Court of Appeal for Ontario

Date: 2025-05-29
Docket: COA-23-CV-1377

Coram: Peter D. Lauwers, Benjamin Zarnett, Rochelle Pomerance

Between:
Randy Hillier
Applicant (Appellant)

and

His Majesty the King in Right of the Province of Ontario
Respondent (Respondent)

Appearances:
Christopher Fleury and Hatim Kheir, for the appellant
Ryan Cookson and Padraic Ryan, for the respondent

Heard: 2024-09-19

On appeal from the judgment of Justice John Callaghan of the Superior Court of Justice, dated November 22, 2023, with reasons reported at 2023 ONSC 6611.

Addendum

Lauwers J.A.:

[1] In our decision allowing Mr. Hillier’s appeal, reported at Hillier v. Ontario, 2025 ONCA 259, we invited the parties to provide written submissions on the remedy.

[2] The context for this addendum is set by para. 74 of the decision in which I concluded that Ontario had failed to demonstrably justify, under s. 1 of the Charter, the gathering limits in effect in the period of April 17, 2021 to May 22, 2021 on the peaceful assembly rights of Mr. Hillier under s. 2(c) of the Charter.

A. The Governing Principles

[3] I set out some governing principles addressing how the remedy might be tailored at paras. 76 to 78, relying on Schachter v. Canada, as clarified in Ontario (Attorney General) v. G. The Supreme Court instructed to avoid full declarations of invalidity when the nature of the violation and the intention of the legislature permits such an outcome. G added that: “To ensure the public has the benefit of enacted legislation, remedies of reading down, reading in, and severance, tailored to the breadth of the violation, should be employed when possible so that the constitutional aspects of legislation are preserved”. Such a remedy “cures the law’s unconstitutionality.”

[4] Further, by way of caution, the Supreme Court noted that tailored remedies should only be used “where it can be fairly assumed that ‘the legislature would have passed the constitutionally sound part of the scheme without the unsound part’ and where it is possible to precisely define the unconstitutional aspect of the law”. Accordingly, the significance of the remaining legislation should be considered to avoid interfering with the legislative objective of the law. As I mentioned at para. 79 of the decision, the court must use a scalpel, not an axe.

[5] The practical distinction between reading in and reading down was briefly discussed in G. That case dealt with the constitutionality of a law requiring those who are found not criminally responsible on account of mental disorder of a sexual offence to physically report to a police station to have their personal information added to the province’s sex offender registry. In upholding a finding of unconstitutionality, the Supreme Court considered whether to read in or to read down the impugned legislation, noting, at paras. 164-66:

Given the limited and precisely defined nature of the violation in the context of the overall scheme of the sex offender registry, some form of tailored remedy was clearly appropriate to respond to the unconstitutionality. The legislature would no doubt have enacted Christopher’s Law to apply to those convicted of a sexual offence even if it could not include those found NCRMD and granted a discharge.

In this case, reading in an individualized assessment requirement would intrude on the legislative sphere – there are many ways to provide for such an assessment and “it is the legislature’s role to fill in the gaps, not the court’s” (Schachter, at p. 705).

On the other hand, a declaration reading down Christopher’s Law such that it is of no force or effect to the extent it applies to everyone unconstitutionally affected effectively vindicates rights without interfering with aspects of the statute’s operation unaffected by the finding of unconstitutionality. Granting a tailored remedy here will better protect the public’s interest in legislation enacted for its benefit and will better respect the role of the legislature, while also safeguarding Charter rights and realizing the public’s interest in constitutionally compliant legislation. [Emphasis added.]

[6] Reading down should be applied when “the offending portion of a statute can be defined in a limited manner”. As such, the doctrine of reading down does not involve a finding of invalidity; rather, it is an interpretive device that vindicates Charter rights solely through a narrower interpretation that does not offend the Charter.

[7] Conversely, reading in “is when a court broadens the grasp of legislation by declaring an implied limitation on its scope to be without force or effect”. Reading in can be undertaken where the inconsistency is categorized as “what the statute wrongly excludes rather than what it wrongly includes”. Accordingly, “[t]his has the effect of extending the reach of the statute”. However, reading in is appropriate in only “the clearest of cases”. Usually, reading in is used in cases where:

(1) the addition of the excluded class was consistent with the legislative objective,
(2) there seemed to be little choice as to how to cure the constitutional defect,
(3) the reading in would not involve a substantial change in the cost or nature of the legislative scheme, and
(4) the alternative of striking down the under-inclusive provision would be an inferior remedy.

[8] The distinction between reading in and reading down was important in G. As the court noted, any reading in would import “an individualized assessment” requirement that would trench on the legislature’s role. But that is not this case. Here the prohibition on gatherings to be tailored is general, not specific.

B. The Principles Applied

[9] Mr. Hillier submits that the appropriate remedies would be:

a. a declaration that Schedule 4 subsection 1(1)(c) of O Reg 82/20, as it existed from April 17, 2021 to May 22, 2021, unjustifiably infringed the right to organize and participate in outdoor protests as guaranteed under section 2(c) of the Canadian Charter of Rights and Freedoms and is of no force and effect to the extent of such infringement; and

b. a declaration that O Reg 265/21 unjustifiably infringed the right to organize and participate in outdoor protests as guaranteed under section 2(c) of the Canadian Charter of Rights and Freedoms and is of no force and effect to the extent of such infringement.

[10] Ontario submits that the appropriate remedy would be a declaration that:

(a) Between April 8 and April 18, 2021, the prohibition on public events in s. 1(1)(c) of Schedule 4 of the Shutdown Order be read down to exclude peaceful outdoor protests that complied with public health guidance on physical distancing;

(b) Between April 19 and May 22, 2021, the prohibition on outdoor public events in s. 1(1)(c), Schedule 4 of the Shutdown Order be read down to exclude outdoor peaceful protests of 10 people or fewer that complied with public health guidance on physical distancing; and

(c) The requirement that individuals remain at their residence in s. 1(1) of the Stay-At-Home Order be read down to exclude individuals who left their residence for the purpose of attending an outdoor peaceful protest that was permitted by law.

[11] In its factum, Ontario addresses the issue of legislative intent: “[G]iven the state of the pandemic in spring 2021, it can be fairly assumed that Ontario would have enacted capacity restrictions on outdoor protests that were as strict as possible within constitutional limits.” Ontario adds a corollary: “Reading down the restrictions on outdoor protests to conform with the limits on religious gatherings addresses the constitutional inconsistency while respecting legislative intent to reduce the spread of COVID-19 at this critical stage of the pandemic.”

[12] I now turn to the specific remedy for this case. I will explore the options of reading in and reading down in turn. Recall the provisions at issue. Schedule 4, s.1(1)(d) of the Shutdown Order prohibited “a gathering, whether indoors or outdoors, for the purposes of a wedding, a funeral or a religious service, rite or ceremony of more than 10 people” during the relevant timeframe at issue in the underlying appeal. Section 1(1)(c) is more general, and prohibits attendance at “an organized public event or social gathering that is held outdoors, including a social gathering associated with a gathering described in clause (d).”

[13] Framed as a reading-in, the remedy would be to read into s. 1(1)(d) a parallel limited exemption for outdoor peaceful assemblies. Like s. 1(1)(d) of the Shutdown Order, the provision to be read in would align to limit such outdoor “organized public event[s] or social gathering[s]” except for the purpose of peaceful assembly and protest of up to 10 people. This read-in exemption would also extend to the Stay-at-Home Order provisions.

[14] In this case, the impugned regulations wrongly exclude an accommodation for those who wish to gather for the purpose of peaceful assembly and protest in accordance with s. 2(c) of the Charter. On Ontario’s concession, the addition of the excluded accommodation would be consistent with the regulation’s objective. It would not involve a substantial change in the cost or nature of the legislative scheme, and it would avoid striking down the general prohibition, which would be the inferior remedy.

[15] Alternatively, framed as a reading-down, the remedy would be to read down the prohibition on public gatherings so that it would not apply to gatherings for the purpose of peaceful assembly and protest. Ontario proposes an order “[r]eading down the restrictions on outdoor protests to conform with the limits on religious gatherings.” A more precise articulation would be this: the prohibition does not apply to gatherings for the purpose of peaceful assembly and protest of up to 10 people.

[16] In this case, the impugned regulations wrongly include all gatherings for the purpose of peaceful assembly under the general prohibition, being those for the purpose of peaceful assembly and protest. Reading down would limit the reach of the provisions to constitutionally valid applications.

[17] Both approaches define precisely both the constitutionally sound part of the scheme, s.1(1)(d), and the unsound part, being the omission of a similar exemption for peaceful protests.

[18] While this is not, on the facts, a case in which much turns on the differences between reading in and reading down, respect for the legislature leads me to prefer the remedy of reading down to the remedy of reading in.

[19] It is not my task to consider whether this result would assist Mr. Hillier in any remaining prosecutions, and I refrain from commenting further.

Disposition

[20] Although the regulations have since been revoked, I conclude that the remedy of reading down, so that the prohibition does not apply to gatherings for the purpose of peaceful assembly and protest of up to 10 people, would be the most appropriate way to render the impugned regulations constitutional.

Released: May 29, 2025

“P.D.L.”
“P. Lauwers J.A.”
“I agree. B. Zarnett J.A.”
“I agree. R. Pomerance J.A.”

References

1. Schachter v. Canada, [1992] 2 S.C.R. 679
2. Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629
3. G, at para. 112.
4. At para. 112, citing Schachter, at para. 37; Vriend v. Alberta, [1998] 1 S.C.R. 493, at paras. 149-50.
5. G, at para. 112.
6. G, at para. 114, citing Schachter, at para. 30; Attorney-General for Alberta v. Attorney-General for Canada, [1947] A.C. 503 (P.C.), at p. 518.
7. G, at para. 114.
8. R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 69.
9. Schachter, at para. 29; G, at para. 113.
10. Peter W. Hogg and Wade K. Wright, Constitutional Law of Canada, 5th ed., vol. 2 (Toronto: Thomson Reuters Canada Ltd., 2021) (loose-leaf release 1, 7/2024), at § 40:7.
11. G, at para. 113.
12. Schachter, at para. 32; G, at para. 113.
13. Schachter, at para. 32.
14. Schachter, at para. 85.
15. Hogg, at § 40:6.
16. Hogg, at § 40:7, notes that reading down is another doctrine of judicial restraint; “it minimizes the impact of a successful Charter attack on a law”. See also G, at para. 112.