Bill 212 Charter Challenge

On Wednesday, Cycle Toronto – along with fellow applicants Eva Stanger-Ross and Narada Kiondo – had their day in court to pursue a Charter challenge against the Ford government’s plans to remove bike lanes. The challenge targets Section 195.6 of the Highway Traffic Act (originally in Bill 212), which requires the removal of bike lanes on Bloor, Yonge, and University. The applicants are represented by Andrew Lewis of Paliaire Roland and Bronwyn Roe of the non-profit Ecojustice, while Greenpeace, For Our Kids Toronto, and the Canadian Public Health Association appeared as intervenors. Both the main and overflow courtrooms were full for the occasion while Justice Paul Schabas presided over the session which focused on Section 7.

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.

Cycle Toronto's "Rally for Justice" held the day before the April 16 Charter challenge

Mr. Lewis clarified at the beginning of the session that the Section 7 challenge doesn’t target the entirety of Bill 212 but rather only Section 195.6. In short, the applicant does not challenge the requirement to seek provincial approval for new bike lanes which remove traffic lanes and to conduct reviews of existing bike lanes. Through some clarification questions from Mr. Schabas, Mr. Lewis confirmed other bike lanes such as Queen’s Park Circle, Avenue Road, and Danforth – which Mr. Lewis rides daily – would not be affected.

Mr. Lewis conceded that there was not a charter right under Section 7 to bike lanes and that this was not a “positive rights” case. The Ontario government did argue that a successful ruling for the applicants would open the floodgates to the ruling covering stop signs, speed bumps, and other road safety measures. For clarity, a “positive right” refers to the freedom to desirable actions whereas a “negative right” is a freedom from harmful actions. Several applicants’ testimonies were cited while the province tried to discredit expert opinion from Drs. Linda Rothman and Shoshanna Saxe as “too partisan”. He argued that three studies were released before the introduction of Bill 212 which disputed the government’s claim about removing bike lanes reducing congestion, a fourth after the introduction of the bill, and a fifth from CIMA finalized earlier this year to prove the government knew about the harms and that they had no evidence to justify their actions.

Ms. Roe focused her arguments on the charter arguments themselves and answered a few questions from Justice Schabas. Ms. Roe stated Section 7 is engaged because the bike lane removals deprive cyclists of those rights through the increased risk of death and injury and that there was sufficient causal connection based on various research. She stated how individual decisions do not lead to causal connections, there needs to be respect for individual choice, and that choice is not unconstrained given economic factors such as affordability. As for caselaw, she referred to the Canadian Council for Refugees involving refugee rights, the Waterloo Region encampment evictions, and the Bedford case regarding prostitution.

In terms of whether the Section 7 deprivation – as asserted by Cycle Toronto – met the test of “not in accordance with the principles fundamental justice,” Ecojustice asserted that the deprivation was arbitrary given the Ontario government had no evidence to justify the bike lane removals. Ecojustice also argued that the harm to cyclists would be disproportionate to the government’s stated rationale to reduce traffic congestion.

The province’s lawyers – led by Josh Hunter – countered the bike lane removals were not a Section 7 infringement. The province argued it wasn’t obliged to provide bike lanes in the first place and that Bill 212 is more about “creating and then modifying” a risk reduction measure. The government lawyers cited certain studies such as by the Board of Trade and others claiming bike lane installations lead to increased commuter times. Justice Schabas repeatedly challenged the Crown’s claims given other factors could have been involved with increased commute times and even suggested the government believed its management of traffic is a charter free zone. Interestingly, the Crown cited similar arguments as Ms. Roe of Ecojustice, but interpreted them differently. The province added that in any case the deprivation – if it had occurred – occurred in a manner that accorded with principles of fundamental justice.

While I left shortly after 3:30 PM, a notable discussion came in the final minutes of the day-long hearing, during brief submissions about whether the province should be prohibited from removing bike lanes between the hearing and whenever the court’s decision is released, which – given the complexity of the matter – could take at least a few months. It was clear that the judge was not impressed with the province’s opposition to Cycle Toronto’s injunction application on March 11 only to see no action on bike lane removal between then and the April 16 hearing. The province could simply have agreed to the short delay instead of wasting a full day in the province’s overburdened court system. The province’s lawyer repeated earlier arguments that there is a presumption that government legislation is passed in the public interest. Justice Schabas reminded him on several occasions that there are “competing” public interests. The judge said his decision on the interim injunction lasting until his decision is released would be made public in a matter of days.

Several media outlets such as the Toronto Star, Toronto Today, and CBC previously reported on that court challenge.

Before Wednesday’s challenge, Cycle Toronto hosted a rally on Tuesday which about 100 people attended and saw several people speak. Jun N reported on the matter here.

Last, but not least, I should call out the Ford government’s Bill 212 had opened a big can of worms! Not only has the Trump administration targeted bike lanes south of the border, but now Alberta’s transportation minister has openly called for the cancellation of a bike lane project in Edmonton! It all goes to show we must show solidarity with cycling communities all over with this latest round of bikelash.

Special thanks to Albert Koehl – a former Ecojustice lawyer – for providing feedback on a draft of this post.