The Ford government was advised by multiple expert sources that their bike lane measure would lead to more deaths and do nothing whatever to reduce traffic congestion, evidence at trial showed.Galit Rodan/The Globe and Mail
When an Ontario court found, two weeks ago, that Bill 212, provincial legislation ordering the removal of bicycle lanes from three major streets in Toronto, was a violation of cyclists’ Charter right to “life, liberty and security of the person,” conservatives were apoplectic.
It was judicial activism run amok, they agreed. Canada’s ever-inventive courts had discovered a “right to bicycle lanes.” What next: a right to volleyball courts? Time to invoke the notwithstanding clause, said some.
Well, that was then. When, one week ago, the Conservative government of Nova Scotia, with the province’s forests tinder-dry and fearing a repeat of the devastating wildfires of two years ago, issued a ban on hiking and camping in forested areas, conservatives were again apoplectic.
It was nanny-statism run amok, they agreed. What next: a ban on breathing? And so, without missing a beat, some appealed to the courts to protect their sacred and inalienable right to walk in the woods, citing the same section of the Charter.
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That’s different, conservatives respond. And indeed, the two cases raise different issues. But if one had to choose which was the more arbitrary government act – which involved the greater violation of rights, with the least justification – I’d argue banning bicycle lanes when the streets are clogged with cars beats banning woodland hikes during a forest-fire emergency.
The issue at stake in the bicycle lanes case is disarmingly simple: does the government have the right to kill you? It is not hyperbole but demonstrable, probabilistic fact that banning bike lanes will sentence a certain number of randomly selected Torontonians to death, and cause serious injuries to still more.
The answer, of course, is yes: in that probabilistic sense, the government does have the right to kill you. Everything has risks, and every government act can potentially increase those risks. We could eliminate all risk from our lives, but our every choice, public or private, demonstrates we don’t want to. It wouldn’t be worth the cost, monetary or otherwise.
That’s also reflected in our Constitution. Section 7 of the Charter does not assert an absolute right to “life, liberty or security of the person” but the right not to be deprived thereof “except in accordance with the principles of fundamental justice.”
Which was the real issue at stake in the bike lanes case. The court’s finding that the legislation threatens the life and security of Toronto cyclists is not controversial as a matter of fact, nor is it novel as a matter of constitutional principle. Conservatives cheered, for instance, when the Supreme Court found, in Chaoulli v. Quebec, that the province’s ban on private medical insurance, so far as it led to patients suffering and dying on waiting lists, was a prima facie Section 7 violation.
In the current case, as in Chaoulli, the issue isn’t whether governments can violate Section 7, but whether they have some defensible basis for doing so – enough either to slip in under the “fundamental justice” exception or to be saved as a “reasonable limit” on rights under the Charter’s famous Section 1.
It takes some doing to fail both tests. And yet the Ford government managed it. Evidence at trial showed the government was advised by multiple expert sources, not only that the measure would lead to more deaths, but that it would do nothing whatever to reduce traffic congestion, the stated rationale.
Yet it did it anyway. All costs and no benefits plainly makes a bill “arbitrary” and “grossly disproportionate,” the usual tests of whether fundamental justice is in play, and just as plainly shows the bill failed Section 1 tests of reasonableness.
Nothing in the decision obliges the government to build new bicycle lanes. As such it involves no “positive rights,” which conservatives are right to oppose. It simply requires that before a government takes the extraordinary step of ordering the removal of lanes that have already been built – an action guaranteed to cost some lives and put many more in peril – it ought at least to have some basis in evidence or logic for doing so.
That’s arguable, but it’s not crazy. To be sure, ordinarily we leave the balancing of risks and returns to governments to figure out. The exception in law is where rights are involved. And of these the right to life is surely the most fundamental.
Again, let’s compare the Nova Scotia case. I don’t get to take a stroll in the woods for a couple of months, at a time of severe fire risk, versus I am put permanently at risk of getting killed, to save car drivers a couple of minutes off their route – which it won’t even do!
These are the sorts of distinctions conservatives used to be able to make without difficulty. What happened?