The Laws of Motion: Section 7 Challenges + Bike Lanes
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4 min read
Overview
Bike lanes have become an increasingly prominent issue in municipal transportation planning, particularly as provinces consider a greater role in how they are regulated. The Ontario Court of Appeal’s recent decision in Cycle Toronto v. Ontario (Attorney General) found that section 7 of the Canadian Charter of Rights and Freedoms does not create a constitutional right to bike lanes. The decision may be particularly relevant in Alberta as the provincial government considers changes to its own approach to bike lane regulation.
Section 195.6 of the Ontario Highway Traffic Act
Alberta’s proposed amendments mirror similar legislation in Ontario. In 2024, the Ontario Legislature enacted the Reducing Gridlock, Saving You Time Act, 2024, which amended the Highway Traffic Act by adding s. 195.6. This provision directed the Minister of Transportation to “remove” (later changed to “reconfigure”) bike lanes from three major streets in downtown Toronto. In response, Cycle Toronto and two individual applicants brought an application for a declaration that s. 195.6 infringed s. 7 of the Charter.
The application judge found that removing the bike lanes would make roads less safe for cyclists, increasing the risk of collisions, injuries, and death. On that basis, he concluded that s. 195.6 engaged the rights to life and security of the person protected by s. 7 of the Charter and violated the principles of fundamental justice. In particular, he held that there was no rational connection between the legislation’s objective and its effects, rendering the provision arbitrary. He further concluded that the harms associated with removing the bike lanes were grossly disproportionate to the purported benefit of reducing drivers’ travel times. Accordingly, he held that s. 195.6 of the Highway Traffic Act was unconstitutional.
The Court of Appeal Decision: Cycle Toronto v. Ontario
In response, the Attorney General of Ontario and the Minister of Transportation appealed the decision to the Court of Appeal, arguing that the application judge erred by failing to recognize that s. 7 of the Charter is concerned only with deprivations of rights resulting from state action and does not create a positive right to “state-provided harm reduction measures.”
The Court considered its recent decision in Drover v. Canada (Attorney General), which recognized that s. 7 may be engaged by legislation extending beyond the administration of justice context. However, while s. 7 may apply within the broader context contemplated in Drover, the Court found that it was not engaged in the circumstances of this case.
“There Is No Charter Right to Bicycle Lanes”
The Court also emphasized that while all legislation is subject to the Charter, legislatures remain free to amend or repeal prior laws, even if those laws promoted or enhanced Charter values. As such, repealing or changing beneficial legislation does not, by itself, violate the Charter unless the new legislation independently infringes a Charter right. This principle has been repeatedly affirmed by the Supreme Court of Canada, including in R. v. Sharma, which held that Parliament is not bound by its past policy choice.
In reaching that conclusion, the Court held that preventing the removal of bicycle lanes under s. 7 of the Charter would effectively create a constitutional right to those lanes and the protections they provide. In effect, such an order would preserve a prior legislative regime as a constitutional requirement. Relying on Toronto (City) v. Ontario (Attorney General), the Court emphasized that claims seeking to preserve or reinstate a prior legislative framework are, in substance, claims for positive rights. Accordingly, the constitutionality of new legislation must be assessed on its own terms, rather than by reference to the legislative regime it replaced.
Principles of Fundamental Justice
Furthermore, the Court held that even if the removal of the bike lanes constituted a deprivation of life or security of the person, any such deprivation would be in accordance with the principles of fundamental justice and therefore would not infringe s. 7 of the Charter. In addressing the applications judges’ affirmation of arbitrariness, the Court considered whether there was a rational connection between the legislation’s objective of reducing traffic congestion and its requirement that bike lanes be removed or reconfigured to increase capacity for motor vehicles. It concluded that such a connection existed, relying on a common sense assumption that removing bike lanes may, at least to some extent and for some period of time, alleviate motor vehicle congestion. It further emphasized that assumptions grounded in ordinary experience and common sense need not be supported by empirical evidence. This assumption was sufficient to establish a rational connection between the legislation and its objective, thereby defeating the claim that the legislation was arbitrary.
In regard to gross disproportionality, the Court held that the application judge misapplied the gross disproportionality standard by understating the legislation’s objective of reducing traffic congestion and overstating the harms associated with removing bike lanes. It emphasized that gross disproportionality is reserved for extreme cases and that the proper inquiry for gross disproportionality under Canada (Attorney General) v. Bedford requires an exceptionally high threshold. The Court concluded that ordinary traffic regulation, including the removal of bike lanes, cannot be equated with the extreme measures required to establish gross disproportionality.
Moving Forward
Cycle Toronto confirms that provincial legislation regulating traffic flow through the regulation or removal of bike lanes will not infringe s. 7 of the Charter. The decision reinforces the high threshold required to establish a s. 7 violation and reinforces the principle that ordinary traffic regulation is a matter of legislative policy rather than constitutional adjudication.
Going forward, Cycle Toronto is likely to have significant implications for ongoing political and legal debates concerning municipal infrastructure policy, including the Alberta government's proposed amendments to the Traffic Safety Act. By reaffirming that legislatures may amend, repeal, or reverse prior policy choices without thereby infringing the Charter, Cycle Toronto provides important guidance on the constitutional limits of judicial review in the context of infrastructure and transportation policy
As governments reconsider how bike lanes and other transportation infrastructure are regulated, municipalities may face new questions about provincial authority, municipal decision-making and the constitutional limits of transportation policy. If your municipality needs guidance on how proposed legislative changes could affect local infrastructure planning or authority, contact Anthony Burden or any member of Field Law’s Municipal Group.
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