You, a resident of Ontario, went to bed on Tuesday night in a country where the Charter of Rights and Freedoms affords no protections to bike lanes. You woke up on Thursday morning and… precisely nothing has changed, despite what an already-long line of fulminating op-eds, social media posts, and talk radio rants have asserted. If you’re a cyclist in Ontario anywhere other than Toronto, this week’s court decision by Justice Paul Schabas provides precisely zero grounds for you to browbeat your municipality into installing or maintaining bike lanes. Even in Toronto, Schabas’s decision leaves intact Doug Ford’s powers to micromanage precisely which streets new bike lanes can be installed on.
There is no Charter right to bike lanes, before or after Schabas’s decision. The only thing bike lanes and the Charter have in common is that they both protect cyclists, a fact which drives Ford, his cabinet, and the PC majority in the legislature to distraction. This week’s decision was about something both much simpler and far more important: the threshold a government needs to meet before it can cause harm to its citizens, and how many falsehoods it can tell in the process.
If you’re the kind of person whose vision starts to go red and blurry at the mere sight of a cyclist on the road, the short version of what follows is: Doug Ford’s government had an incredibly low bar to clear in this case, and if you’re going to rail against activist judges your time would be better spent demanding better from the people you vote for.
The facts before Schabas were pretty clear. Last year, the government introduced (and the legislature passed) Bill 212, the Reducing Gridlock, Saving You Time Act. At committee, the PC majority hastily amended the bill to force the removal of several bike lanes in Toronto, most notably along Bloor Street and University Avenue. Toronto, like all Ontario municipalities, is bound by provincial law and policies that encourage increasing density in new housing development, something that’s only possible with symmetrical policies to reduce single-passenger car use. Bloor and University (and Yonge Street, also targeted by the government) have all had subways underneath their asphalt for longer than I’ve been alive. One of the most fundamental criticisms of Bill 212 from municipalities was that it made Ontario’s planning policies even more incoherent.
(Bill 212 also gave the minister of transportation the power to review and approve, or not, any new bike lanes anywhere in Ontario. As mentioned above, that power wasn’t challenged in the court case and is unaffected by Schabas’s decision.)
The government justified Bill 212 by saying that removing bike lanes would improve traffic flow in Toronto. There’s just one problem: it had no evidence to support this assertion, and was sitting on substantial evidence to contradict it. As Schabas writes: “To the contrary, records produced by the government in this litigation show that the internal advice prior to passing Bill 212 was that protected bike lanes can have a positive impact on congestion and that removing them would do little, if anything, to alleviate gridlock, and may worsen congestion.” When the government went out to a private consultant for a second opinion, the engineering firm CIMA concluded that while “removing the bike lanes and replacing them with traffic lanes may increase the vehicle capacity along the immediate length of the roadway, the actual alleviation of congestion may be negligible or short-lived due to other confounding factors or induced demand.”
Schabas similarly notes that the government’s public statements deliberately low-balled estimates of how many cyclists use the bike lanes in question, even though it knew the real numbers were substantially higher. After the government asserted that only 1.2 per cent of commuters travel by bike while over 70 per cent drive in Toronto, Schabas found, “the Ministry of Transportation had quite different information at the time which it released on December 18, 2024. The Ministry’s Transportation Tomorrow Survey found that in 2022, 4.4 per cent of all trips within the City were taken by bicycle or other micromobility,” rising to 9.3 per cent for trips downtown and 15 per cent for people specifically travelling from the city’s west end along Bloor. Meanwhile, only 28.4 per cent of commuters drive cars downtown for their commute.
Finally, and most consequentially for this case, the government’s own experts presented at trial were unable to rebut the basic premise that removing these protected bike lanes will meaningfully increase the risk of serious harm to cyclists. Because of course it will.
That harm to Toronto’s cyclists is the Charter question here. Schabas accepted that the province has an interest in easing congestion in Ontario’s largest city, because of course it does. The justice also accepted that the government is allowed to cause people harm, because of course it is. The government needs the kinds of powers that can harm people, whether we’re talking about police, prisons, military, or something mundane like road design. The only thing the Charter requires is that the government’s stated means bear a reasonable connection to the end — the government needed to demonstrate that the real chance of harm to cyclists was going to result in improved traffic flow. It failed to do so.
“Put another way, governments may take steps that may put people in harm’s way by removing something, but they can only do so if the actions are in furtherance of legitimate policy decisions as opposed to being arbitrary, overly broad, or grossly disproportionate to the government objectives,” Schabas writes.
It’s important to say that the government didn’t need to meet the threshold of criminal law here. This wasn’t a case where Ontario needed to show beyond a reasonable doubt that it was right and cycling advocates were wrong. In practice, all the government needed was to create sufficient ambiguity about the facts in question for the judge to step back and say it wasn’t his job to dictate traffic policy. Courts are concerned about facts, and we very much want them to keep being so.
The final question about this case is whether this sets a worrisome precedent. It might not, for the simple reason that the Court of Appeal might overturn it (courts are funny places, and it’s foolish to predict outcomes in advance). It’s an open question what ground the court will find to overturn, however, since Schabas has pretty extensively documented the mendacity of the government’s arguments and the weakness of its evidence.
Nevertheless, as someone who largely accepts the arguments that Ontario needs to find ways to build things faster and cheaper, layering Charter jurisprudence on top of the already cumbersome process of approving infrastructure isn’t encouraging. The good news here is that the facts in this case are so uniquely one-sided, and the government’s conduct has been so dishonest, that the risks of this having any kind of longer-term consequences are small. No Ontario municipality currently considering removing a bike lane as part of any kind of larger transportation planning exercise has much to fear from this week’s decision, provided they can meet the extremely low bar of hiring a planning consultant to actually formulate something closer to an evidence-based justification. The province couldn’t be bothered, so it lost in court; anyone who manages to do just a little bit better should be fine.
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