Adam Zivo: When unelected judges invent rights to bike lanes and drug dens, something's wrong
On Wednesday, Ontario Premier Doug Ford claimed that Canada's politically appointed judiciary is overstepping its authority and that judges should be elected so that they are more responsive to the will of the people. His criticisms are absolutely warranted: judicial activism has run amok, causing demonstrable harms.
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Ford's comments were prompted by a recent legal battle over a law, Bill 212, that his government passed last November, to forcibly remove bike lanes on three major Toronto streets.
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Biking activists sued the province in December, arguing that the law violates cyclists' Section 7 Charter rights ('the right to life, liberty and security of the person'), and sought a preliminary injunction blocking enforcement until their case could be fully adjudicated in court.
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There is a clear test for granting such injunctions: (1) the request must concern a serious issue; (2) the applicant must experience 'irreparable harm' if the injunction is not granted; and (3) the benefits of the injunction must not outweigh any harm it causes to the public interest (this is known as the 'balance of convenience').
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When the Supreme Court established this test, though, it emphasized that there is a strong public interest in respecting the authority of the legislative and executive branches of government.
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Nullifying duly enacted laws erodes the separation of powers, so, ideally, this should only be done after a full hearing, especially if constitutional matters are involved. Overruling Parliament via preliminary injunctions is supposed to be reserved for 'clear cases.'
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Likewise, when determining a balance of convenience, judges are supposed to assume that duly enacted laws serve the public interest as intended. If this is not actually the case, that is only to be recognized in the final ruling.
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With Bill 212, an Ontario Superior Court judge, Stephen E. Firestone, initially ruled that the activists had not met the 'heavy burden' of demonstrating that sufficient harms or 'a compelling overall public interest rationale' justified nullifying the provincial legislature's authority.
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He argued that, while removing bike lanes may irreparably harm some cyclists, 'this is not a case where the applicants have no viable alternative means of transportation,' and that biking is a voluntary choice for the vast majority of people.
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'The courts' role on this interlocutory motion is not to second-guess the wisdom of the policy or to question whether it really serves the public interest. It is assumed to do so,' emphasized Firestone, correctly.
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