A judge struck down the Ford government's bike lane removals in Toronto. What comes next?
The decision handed a big win to advocacy group Cycle Toronto and two individual cyclists who challenged the law in court.
Here's what you need to know about case and what might come next:
What was the law meant to do
Bill 212, titled the 'Reducing Gridlock, Saving You Time Act' was introduced in the legislature in October and passed the following month.
Among other things, it called for the removal of bike lanes along Bloor Street, Yonge Street and University Avenue in Toronto.
Why did the judge strike it down?
Ultimately, the judge agreed with the evidence that removal of the bike lanes would put people at increased risk of harm and death, violating the right to life and security of the person under the Canadian Charter of Rights and Freedoms enshrined in the constitution.
But perhaps more importantly, the judge found that the government had not presented any evidence to support its claims.
'It's a spectacular failure on the part of the Ontario government to defend its decision to remove bike lanes,' David Schneiderman told CP24.com
A professor of constitutional law at the University of Toronto, Schneiderman said the government's case had little chance of success, even if the judge had been sympathetic, because of the lack of evidence to back up the province's claims.
'It's hard to predict many of these kinds of charter claims. It depends on how deferential a judge wants to be,' Schneiderman said. 'But it wasn't available to judge Schabas to be deferential because there was no evidence, and the Ontario government's own experts failed to show that there was any correlation between removing bike lanes and improving congestion in the City of Toronto.'
Ontario bike lanes
A cyclist rides in a bike lane on University Avenue in Toronto on Friday, December 13, 2024. THE CANADIAN PRESS/Laura Proctor
(Laura Proctor/The Canadian Press)
What message does the ruling send?
'It should send a message to this province and others that when they're providing services of whatever sort, when they act in ways that endanger lives, physical security, or generally make the situation worse for the people who are receiving those services without some evidence to support that decision, then it might very well be that it'll give rise to a charter claim,' Schneiderman said.
What happens next?
The government has already said that it plans to appeal the ruling, however Schneiderman said it will likely face an uphill battle because there is so little evidence the government presented in the original case.
'When cases go on appeal, the facts that are on the record are not contested. They can't be,' Schneiderman said. 'The hearing established certain facts, and the fact is that there was no evidence offered by the government to support the decision to remove bike lanes. So without facts to support their decision, it's a real uphill climb.'
Why is government bothering with case if it's weak?
While the government may have lost in court, they scored a win in another way, one political observer pointed out.
'They believe that the public is on their side. They particularly believe that their voter coalition is heavily opposed to bike lanes,' CTV News Political Analyst Scott Reid pointed out. 'So they think that the visibility of this sue, the volume with which they pursued it, and the conflict that's produced by a court challenge and even a court loss helps amplify their championing of this issue and therefore cements their political position.
'Arguably, they believe they are bigger winners by being losers, because it catapults this issue back to the front of the news cycle and reignites coverage and conversation, and they are positive that they're the overwhelming beneficiaries of that.'
Biking
A cyclist rides in a bike lane on University Avenue in Toronto on Friday, December 13, 2024. THE CANADIAN PRESS/Laura Proctor
But in addition to being seen as champions against gridlock, Reid said, the issue gives the government an enemy to fight against.
'This issue forces their preferred opponents to come out and vocally support bike lanes, which the Ford government believes not only puts those stakeholders at odds with the general public, but they think it even puts them at odds with traditional downtown voting coalitions,' Reid said. 'They think this is an orphan issue that has relatively few champions, but for hardcore urbanists and so they see this as pure political charm.'
But while the cycling advocates win in court and the government scores a political win, it's the voters who are ultimately the losers, Reid said, if they end up paying for infrastructure to be built and then ripped up, as well as for a court battle to be fought over the issue.
What about the notwithstanding clause?
If the government were to appeal the case and lose, it could still use the notwithstanding clause to override the charter.
But would it?
The Ford government has shown a willingness to do so before. It used the notwithstanding clause to push through a law limiting third party election advertising in 2021. It also threatened to use the clause when it unilaterally shrunk the size of Toronto City Council just ahead of a municipal election in 2018, and moved to block a teacher's strike in 2022.
Schneiderman agrees the government could decide to make use of the clause if it loses an appeal in court, but he added that whether it does so could come down to a matter of public opinion over the issue.
'In my view, the notwithstanding clause is there to protect the citizens from rogue courts that make decisions that are against the public interest,' Schneiderman said. 'It's not just for provinces or the federal government to use in the case of a popularity contest. It's not about that. It shouldn't be.'
In this case the question could be 'how popular are cyclists' in Toronto, Schneiderman said.
He explains that while the notwithstanding clause is available to the government to override charter rights, voters could punish governments that curtail them.
'It's not a really popular thing. People like their rights. People like the fact that they have rights, and they don't like governments to be seen to be trampling on them.'
Reid said there's another reason the government might be hesitant to invoking the notwithstanding clause.
'I would be surprised if they reached for the notwithstanding clause, for no other reason than they might fear that it actually pollutes this issue, and instead of allowing them to repeat their arguments around bike lanes and enjoy the cut and thrust of the usual suspects who oppose the Ford government on bike lanes, that it might transform the issue, sort of alchemize it into something else that's got less public appeal and might cut more against their grain,' Reid said.
He added that they've 'been burned' by using it in the past since its use itself becomes a polarizing issue that may invite questions about other rights being curbed.
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