motion judge found that the regulations infringed the appellants' freedom of religion under s. 2(a) of the Charter but were justified under s. 1.

On appeal, the appellants argued the motion judge erred in her treatment of expert evidence, her refusal to use hindsight evidence, her decision not to conduct separate analyses for other s. 2 Charter rights, and her s. 1 justification analysis.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's deferential approach to the government's response to an unprecedented public health emergency, her application of the precautionary principle, or her conclusion that the measures were minimally impairing and proportionate.

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.

The appellant was found not criminally responsible for uttering threats to burn property and breaching court orders.

The Ontario Review Board ordered her detention at a forensic mental health centre.

She appealed, arguing the Board erred in finding she posed a significant threat to the public and in failing to consider a conditional discharge.

The Court of Appeal dismissed the appeal, finding the Board's decision was reasonable and supported by the treating psychiatrist's evidence that the appellant lacked community supports, had a history of non-compliance, and would likely revert to substance abuse and decompensate if released.