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Charter - Fundamental Freedoms (s.2). Hillier v. Ontario [where several s.2 freedom grounds advanced]
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 considered practice when different Charter s.2 'freedom' grounds were advanced at once:[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.
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