Christopher Dummitt: Judge brought politics through the back door in Toronto bike lane case

National Post

2 days ago

The recent decision by the Ontario Superior Court rendering the removal of Toronto's bike lanes unconstitutional recalls the great Dr. Seuss book Oh, The Thinks You Can Think. Just think how we could change Canada if we take the logic of this ruling and keep going.
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Oh, the thinks we could think.
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The case, Cycle Toronto et al. v. Ontario, parsed the Ford government's decision to close bike lanes on several Toronto streets. A group of cycling activists protested the closure, claiming that closing the bike lanes would not improve traffic congestion (as claimed by the government) and, most importantly, that it would harm cyclists.
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This last point was key as it was central to the cyclists' argument that the removal of bike lanes would infringe their Section 7 Charter right to 'life, liberty and security of the person.'
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Justice Paul Schabas sided with the cycling activists. He didn't state that bike lanes were a right, rather, that removing bike lanes would violate the rights of cyclists, as their evidence showed that they would be more likely to be injured and or killed on roads without separated bike lanes.
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On the messy question of balancing interests between cyclists and drivers, and the different priorities of government, the judge seems to have simply relied on the expert testimony provided to him on road safety and traffic congestion — as well as his own wise opinion on how to interpret it all.
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Reading the ruling takes me back to my university political theory days and to Plato's Republic with its philosopher kings. But here it's made modern — a vision of government via technocratic expertise, refracted through judicial wisdom.
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Imagine what other controversial political questions could be answered by experts and judges without the messy interference of politicians and democracy.
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How about Premier Doug Ford's choice to raise the speed limits on some highways? Experts have already warned that higher speed limits lead to more traffic fatalities. This initiative might be considered unconstitutional if we apply the reasoning in the Cycle Toronto ruling.
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But why stop there? Let's go to federal politics. The Carney government has said that it isn't going to expand pharmacare. But won't this damage Canadians' health? Couldn't this, too, be said to infringe upon our wildly expanded notion of Section 7 rights to 'life, liberty and security of the person'?
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Perhaps Ford shouldn't have been allowed to let alcohol be sold in Ontario's grocery stores and convenience stores. If this leads to higher rates of alcohol use, especially among youth, and we know that alcohol is bad for our health, then this policy can be said to have harmful effects.
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If you really wanted to think big about our Section 7 rights, even Canada's national defence policy can be considered harmful to Canadians. Too much spending might risk a greater chance of war and harm. Or, it could be that not enough spending risks conflict. It's hard to know. Luckily, according to the logic of the Cycle Toronto ruling, we don't need to worry. We can just rely on the expert class — overseen by a benevolent judge — to decide for us.
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This ruling doesn't come out of nowhere, of course. The debate on judicial activism is longstanding in our post-Charter Canada — on how much or how little deference judges should give to parliaments.
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But it's worth noting that the judges and the experts who testify before them don't come out of a vacuum. These are real people with individual political preferences. We already know the lopsided, left-leaning world of the university from which our 'experts' emerge. This kind of political skew misshapes peer review and undermines the expertise that judges rely on in court.
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Law schools are, sadly, no different. Law schools like the one at Queen's led the way in erasing John A. Macdonald from its building a few years ago. And before he became a judge, Justice Schabas himself led the charge to modernize and decolonize the Law Society of Upper Canada by switching its name to the Law Society of Ontario. He was also involved in mandating Ontario lawyers to promote diversity, equity and inclusion.
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It would be a lot easier to trust judicial oversight if it were, in fact, neutral. But rulings like Cycle Toronto show how a judge can work politics through the back door of judicial activism. In the process, they wildly inflate the notion of rights far beyond anything that was imagined back when the Charter was created in 1982.
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Journalist Andrew Coyne recently said that he is a critic of the 'notwithstanding clause,' that section of the 1982 Constitution that allows governments to temporarily override Charter rights. He says he much prefers Section 1 of the Charter, the 'reasonable limits clause,' which requires that judges place reasonable limits on Charter rights. The clause would ideally safeguard us from rights-based extremism in the courts, which could prevent society and government from functioning collectively.
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This is an entirely defensible position. But it depends on judges having a cautious approach to new rights claims. It depends on judges realizing that overriding policy set in the courts should be the very last resort. It depends on a ruling like Cycle Toronto being overturned and being seen as the political overreach that it very clearly is.
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