Toronto Bike Lane Battle Lands in Court: Judge Weighs Rights, Safety, and the Province’s Power to Remove Cycling Infrastructure
On Wednesday, April 16, Cycle Toronto’s legal challenge against the removal of bike lanes on three major roads in Toronto—Bloor, University, and Yonge—was heard in court. In the next few days, Judge Paul Schabas will decide on whether to temporarily bar the government from removing the lanes. He will render a final decision on the case in the coming months.
The applicants in the case included grassroots advocacy organization Cycle Toronto, along with two cyclists who would be directly affected by the removal of the bike lanes: University of Toronto student Eva Stanger-Ross, who uses the lanes on her daily commute, and full-time bike delivery person Narada Kiono, who uses the lanes to do his work. They were represented by legal firms Paliare Roland Rosenberg Rothstein and Ecojustice.
Cyclists ride in a bike lane on University Avenue in Toronto on December 13, 2024. THE CANADIAN PRESS/Laura Proctor
Cycle Toronto and the two cyclists brought a Charter challenge against the Province’s decision to remove the 19 kilometres of downtown bike lanes. They argue that the removal infringes the Canadian Charter of Rights and Freedoms—essentially, that removing the bike lanes will make the streets less safe for cyclists and other road users, depriving them of “life” and “security of the person”—rights that are guaranteed under the Charter.
The current challenge only challenges the removal of the three named bike lanes, and not the other provisions of Bill 212. The bill, passed in late November of last year, requires municipalities to ask the Province for permission to construct future bike lanes in the cases where they would displace a lane of motor vehicle traffic. The bill also gives the Province the ability to review bike lane projects that began in the past five years, with an eye to possible removals. It additionally allows for the construction of Highway 413 to begin before completing Indigenous consultation or environmental assessment—a project that is anticipated to pave over 2,000 acres of prime farmland, open up land to sprawl, and drive pollution into watersheds.
A cyclist rides in a bike lane on University Avenue in Toronto on Friday, December 13, 2024. THE CANADIAN PRESS/Laura Proctor
Points for Cycle Toronto
In order to support their case, the applicants presented a data-based analysis from civil engineering professor and infrastructure expert Shoshanna Saxe, along with reports supporting bike lanes from groups including theAssociation of Municipalities of Ontario, the Bloor Annex Business Improvement Area, the Ontario Professional Planners Institute, the Ontario Society of Professional Engineers, and the Ontario Traffic Council. A core idea is the established concept of induced demand: creating more space for cars, while alleviating congestion in the near term, will inevitably result in increased demand and a return to traffic jams.
While the Crown suggested that supporters of bike lanes are “partisan,” the applicants aimed to show that there is a mainstream professional consensus that bike lanes are ultimately helpful for alleviating congestion.
The applicants also pointed to a report by professional traffic engineers CIMA, commissioned by the Ontario government after introducing the bike lane removal bill, that concluded that removing the bike lanes would likely worsen congestion and lead to more collisions, causing cycling deaths along with greater rates of injury to cyclists and motorists alike.
Internal government documents obtained as part of the court case, and submitted as evidence by the applicants, showed that in contemplating what provincial staff called a “pro-driver bill,” staff noted that a policy of removing bike lanes would offer “little to no alignment with other provincial initiatives” including policies around “cargo e-bikes, e-scooters, and safe active transportation.” It also noted that, ultimately, “this measure might not have the desired impact on reducing congestion.”
Travelling south on Yonge Street at Scrivener Square. Photo taken October 11, 2021. (Photo via City of Toronto’s website)
Cycle Toronto’s case seemingly fell on receptive ears: from the bench, Justice Paul Schabas showed familiarity with the Toronto bike lane network and the concept of induced demand, and grilled the Crown attorneys for failing to present robust evidence to support their side of the case. Schabas said that he found one of the analyses the government lawyers presented “odd,” and observed that another chart in their case seemed to show approximately the same travel times on Bloor from before and after the bike lanes were installed.
One of the government’s key pieces of supporting evidence was a report from a collision reconstruction expert, relying largely on observational data. Judge Schabas said that he had problems with anecdotal evidence from both sides of the case, but found it particularly “surprising coming from the government.” When the issue of fire safety came up, for instance, the Crown relied on a letter from a former fire chief as evidence. The judge pointed out that if the government wanted to convince him to bike lanes led to increased travel time for emergency vehicles, they should have instead produced hard data from current fire department and emergency medical service departments—which they could readily obtain.
Cycle Toronto’s Facebook page
Deprivation—or a case of positive rights?
The core of the issue may not be whether bike lanes are beneficial, but rather, a more technical issue of whether the Province has a right to remove them. This hinges on the question of whether the removal of the bike lanes deprives road users of life and the security of the person, or whether it is merely restoring the status quo situation before bike lanes existed.
In the Province’s argument, cyclists do not have a Charter-protected right to protected bike lanes: after all, a decade ago, the bike lanes didn’t exist. In legal terms, cyclists don’t have a “positive right” to bike lanes. As Crown attorney Josh Hunter put it, “the government giveth, the government taketh away.”
The judge summed up, “your argument is that the Charter shouldn’t have anything to do with traffic management.”
Cycle Toronto’s lawyers, on the other hand, argued that while the Province of Ontario is not obliged to provide safe infrastructure, when another State actor does, the Province should not be allowed to impede it.
While the Charter protects rights, it also states that these rights and freedoms can be lawfully limited by the state—so long as these limits are reasonable and can be justified in a free and democratic society. To decide whether a government action that infringes a Charter right is unlawful, the government must show that the law is rationally connected to a pressing and substantial objective, that the law is minimally impairing of the Charter right, and that the beneficial effects of the law outweighs its negative effects on the Charter right in question.
The applicants asserted that the way in which the bike lane removals were passed in law violated two of these fundamental principles of justice. First, they said, it is arbitrary: there is no rational connection between the purported object of the law (reducing traffic congestion) and its effect. Second, there is a grossly disproportionate negative effect—even if the law was successful in reducing travel times, it would only be by a few minutes at best—a marginal time savings which would be paid for in the much larger cost of cyclists’ lives.
They added that while the legislature “is free to make legislation that is ineffective,” they are obliged to protect children—who are among the cyclists who use these routes—and cannot be allowed to enact a “folly” that would have a detrimental (and possibly deadly) effect on kids.
Crown lawyers countered that while in the lay sense this bill “deprives” cyclists of bike lanes, it is not a “deprivation” in the legal sense of the term. Moreover, they said, the law is not arbitrary since it opens up an additional lane for motor vehicles—meeting the bar of having a logical connection to the stated objective of reducing congestion. The large number of road drivers using arterials such as Bloor, they added, means that even a marginal reduction in travel time would not be grossly disproportionate to the potential harm caused. The effects, they conceded, might be “deleterious,” but were not “grossly deleterious.”
Judge Schabas reserved his decision, saying that “it’s a difficult, complex, and challenging case.”
The post Toronto Bike Lane Battle Lands in Court: Judge Weighs Rights, Safety, and the Province’s Power to Remove Cycling Infrastructure appeared first on Canadian Architect.
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