People bike along Bloor Street near Palmerston Avenue in Toronto in May. Last week, Ontario’s top court overturned a ruling that blocked the province’s bid to remove bike lanes on three major Toronto streets.Laura Proctor/The Globe and Mail
There is not, as it turns out, a constitutional right to bicycle lanes in Canada. Somewhat shockingly, the Court of Appeal of Ontario overturned, unanimously, a July, 2025, ruling that barred the Ontario government from removing bike lanes in downtown Toronto.
The appeal court ruling itself was not so surprising. It was painfully obvious that Ontario Superior Court Justice Paul Schabas had overstepped his bounds (or strayed outside his lane as we put it at the time).
A decade ago, the City of Toronto built bike lanes separated from roadways on several downtown streets. In 2024, the Ontario government passed a law to dismantle bike lanes on three busy streets (Yonge and Bloor streets, and University Avenue) to create more space for vehicle traffic. A court challenge argued the province’s law would result in deaths of bicyclists.
Justice Schabas agreed, ruling that the Ontario government had violated bicyclists’ rights to life, liberty and security of the person under section 7 of the Charter of Rights and Freedoms, and barring it from the dismantling of bike lanes.
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What was (pleasantly) shocking was the vigour with which the three justices on the appeal court case brushed back the original decision. Such admonitions are not uncommon, but they are typically exercises in understatement.
Not so this ruling. Justice Grant Huscroft starts by writing that the original decision “presents as a straightforward application” of section 7. They continue: “But the application of those principles, divorced from a broader understanding of the constitution of which they are a part, has led to a surprising outcome: the conclusion that routine legislation regulating road usage is unconstitutional.
Something has gone wrong.”
What follows is a refreshing discussion of the limits of judicial power and a reminder of the deference that courts owe to legislatures – to democracy.
Justice Schabas erred not just in applying the law, but in a more “profound sense” by subverting the fundamental principle that a legislature “cannot bind its successors,” the appeal court ruling says. “Legislatures in the Westminster tradition are free to undo legislation by amending or repealing it as they see fit. That is the nature of democratic law-making in our constitutional order.”
That is a critical point: legislatures can undo things that have been previously done. Imagine if that were not the case. Any new government initiative would immediately become an entrenched, immovable obligation.
But the ruling does not stop there. It continues on to make a rousing defence of the role of democratic politics, and the balancing act between judicial independence and legislative powers. The matter of bike lanes is a political, not constitutional, matter, the court writes. “The Charter has nothing to say about whether bicycle lanes are a good or a bad idea – wise or unwise policy. These judgments are no business of the courts.” (This space concurs. But, politically speaking, we still disagree with the Ontario government’s policy.)
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The ruling also serves as an admonishment to any judge wanting to substitute their own policy preferences for a government’s. “The temptation to do so may be great; judges may suppose that they have much to offer to public policy debate. But the temptation must be resisted. It is not just that courts have no expertise in policy making – no expertise in making the sorts of polycentric decisions that legislatures make routinely. It is illegitimate [emphasis added by the court] for courts to involve themselves in matters of legislative policy. Policy is for politics.”
Those are strong, but necessary, words. The point should be obvious to any jurist, but it demonstrably is not. The bike lane case is testament to that, as is an earlier ruling (also reversed on appeal) on the Ontario government’s decision to reduce the size of Toronto’s city council.
And then there is this rejoinder. “It is important to remember that judicial independence is a two-way street: the government and legislature must obviously respect the independence of the courts, but courts must respect the roles and responsibilities of the other branches of government.”
One could scarcely hope for a more lucid description of the proper role of courts, or of a more elegant rebuke of judicial activism that brushes aside the democratic will of Canadians expressed through their elected legislatures. Something has gone right.