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Reopening Ontario (A Flexible Response to COVID-19) Act, 2020. Hillier v. Ontario
In Hillier v. Ontario (Ont CA, 2025) the Ontario Court of Appeal allowed a Charter s.2(c) ['Peaceful Assembly'] appeal, this from POA convictions under the Reopening Ontario (A Flexible Response to COVID-19) Act.
Here the court illustrates some history of this COVID statute:(1) The Ontario Government’s Response to the COVID-19 Pandemic
[11] In brief, the appellant challenges two regulations on appeal.[4] The first led to the “Shutdown Order” and the second to the “Stay-at-Home Order”. The impugned provisions of the Shutdown Order prohibited people from attending certain gatherings with express carveouts. However, there were no carveouts for peaceful assemblies. The Shutdown Order worked in tandem with the Stay-at-Home Order and included the same limited carveouts.[5]
[12] The carveouts permitted gatherings for weddings, funerals, and religious services subject to certain restrictions, such as a limit of ten people. The application judge noted, at para. 97, that the “ban was absolute as it related to activities engaged in by Mr. Hillier”. As the application judge and this court in Trinity Bible Chapel mentioned, Ontario was entitled to weigh the objective of reducing the risk of COVID-19 transmission with wider societal interests and to carve out exceptions for small religious gatherings and shopping. However, there is no evidence that the Ontario government gave any thought to permitting a parallel exception for outdoor peaceful assemblies, despite the Charter’s protection of the right to freedom of peaceful assembly as a fundamental freedom enumerated in s. 2(c).
[13] On April 3, 2021, in response to a surge of COVID-19 cases that threatened the collapse of the healthcare system, Ontario placed the province into a “Shutdown Zone” through an order under the ROA.[6] At the time, this prohibited outdoor gatherings of more than five people province-wide.
[14] On April 7, 2021, Ontario declared a state of emergency under s. 7.0.1(1) of the Emergency Management and Civil Protection Act,[7] and issued an emergency order requiring everyone to stay at home, except for certain kinds of gatherings, including, but not limited to, weddings, funerals, religious services, and permitting an individual living alone to gather with the members of another household.[8] The Stay-at-Home Order did not permit individuals to leave their homes to attend peaceful assemblies.
[15] Effective April 17, 2021, Ontario amended the Shutdown Order to prohibit all outdoor gatherings except for weddings, funerals, religious services, and for individuals living alone to gather outdoors with the members of another household. Again, the prohibition did not contain an exception for peaceful assemblies.
[16] On May 22, 2021, Ontario amended the Shutdown Order to increase the outdoor gathering limit from none to five people. Again, no exception was made explicitly for peaceful assemblies.
[17] The Stay-at-Home Order remained in force until its expiry on June 2, 2021. The Shutdown Order was extended until its expiry on March 16, 2022. For clarity, Mr. Hillier challenges both the Shutdown Order and the Stay-at-Home Order. Specifically, he challenges the Shutdown Order between April 17, 2021 and May 22, 2021, in which an absolute ban on outdoor assembly was in force, and the Stay-at-Home Order generally.[9] . Ontario (Attorney General) v. Trinity Bible Chapel
In Ontario (Attorney General) v. Trinity Bible Chapel (Ont CA, 2023) the Court of Appeal considered a church group's appeal against a dismissal of their Charter s.52 declaration application involving the COVID provisions of the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020.
The quotes below set out the court's view regarding assessing the COVID situation in 'hindsight':[1] It has become commonplace to observe that the COVID-19 pandemic represented an unprecedented challenge for governments. Individuals, families, and communities looked to governments to take urgent action to reduce the transmission of the virus, mitigate its threat, and manage its consequences. The question on this appeal is whether the government of Ontario went too far in the actions it took and unreasonably infringed on the constitutional rights of religious communities. The appellants are two churches and their members who were charged with contravening several of Ontario’s COVID-19 regulations imposing capacity restrictions on indoor and outdoor religious gatherings in late 2020 and early 2021. They each brought motions to set aside court orders made against them on the basis that the authorizing regulations infringed s. 2 of the Canadian Charter of Rights and Freedoms.
[2] Trinity Bible Chapel is a church located in Waterloo, Ontario, in the Waterloo Public Health Unit (“WA”). Jacob Reaume is the lead pastor, and the other named parties are church elders and associate pastors. While the church initially complied with pandemic regulations, it began disobeying public health restrictions on in-person gatherings in December 2020. Ontario obtained a restraining order under s. 9 of the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17 (“ROA”), directing compliance with applicable gathering limits. However, the church continued to defy regulations and faced various contempt proceedings and further fines.
[3] The Church of God (Restoration) is a non-denominational religious organization located in Aylmer, Ontario, in the Southwestern Public Health Unit (“SW”). Heinrich (Henry) Hildebrandt is the pastor, and the other named parties are church elders or former elders. While the church initially complied with pandemic regulations, in response to a January 2021 lockdown it began holding large-scale, in-person services of several hundred people, and was similarly subject to restraining orders under s. 9 of the ROA. As a result of continued non-compliance, the church has faced various contempt proceedings and fines.
[4] Different regulations were in force at different times and in different Public Health Units, based on a zone-by-zone approach across the province. The regulations at issue applied to organized public events, social gatherings, and gatherings for the purposes of conducting religious services, rites, or ceremonies. The appellants did not challenge those portions of the regulations that only imposed physical distancing requirements, but rather those imposing numerical or percentage capacity restrictions on indoor and outdoor religious gatherings, that were in force between December 2020 and July 2021.
[5] These regulations evolved over time and in response to particular public health and policy dynamics. During the relevant period, they all imposed restrictions on religious gatherings, with indoor limits ranging from 10 people to a percentage of room capacity (e.g., 15% or 30%), while the outdoor limits ranged from 10 people to 100 people, to no limit but with physical distancing.
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[56] In Beaudoin v. British Columbia (Attorney General), 2022 BCCA 427, the B.C. Court of Appeal considered the constitutionality of similar COVID-19 restrictions on religious gatherings, in that case in the form of orders issued by the Provincial Health Officer. Fitch J.A., writing for a unanimous panel, adopted and amplified the motion judge’s perspective on hindsight evidence in the following terms, at para. 268:I emphasize that hindsight has no place in this analysis: Trinity Bible Chapel at para. 6(2). Regard must be had to what was known about the potential for the virus to cause widespread death and disable the delivery of essential services, including health care services to British Columbians. The analysis must recognize that, when the orders were made, vaccines were not widely available. The prospect of the exponential growth of COVID-19 cases was very real. Failing to act in a timely and reasonable way to prevent transmission in settings identified as high-risk could lead to the imposition of more extreme measures at a future date to curb the spread of the virus. [57] While not binding on this court, this endorsement by a coordinate appellate court bolsters the conclusion that this approach was open to the motion judge. While the effects of the regulations on the appellants continue, the regulations themselves were regularly revisited and modified in response to changing circumstances, and ultimately repealed. Evaluating a now-repealed regulation based on what was reasonably known at the time it was enacted is different from reviewing ongoing legislation based on the state of knowledge at the time it is challenged in court.
[58] The appellants also argue that the motion judge failed to adhere to her own caution in her s. 1 proportionality analysis when she relied on Dr. McKeown’s evidence that Ontario’s public health measures, including the challenged regulations, had the effect of decreasing the spread of COVID-19, as follows:There is good reason to believe that the measures had their intended effect of reducing Covid-19 transmission rates, and attendant illness. At para. 59 of his affidavit, Dr. McKeown testified that:Many key public health indicators showed signs of significant improvement following the implementation of Ontario’s strictest public health measures. While there are many factors that contribute to the transmission of COVID-19, this data suggests that Ontario’s public health measures decreased the spread of COVID-19 across the province, reduced the overall strain on the healthcare system, and likely saved lives. [59] I do not accept that this statement reflects hindsight reasoning, in the sense of relying on evidence of impact that post-dates the challenged regulations. Rather, the motion judge accepted evidence from a participant in Ontario public health policy-making that not only were the measures taken by Ontario justified by the evolving scientific data at the time, but also by the evolving track record of impact. In other words, by the time Ontario enacted regulations to counter the risks posed by the second and third waves of COVID-19, it could rely on the beneficial impact of the measures taken to address the earlier waves.
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