Last month, Superior Court Justice Paul Schabas ruled that the Ontario government’s plan to remove bike lanes along three major streets in Toronto is unconstitutional.Laura Proctor/The Canadian Press
How have we got to the stage in Canada where a federally appointed judge has declared, in effect, a constitutional right to protected bike lanes?
Oh, we can answer that, to a point. A series of Supreme Court rulings, beginning with one in 1988 striking down the criminal law on abortion, established the constitutional principle that government has no right to kill the vulnerable through its policy choices.
But when that principle is used to deny government the authority to close down certain bike lanes in downtown Toronto, as Ontario Superior Court Justice Paul Schabas did late last month, the legal thread from the abortion ruling to this ruling snaps, and the mind reels.
What if a province wishes to close certain emergency wards, or entire hospitals, as it reshapes the health-care system? Might some people not be put at serious risk? What about raising highway speed limits? Unconstitutional? Will the federal carbon tax now be brought back before climate change can kill more people? What about the expansion of alcohol sales to convenience stores? Medicare, and its rationing of care, struck down? The implications for public policy of Justice Schabas’s bicycle-lanes decision seem limitless.
Beginning in 2016, the City of Toronto created bike lanes separated by curbs from drivers’ lanes on the key downtown streets of Yonge, Bloor and University Avenue. Last year, Ontario Premier Doug Ford introduced a law to remove these bike lanes and restore lost lanes of car traffic. Cyclists challenged this law as a violation of Section 7 of the Charter of Rights and Freedoms, asserting that the change would result in the deaths of bicycle riders. Section 7 says, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
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To simplify: Government is allowed to put limits on your rights to be free and safe. But only if does so in a just way.
Consider the Supreme Court ruling striking down the criminal law on abortion. That law required women seeking a legal abortion to obtain permission from a hospital committee, an unwieldy procedure at odds with the law’s stated purpose, of protecting women’s health.
Other cases since then have followed a similar principle. In 2011, the Supreme Court said the federal government could not shut down a nurse-supervised clinic for illegal drug users in Vancouver, because doing so would kill sick people. In 2013, the Supreme Court struck down the criminal law on prostitution, saying it relegated sex workers to the back streets where they were being murdered.
Ask yourself which one of these subjects is not like the others: women seeking an abortion; drug users obtaining life-saving help; sex workers trying to stay alive – or bike riders looking for a protected lane?
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The first three relate, broadly, to the administration of justice, which other court cases have established include such things as the child-welfare or immigration systems – also systems very much unlike bike lanes.
Another difference is that Section 7 – to quote the Supreme Court – is about the basic values that undergird the Charter. Justice Schabas called the removal of the bike lanes “arbitrary,” because traffic experts said it would not reduce congestion. When the government argued in court that “four lanes are better than two,” the experts countered that four lanes would merely increase demand.
But is that really arbitrary? Clearly, Mr. Ford’s purpose was to give car drivers the priority on certain main arteries. That traffic congestion is improved by deterring cars and encouraging cycling doesn’t contradict the Ontario government’s point that these roads should be for car drivers.
Justice Schabas also called the law “grossly disproportionate,” meaning that what he deemed the government’s end doesn’t justify its means, which will cause serious injury and death to cyclists. Yet the Supreme Court has said only extreme cases that would “shock the conscience” of Canadians are to be deemed grossly disproportionate. Does it shock the conscience to give some big downtown streets over to cars?
Governments may be right or wrong in their policy choices. (And as we’ve previously argued, we believe Mr. Ford was wrong to have meddled in city business.) But that’s what elections are for. Government is not run by “experts” or by courts, but by leaders accountable to the public. The problem here is a judge who refused to stay in his lane.