Pump the brakes: no constitutional guarantee for bike lanes

Is there a constitutional right to bike lines? In July 2025, the Ontario Superior Court said, “Yes”. It held that legislation that mandated the removal of Toronto bike lanes was unconstitutional because it deprived Torontonians of the right to life and security of the person, violating section 7 of the Charter of Rights and Freedoms. But in a decision released last week, the Ontario Court of Appeal unanimously disagreed¹. In overturning the lower court’s ruling, the Court of Appeal issued a plea for judicial restraint, emphasizing that policy decisions are for governments, not courts.

What you need to know

• Prior legislative schemes are not constitutional baselines. A legislature cannot bind its successors: different governments may have different policies and are free to amend or repeal legislation accordingly. While all legislation must comply with the Charter, the Charter does not preclude the repeal of legislation that the legislature was under no constitutional obligation to pass in the first place.
• The separation of powers requires courts to avoid commenting on policy decisions. The Court of Appeal criticized decisions that unnecessarily delve into policy decisions or second-guess political considerations. Commentary on a piece of legislation’s political background is unlikely to be relevant to constitutional questions and risks disturbing Canada’s separation of powers.
• The Charter does not guarantee a right to bike lanes. Any order prohibiting the removal of bike lanes would effectively constitutionalize them. But bike lanes are created by legislation and removing them does not breach a Charter right.

The Superior Court (handle)bars legislative efforts to remove bike lanes

In 2024, the Ontario legislature amended the Highway Traffic Act to require the City of Toronto to remove bike lanes from three major Toronto streets². Cycle Toronto, a charity advocating for cyclists in Toronto, started a Charter challenge, seeking a declaration that the legislation violated section 7 (the right to not be deprived of life, liberty, and security of the person except in accordance with the principles of fundamental justice)³.

The judge at first instance held that the removal of bike lanes unjustifiably infringed cyclists’ Charter rights⁴. By removing a safety feature on the roads, the law deprived Torontonians of their rights to life and security of the person. Moreover, the law was grossly disproportionate and arbitrary since the purpose for removing the bike lanes—reducing traffic congestion—was not supported by the advice presented to the legislature or the parties’ expert evidence.

The Court of Appeal switches gears

In Cycle Toronto v. Ontario (Attorney General), the Court of Appeal held that the application judge erred in law in interpreting and applying section 7.

The reasons (by Justice Huscroft, for a unanimous panel including Associate Chief Justice Fairburn and Justice Zarnett) are unusually dramatic for a judicial decision. In overturning the decision, the Court stated that “something has gone wrong”⁵. That statement was not simply directed to the application judge’s interpretation of section 7—it was more fundamental.

The Court of Appeal held that the application judge’s decision was inconsistent with two principles of Canada’s constitutional order. First, the separation of powers limits courts to adjudicating disputes arising under enacted law; they cannot get involved in government policy or the legislative process. Here, the application judge had improperly weighed in on policy and political considerations. Second, legislatures cannot bind their successors. The constitutionality of a piece of legislation must be assessed on its own terms, not by comparison to the benefits of a prior legislative scheme. If a government had no constitutional obligation to enact legislation in the first place, amending or repealing cannot raise constitutional concerns.

As the Court pointed out, there is no Charter right to bike lanes; rather, their existence was a legislative choice. As a result, their removal does not give rise to any deprivation of life, liberty, or security of the person under section 7.

The Court of Appeal also concluded that removing bike lanes also does not violate the principles of fundamental justice (the second condition of section 7). The application judge had found that two principles were violated: arbitrariness and gross disproportionality. The Court of Appeal disagreed. It held that legislation will only be arbitrary where it does not rationally contribute to achieving its goal at all. Arbitrariness cannot arise from mere disagreement as to the law’s efficacy. The finding that increasing the number of lanes available to motor vehicles will, at least to some extent, reduce traffic congestion was sufficient to meet this low threshold. The application judge also erred in concluding that the legislation was grossly disproportionate: i.e., the seriousness of the deprivation is not “completely out of sync” with the measure’s objectives. This standard will rarely be met and was not met by the traffic regulation legislation at issue.

Implications

1. The separation of powers requires courts to avoid commenting on policy decisions. Parties to Charter disputes often adduce an array of evidence on the policy decisions underlying executive and legislative actions. This evidence may tempt judges to wade into far-ranging policy debates; however, the Court urged judges to avoid this temptation. As the Court noted, “[p]olicy is for politics” and “[i]t is illegitimate for courts to involve themselves in matters of legislative policy”⁶. This is strong language by the Court urging restraint.
2. Legislative and regulatory rollbacks do not automatically warrant constitutional scrutiny. The Charter does not prevent the amendment or repeal of legislation where the legislature was under no constitutional obligation to enact it in the first place. To hold otherwise would establish prior legislative schemes as constitutional baselines and would allow legislatures to bind their successors. As a result, a Charter right will not be deprived simply because a regulatory benefit is withdrawn; a Charter breach must be shown independently of the prior legislative scheme.
3. The scope of section 7 awaits authoritative Supreme Court guidance. The Court of Appeal in Drover v. Canada (Attorney General) previously split on whether section 7 applies beyond matters involving the administration of justice⁷. Since the issue was not raised by the parties in Cycle Toronto, the Court elected not to revisit that issue. Instead, the Court noted that the issue will be raised squarely before the Supreme Court in Drover next term. We will have to wait and see whether Cycle Toronto seeks and receives leave from the Supreme Court in this case.