A car passes a cyclist on a major road in Toronto in October, 2025.Chris Young/The Canadian Press
When an Ontario judge last year ruled a provincial law ordering the removal of bicycle lanes from three Toronto streets was a violation of the Charter of Rights, conservatives threw a tantrum on a scale rare even for them. A constitutional right to bike lanes? Surely this was proof that the courts in this country had gone crazy. Only the notwithstanding clause could save us now.
But now the court’s ruling has been overturned by the Ontario Court of Appeal, and conservatives have seized on it as … suggestive that sweeping generalizations about the judiciary should be avoided? Evidence that governments have other options besides the notwithstanding clause? No, just more proof that they had been right all along. After all, a judge said so!
There’s just one problem with this. The lower court ruling never said what conservatives, including the conservative judge who wrote the appeal court decision, said it did. In fact, Justice Paul Schabas went out of his way to stress that his ruling was not based on a “right to bike lanes.”
The applicants in the case were not asserting any such thing, he noted. “There is no assertion that the government has a positive obligation to provide something. There is no demand for new bike lanes.”
Indeed, the government was free to order the destruction of existing bike lanes, even knowing this would put the safety of cyclists using those lanes at risk – that it would kill some, in fact – provided it did not violate the Charter in so doing.
Editorial: An appealing case for judicial restraint
Ripping out the bike lanes was not a violation in itself. But to do so, as the government proposed, not only in the face of evidence that it would deprive cyclists of the right to “life, liberty and security of the person” guaranteed by the Charter’s Section 7, but in the absence of any evidence that it would even achieve its stated goal – reducing congestion – was at odds with the requirement of proportionality between means and ends that is at the heart of virtually all Charter jurisprudence. Indeed, the judge ruled, it was “grossly disproportionate,” and as such a violation of the principle of “fundamental justice.”
Now, it is possible to poke holes in the judge’s reasoning. But the author of the appeal court ruling, a Stephen Harper appointee, spends rather less time doing so and rather more on a long lecture on the perils of judicial activism in general, full of ringing phrases just begging to be quoted.
“Judges may suppose that they have much to offer to public policy debate,” Justice Grant Huscroft writes. “But the temptation must be resisted. It is not just that courts have no expertise in policy making … It is illegitimate for courts to involve themselves in matters of legislative policy. Policy is for politics.”
No disagreement there. But what about the lower court judge’s actual arguments, as opposed to the phantom ones it pleased the appeal court to rebut?
Against Justice Schabas’s protestation that he was not creating any positive right, Justice Huscroft replies, in effect, oh yes he is. “If the Charter prevents the government from removing the bike lanes,” he writes, “there must logically have been a constitutional right to the protection supplied by those lanes in the first place.”
Indeed, he goes further: “So long as the earlier legislation was not constitutionally required, repealing or undoing it is necessarily Charter-compliant.” [Emphasis added].
Is it? So long as you’re undoing a law that was “not constitutionally required,” it doesn’t matter how you go about it? Anything goes? So if the new law replaced bicycle lanes with, say, prayer circles, no Charter issues could possibly arise?
Justice Huscroft huffs that cyclists don’t have to use the roads that put them at risk. That’s not the point. The point is that in going about a lawful activity, people should not have their lives needlessly imperilled by the government. I emphasize: needlessly.
No one is saying “bicycle lanes exist in law now, therefore they must always exist.” The law in question did not merely repeal a municipal power, or withdraw a benefit. It ordered specific alterations to specific streets. That is a new act of government, separate and explicit, and as such subject to Charter scrutiny. How the bike lanes got there – whether by a previous law, a benevolent private donor, or act of God – is irrelevant. All that matters in law is that they are the status quo, which the government proposes to change.
To say that any such action must conform with the Charter is not to imply, as Justice Huscroft claims, that a legislature may bind future legislatures. It is to say that both are bound by the Constitution. As they should be.