It’s disconcerting how often something that feels just a little too on the nose is nevertheless a real thing that happens in the world. So it was Wednesday morning, when the advocacy group Cycle Toronto announced a legal challenge to the Ford government’s Bill 212, the Reducing Gridlock, Saving You Time Act, which gives the government the power to remove bike lanes from the City of Toronto and obstruct or prohibit the installation of bike lanes elsewhere in Ontario. Cycle Toronto’s executive director was absent from the Queen’s Park media studio, however: he'd been hospitalized on Monday after being doored while cycling in a paint-only, unprotected bike lane.
“Bill 212 puts lives at risk,” Michael Longfield said in an emailed statement. “It is not about tackling congestion, working with municipalities for data-driven solutions, or giving people more transportation options. It is unprecedented jurisdictional overreach undermining local democracy that will cost taxpayers millions of dollars and jeopardize the safety of cyclists.”
Cycle Toronto and two private individuals are challenging the validity of Bill 212 under Canada’s Charter of Rights and Freedoms and urging the courts to eventually strike the bill down. In the meantime, they’re asking for an injunction forbidding the Ford government from implementing its plans to remove bike lanes in Toronto.
The initial legal arguments are laid out in Cycle Toronto’s notice of application. Broadly, the argument is that the lane removal will put cyclists at greater risk of being injured or killed and that the government hasn’t demonstrated that the burden of those risks is commensurate with the desired public policy (relieving congestion). The fact that Bill 212 included a prohibition on suing either the government or private contractors for the removal of the bike lanes is also cited as evidence the government knows that cyclists will be injured or killed.
Section 7 of the Charter guarantees “life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” If the bike lanes on Bloor, Yonge, and University didn’t already exist, the Charter couldn’t compel either the city or the province to build them. Further, nobody is arguing that the legislature can’t give the minister of transportation the power to approve or deny future bike lanes. The issue here is the decision to remove bike lanes that already exist — and whether it was made in a way that preserves constitutional rights.
“These are bike lane the city has, after years of study and review, put in place for the specific reason that they increase safety for all road users and, in particular, people riding bikes,” says Bronwyn Roe, a lawyer with the group Ecojustice. “By the province overriding the city’s decision… that will increase the risk of death and injury to people using those roads.” (Ecojustice, along with the firm Paliare Roland, are representing Cycle Toronto and the individuals in the challenge.)
The argument is analogous to ones made recently regarding homeless encampments: courts have not declared that there’s a right to sleep in public parks under the Charter, but they have said that, when cities attempt to clear encampments, they have to do so in a way that respects the rights under Section 7. In practical terms, that has meant that cities are expected to provide reasonable shelter options.
Ford and Transportation Minister Prabmeet Sarkaria have said throughout the debate over Bill 212 that they’re amenable to seeing alternative bike-lane routes established elsewhere. The problem, one that’s been documented by the City of Toronto’s staff and will be obvious to anyone familiar with the city’s geography, is that there are no alternative routes equal to the bike lanes in question.
Additionally, the city and the Association of Municipalities of Ontario have argued that Bill 212 directly contradicts other legal obligations municipalities have. For example, provincial rules require them to plan for forms of mobility that go beyond just cars.
According to Roe, the lack of realistic accommodation and the internal contradictions in provincial policy show that the removal of the Toronto bike lanes is arbitrary and disproportionate to the government’s goal; those are among the specific tests used by courts to determine whether a government has breached Section 7.
“It’s contrary to the ministry’s own policies and planning documents,” Roe says, adding that Toronto’s bike lanes are being singled out by the government “without any evidence of their own… without any explanation.” That, she says, demonstrates how arbitrary the government’s decisions are.
Before any of this proceeds to a full hearing, Cycle Toronto is asking for an injunction preventing the government from touching Toronto’s bike lanes. That will necessarily be decided more quickly. The legal tests for an injunction include whether there’s a serious question of law, whether there’s a risk of irreparable harm, and where the balance of convenience falls. If an injunction is granted, it could delay any action on Toronto’s bike lanes for months or longer, potentially until after an election early in the new year.
But Roe says her clients aren’t just playing for time — they’re hoping to prevail in the final hearing as well.
Finally, Section 7 is one of the parts of the Charter of Rights and Freedoms that can be overridden via the use of Section 33, the so-called notwithstanding clause. The Ford government has already invoked the clause several times, with different eventual outcomes. In a statement last week, the premier indicated that, if courts strike down anti-encampment legislation, the government would be willing to invoke Section 33 to preserve it.
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