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Transportation - Bicycles. Cycle Toronto v. Ontario (Attorney General)
In Cycle Toronto v. Ontario (Attorney General) (Ont CA, 2026) the Ontario Court of Appeal allowed a Crown appeal, this brought against the granting of a JR which found that requiring "the removal of bicycle lanes from three downtown Toronto streets" under HTA s.195.6 ['Existing lanes in the City of Toronto, direction to restore'] and related regulations breached Charter s.7 ['life, liberty and security of the person'].
The court summarizes this intensively-political Charter s.7 case, here involving the issue of Toronto bicycle lanes:[1] The Ontario legislature exercised its law-making authority over highway traffic in the province to require the removal of bicycle lanes from three downtown Toronto streets. This is the sort of decision legislatures make routinely without attracting any concerns about the constitutionality of their actions.
[2] The application judge saw things differently. He concluded that the removal of the bicycle lanes constituted a serious violation of the most basic and fundamental rights in the Canadian Charter of Rights and Freedoms: it deprived bicyclists not only of security of the person but also of the right to life itself, and it did so in a manner that violated the principles of fundamental justice. He found, in particular, that the purpose of removing the bicycle lanes – reducing traffic congestion – was not supported by the government’s internal advice or expert evidence tendered in the application and would not be achieved by the legislation. The application judge went on to conclude that this was a violation of s. 7 of the Charter that could not be saved by s. 1.
[3] The application judge’s decision presents as a straightforward application of orthodox s. 7 principles. 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.
[4] Something has gone wrong.
[5] The application judge erred in law in interpreting and applying s. 7. But his decision is wrong in a more profound sense, for it subverts a fundamental principle of our democratic constitutional order: a legislature cannot bind its successors. 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 lawmaking in our constitutional order. Of course, all laws are subject to the Charter, but this does not preclude the amendment or repeal of legislation the legislature was under no constitutional obligation to have passed in the first place. Amendment or repeal of legislation may breach the Charter only if the breach can be established independent of the prior state of the law.
[6] The Charter does not require the legislature to establish bicycle lanes. Thus, the Ontario legislature is as free to establish bicycle lanes as it is to remove them or authorize their removal. 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. The government is not constitutionally obligated to make policy decisions that accord with policy advice it receives from its advisors, nor is the legislature obligated to legislate in accordance with that advice – let alone the advice of academic experts.
[7] The bottom line is this: there is no constitutional obligation to regulate the use of roads in any particular manner – no constitutional obligation to build bicycle lanes or to retain any that have been built. The legislature is free to legislate to remove a bicycle lane from a road – indeed, it may remove a road entirely – without implicating the Charter, and in particular, without implicating anyone’s rights under s. 7 of the Charter.
[8] The appeal must be allowed.
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