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Charter - s.2(c) Freedom of Peaceful Assembly. 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:[5] Section 2(c) offers protection that is related to, but fundamentally distinct from, its companion subsections. The right of peaceful assembly, including political protest, is (in concert with other s. 2 rights) integral to a functioning democracy. The effect of the ban in this case was to stifle assembly aimed at expressing collective opposition to the ban itself.
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B. The Issue
[10] There is one issue in this appeal: is the absence of an exception to the COVID-19 gathering limits to accommodate the fundamental freedom of peaceful assembly protected by s. 2(c) of the Charter demonstrably justified under s. 1?
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[22] To reiterate the issue on appeal, is the absence of an exception to the gathering limits to accommodate the fundamental freedom of peaceful assembly protected by s. 2(c) of the Charter demonstrably justified under s. 1? The analysis proceeds in two parts, the first addressing s. 2(c) and the second addressing s. 1.
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(2) The Interpretation and Application of s. 2(c) of the Charter
[25] I set out the governing principles for the interpretation of s. 2(c) of the Charter, which protects the fundamental freedom of peaceful assembly, and then consider the application of those principles to the gathering limits.
(a) Introduction
[26] The task of interpretation requires the court to consider the text of the Charter, the context within which s. 2(c) is found and operates, and its purpose.[12]
[27] Section 2(c) takes its place in a list of fundamental freedoms in s. 2 of the Charter, which provides:2. Everyone has the following fundamental freedoms:
a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
c) freedom of peaceful assembly; and
d) freedom of association. [28] The text of s. 2(c) should be interpreted in context with its inclusion among all of the fundamental freedoms listed in s. 2. Each of the fundamental freedoms are distinct and must be given independent meaning. However, as this court noted in Toronto (City) v. Ontario (Attorney General): “rights protections often overlap in protecting a single activity, because persons, even in carrying out a single act, can simultaneously participate in multiple human goods.”[13] In other words, the fundamental freedoms listed in s. 2 are not mutually exclusive. For example, one’s right to freedom of religion (s. 2(a)) includes one’s right to worship collectively in association with others (s. 2(d)). The case-specific context determines which freedom, or freedoms, are engaged and the weight or emphasis each might attract. Given the overlap among the fundamental freedoms listed under s. 2, it is likely, if not common, that a given fact situation will engage more than one. As will be discussed in more detail below, this is especially so with respect to freedom of peaceful assembly under s. 2(c).
[29] Where more than one subsection in s. 2 is invoked, it may well be that only one constitutional analysis is required. The question of whether a particular subsection merits an independent analysis will invariably depend upon the factual and legal matrix of the case before the court.[14] For example, in Trinity Bible Chapel, the claims under the various subsections were reasonably subsumed by the s. 2(a) analysis addressing freedom of religion. Because the factual and legal bases for the claims were identical, there was no practical reason to duplicate the analysis under each subsection. Nor is it accurate to say that there were four separate violations, one for each subsection. There was one violation that straddled the various subsections. What marks this case and distinguishes it from Trinity Bible Chapel is that there is only one claim. It is advanced under s. 2(c) only, and the right of peaceful assembly is at the crux of the constitutional analysis.
[30] The exercise of freedom of peaceful assembly through these protests was free of objectionable acts that sometimes attend such protests. There is no claim that they were not peaceful or were disruptive or violent. There were no counter-protests. Nor did Mr. Hillier’s participation draw charges under s. 63(1)(a) of the Criminal Code, as causing “persons in the neighbourhood” to fear on reasonable grounds that the assembly “will disturb the peace tumultuously”.[15] Police action to disperse the protests was not necessary. In short, these were plain vanilla outdoor political protests.
(b) Section 2(c) Governing Principles
[31] Section 2(c) of the Charter is jurisprudentially underdeveloped. In Professor Jamie Cameron’s background paper entitled “Freedom of Peaceful Assembly and Section 2(c) of the Charter”, written for the Public Order Emergency Commission, also known as the Rouleau Commission, she notes: “Though it is one of the Charter’s fundamental freedoms, s.2(c)’s freedom of peaceful assembly received little or no attention in the first 40 years of Charter interpretation and jurisprudence.”[16] Her aim was to fill the jurisprudential “gap”.[17]
[32] Professor Cameron argues, and in my view, convincingly establishes, this explanatory thesis:Though freedom of expression and freedom of assembly are not the same, it has been assumed that questions about expressive activity in public space should be addressed under s.2(b). In that way, the Charter’s guarantee of expressive freedom evolved without aligning with s.2(c) and its concept of assembly. Meanwhile, an affinity between peaceful assembly and freedom of association was dampened by s.2(d)’s selective focus on labour relations issues.[18] [33] Professor Cameron regrets s. 2(c)’s lack of separate development: “Accepting that an assembly or gathering in public space may be engaged in expressive or associational activity, the point in setting the right of assembly apart from ss.2(b) and (d) ‘is the assembly itself’. Put another way, the assembly is, in its own right, ‘the constitutional event’.”[19]
[34] Section 2(c) has been insufficiently differentiated from other s. 2 freedoms and has been overshadowed, if not subsumed, under s. 2(d), freedom of association, and under s. 2(b), freedom of expression.[20] I find Professor Cameron’s contextual approach to be persuasively inclusive and legally correct:In principle, freedom of assembly works in concert with s.2’s other fundamental freedoms, forming part of an interrelated system that serves core democratic functions. As such, it depends for its protection on overlapping rights, such as freedom of expression and association. Assemblies invariably form in pursuit of a religious, expressive, or associational purposes, and will often be a “conduit” for the exercise of the Charter’s other fundamental freedoms.[21] [35] Under s. 2(c), “an assembly is necessarily collective in nature”, like an “association” contemplated by s. 2(d).[22] In Dunmore v. Ontario (Attorney General), Bastarache J. stated: “the purpose of s. 2(d) commands a single inquiry: has the state precluded activity because of its associational nature, thereby discouraging the collective pursuit of common goals?”[23] I accept Professor Cameron’s argument: “By analogy to s.2(d), the key issue under s.2(c) is whether the government discouraged the collective pursuit of a common purpose by restricting or prohibiting a public gathering or assembly.”[24] She explains that ss. 2(c) and 2(d) protect collective entitlements, and that “under s.2(c) the right attaches to the collective entity, or assembly itself, as well as to individuals who participate as members of the assembly.”[25]
[36] I pick out, adapt, and adopt the following propositions as correct statements of the law in building out the contours of s. 2(c):1. “[T]he act of assembling is the relevant constitutional event, and the value of it inheres in and attaches to the assembly, qua assembly.”[26] As the “collective enactment or embodiment of individual expressive activity,” a s. 2(c) peaceful assembly can advance the democratic goals of “self-government, truth seeking, and self realization”.[27] Moreover, the “capacity to empower unheard, marginalized voices is at the core of s.2(c)”.[28]
2. An assembly is a “form of collective, not individual, action,”[29] and “[t]he right of peaceful assembly is, by definition, a group activity incapable of individual performance”.[30]
3. “[A]n assembly is a concerted bodily enactment”, or “a plural form of performativity”. It need not accompany “verbalization” to be a form of expressive political action.[31]
4. An assembly includes a physical gathering of individuals in a physical space.[32] There are two corollaries applicable to physical assemblies. First, freedom of assembly “includes activities that are ‘integral’ to the assembly, such as mobilizing resources, planning, preparing, and publicizing a gathering, and travelling to and from the assembly.”[33] Second, “digital connectivity facilitates” but neither displaces nor replaces collective forms of expression; it “complements traditional means of participating in public assemblies.”[34]
5. A public assembly can “leverage a message of protest or dissent, forcing the community to pay attention and become involved in redressing grievances.”[35]
6. The core issue in determining whether the government limited s. 2(c) is assessed by analyzing whether “the government discouraged the collective pursuit of a common purpose by restricting or prohibiting a public gathering or assembly.”[36]
7. “[B]lanket bans that exclude or restrict an assembly because of its message or purpose are especially problematic.”[37] They are “an ‘excessive restriction’ and ‘presumptively disproportionate’ for that reason.[38] “In particular, assemblies with a political message should receive a ‘heightened level of accommodation and protection’.”[39] . 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 consider political protests in the context of Charter s.2(c) ['peaceful assembly'] and 2(b) ['expression']:(c) Public Protests
[37] To understand the scope of s. 2(c)’s protection, it is necessary to account for the goods it is meant to serve. As noted, although there has been comparatively little scholarship and even less jurisprudence on s. 2(c), freedom of expression scholarship can assist. In another paper for the Rouleau Commission, entitled “Freedom of Expression” Professor Richard Moon picks out the public goods that freedom of expression seeks to protect:It is said that freedom of expression must be protected because it contributes to the public’s recognition of truth or to the growth of public knowledge; or because it is necessary to the operation of a democratic form of government; or because it is important to individual self-realization or personal autonomy.[40] [38] In my view, these public goods also attach to other s. 2 fundamental freedoms, particularly peaceful assembly.
[39] Though freedom of expression and freedom of peaceful assembly are distinct rights, the human goods that animate the former are instructive in analyzing the latter. I agree with the proposition that “[c]onflating freedom of peaceful assembly with other freedoms like expression and association gives the erroneous impression that the former is a derivative of the latter (and that they are based on the same justifications).”[41] In other words, ss. 2(b) and (c) tend to converge because assemblies are necessarily expressive. But this is not to say that questions engaging s. 2(c) should engage only the s. 2(b) analysis. Peaceful assembly is listed as a separate, independent freedom.[42] Continuing to treat s. 2(c) as the forgotten sibling of the other fundamental freedoms unduly limits protection for people living in a constitutional democracy. Although the instances in which s. 2(c) does not overlap with other fundamental freedoms under s. 2 are rare, it is “nonetheless misguided to assume that the freedom exists solely to facilitate the exercise of other freedoms.”[43]
[40] Professor Moon describes protests “as action rather than speech – a physical display rather than a discursive engagement”.[44] Moreover, the primary objective of public assemblies is to “confront others or to gain attention by disrupting ordinary life, or the ordinary use of public spaces.”[45] Because such activity usually concentrates in public areas, “its message can (appear to) reach a general audience.”[46] Thus, a “demonstration is an act of solidarity, a coming together of similarly minded individuals, but also collective act of expression.”[47]
[41] Although there are now alternative forums, Professor Moon posits three reasons why public protests have a continued, if not enhanced, appeal. First, protests reflect “a desire to create a common space in which public engagement (politics) is possible,” and help overcome the fragmentation of public discourse.[48] Second, “a demonstration in public space bridges physical and emotional distance, by bringing individuals together, and giving them a sense of presence, and connection with others, that is lacking in mediated forms of communication.”[49] Third, protests “can make visible the extent and depth of support for a position.”[50]
(d) The Principles Applied
(d) The Principles Applied
[42] As a form of peaceful assembly, political protests are given constitutional protection. This is because s. 2(c)’s role in a constitutional democracy is to “validate the legitimacy and value of experiential, collective and public democracy” and political participation.[51] In this case, the ban on assemblies for political protest imposed by the gathering limits was absolute. Peaceful assemblies were not permitted even in the small numbers allowed for gatherings for religious and similar purposes. No opportunity was provided, to restate the goods this fundamental freedom protects, for dissenters to attract attention, in a visible act of solidarity, to their opposition to the law by disrupting ordinary life in the hope that the protest would lead to a change in public policy; this freedom is surely elemental in a democracy. The presence of alternative forums for protest, such as social media or virtual gatherings, was not sufficient to render the absolute prohibition on gatherings constitutionally compliant. . Brisco v. Ontario Civilian Police Commission
In Brisco v. Ontario Civilian Police Commission (Ont Divisional Ct, 2025) the Divisional Court dismissed a police officer's JR, here against "a decision of the Ontario Civilian Police Commission, which upheld a hearing officer’s finding that he engaged in misconduct for making a donation to what the hearing officer found to be illegal protests in Ottawa and Windsor" and related penalty.
Here the court briefly deals with the applicant's Charter s.2(c) 'freedom of association' argument:[2] In January and February 2022, vehicles from across Canada arrived in downtown Ottawa in a protest related to the COVID-19 pandemic that became known as the “Freedom Convoy”. In early February, the Prime Minister and Ottawa Chief of Police made statements that the protests were becoming illegal and that the police did not have enough resources to control them. By February 7, 2022, protestors were blockading the Canada-US border crossing at the Ambassador Bridge in Windsor.
[3] At the time of the Freedom Convoy, Mr. Brisco was on an unpaid leave of absence because of his refusal to comply with a mandatory COVID-19 vaccination policy.
[4] On February 8, 2022, after the blockade of the Ambassador Bridge, Mr. Brisco donated $50 to support the Freedom Convoy through a fundraising website. Mr. Brisco made the donation anonymously from his personal computer. A computer hacker obtained and publicized a list of donors to the website. The Ontario Provincial Police received the list and advised the WPS of Mr. Brisco’s donation.
[5] Mr. Brisco was then charged with one count of discreditable conduct under the Code of Conduct, Ontario Regulation 268/10 under the Police Services Act, R.S.O. 1990, c. P.15 (the Act).[1] After a six-day hearing, a hearing officer found Mr. Brisco guilty of discreditable conduct. Following a further hearing, the hearing officer imposed a penalty of forfeiture of 80 hours of remuneration.
[6] Mr. Brisco appealed to the Commission, which dismissed the appeal. The Commission accepted the hearing officer’s finding that the protests were “illegal” at the time Mr. Brisco made his donation and declined to interfere with the hearing officer’s decision to accept media and police reports about the protests into evidence. The Commission also declined to consider Mr. Brisco’s argument that the investigation and prosecution amounted to an abuse of process because the issue was not raised before the hearing officer.
[7] Finally, the Commission agreed that, even though the analysis under Doré v. Barreau du Quebec, 2012 SCC 12, [2012] 1 S.C.R. 395 was not squarely raised before the hearing officer, he ought to have been alive to the need to balance Charter[2] values. The Commission itself undertook the Doré balancing and concluded any limitation on Mr. Brisco’s s. 2(b) Charter right to freedom of expression was outweighed by the public interest in enforcing the Act’s objectives.
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[9] .... Finally, the Commission was not required to consider the Charter value of freedom of assembly.
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Did the Commission err in failing to recognize and consider the Charter value of freedom of peaceful assembly?
[29] There is no merit to Mr. Brisco’s submission that the Commission erred in recognizing and considering the s. 2(c) Charter value of freedom of peaceful assembly. Mr. Brisco did not raise s. 2(c) rights before either the hearing officer or before the Commission. Nonetheless, he relies on Commission scolaire to say the Commission had an obligation to recognize and consider s. 2(c) in the balancing exercise.
[30] Mr. Brisco does not submit his own s. 2(c) rights were engaged. Instead, he argues that the Commission was required to consider the s. 2(c) rights of the Freedom Convoy protest participants. An administrative decision-maker is not required to consider a Charter value that is not relevant for the purpose of its decision: Commission scolaire, at para. 66. Here, there was no record before the hearing officer or Commission about the protesters’ s. 2(c) rights. Mr. Brisco also does not explain how a finding of professional misconduct against him engages the s. 2(c) rights of non-party protesters. There was no requirement for the Commission to address this issue.
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