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Public Interest - Protest. 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. . Li v. Barber
In Li v. Barber (Ont CA, 2025) the Ontario Court of Appeal dismissed a class action appeal from an interlocutory pre-certification order that dismissed the defendant's CJA 137.1 SLAPP motion, here where plaintiff Ottawa neighbours sued for private and public nuisance for trucker's protest activities.
The court considered the harm-expression balancing [CJA 137.1(4)(b)], here in the context of public protest:[107] The appellants submit the motion judge erred in his analysis of the public interest hurdle contained in CJA s. 137.1(4)(b), which provides, in part, that:(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,
....
(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. [108] In Pointes Protection, the Supreme Court described the weighing exercise set out in s. 137.1(4)(b) as the “core” or “crux” of the s. 137.1 analysis, because it “is open-endedly concerned with what is at the heart of the legislation at issue and anti-SLAPP legislation generally: the weighing of the public interest in vindicating legitimate claims through the courts against the resulting potential for quelling expression that has already been determined under s. 137.1(3) to be related to a matter of public interest”: at paras. 33, 62, and 82.
[109] As the Supreme Court further observed at para. 81 in Pointes Protection:[T]he open-ended nature of s. 137.1(4)(b) provides courts with the ability to scrutinize what is really going on in the particular case before them: s. 137.1(4)(b) effectively allows motion judges to assess how allowing individuals or organizations to vindicate their rights through a lawsuit – a fundamental value in its own right in a democracy – affects, in turn, freedom of expression and its corresponding influence on public discourse and participation in a pluralistic democracy. ....
[115] I would go further to state that I agree with the motion judge’s conclusion that it is in the public interest for the questions of the competing interests raised by this proceeding to be determined by the courts.
[116] Section 137.1 applies to public interest expressive conduct in a large variety of circumstances, including political protest in public places such as occurred in the present case. Earlier in my judicial career I decided a case that raised similar issues about the interplay between political protest and the use of public spaces. In Batty v. Toronto (City), 2011 ONSC 6862, 108 O.R. (3d) 571, which was also known as the Occupy Toronto case, protesters had turned a large downtown public park into a tent-city political protest site. After the lapse of a month, the City of Toronto sought to evict them from the park. The protesters challenged the eviction notice in court.
[117] In Batty, I opened my reasons with the suggestion that the interplay between public political protest and its impact on the community in which the protest takes place raises two fundamental questions:How do we live together in a community? How do we share common space? [118] I ventured that guidance on how to answers those fundamental questions can be found in the Preamble to our Canadian Charter of Rights and Freedoms. I suggested the Preamble identified two principles of practical political philosophy that govern public political interactions amongst Canadians: first, as human beings, when dealing with our fellow citizens, whether we are part of the governed or part of those who govern, we all must display humility; and, second, we are not unconstrained free actors but must all live subject to some rules. While through our adoption of the Charter Canadians have placed great emphasis on the liberty of the individual – including the right to robust and, indeed, challenging political expression – at the same time the Charter reminds us that individual action must always be alive to its effect on other members of the community since limits can be placed on individual action as long as they are “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.[21]
[119] The weighing that lies at the core of s. 137.1, when applied to legal proceedings that involve political expression in public places, in a sense is a practical manifestation of the larger question about our political interaction as Canadians, namely how do we live together in a community? I think the motion judge’s reasons capture the essence of that question, as expressed in the weighing exercise that lies at the heart of the statutory provision. As well, I agree with him that is in the public interest for the questions regarding the competing interests raised in this proceeding be determined by the courts. Accordingly, I see no basis for appellate intervention in the weighing exercise he performed under s. 137.1(4)(b).
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