This article originally appeared in The Hub.
By Mark Mancini, August 5, 2025
The “Charter right to bike lanes” is not a term found in the lawbooks. Yet if a recent decision stands, governments will have to think hard about this new frontier in Charter litigation.
In the Cycle Toronto case, Justice Paul Schabas of the Ontario Superior Court held that the Ford government’s removal of bike lanes from various streets in Toronto violates Section 7 of the Charter, which guarantees the right to life, liberty, and security of the person, and not to be deprived thereof except in accordance with the principles of fundamental justice. Justice Schabas concluded that the decision to remove bike lanes violated a principle of fundamental justice protecting against arbitrariness.
The court’s decision hamstrings the government beyond what the Charter should contemplate. The government is right to appeal, if only to advance a different understanding of the law.
Consider the context of this case. The Ford government was elected on the agenda of removing bike lanes. That is an issue on which reasonable people can agree or disagree. It is the quintessential stuff of politics. At one level, there is a debate about whether bike lanes should exist or not. That is a normative question that people elect politicians to decide. At another level, there is the technical question of policy—where bike lanes should exist, how and when they should be constructed, and so on. This, in Canada’s largest city, is not small ball.
In an earlier era, when judges adhered more closely to the common law tradition, there was a recognition of judicial humility in such situations. In Irwin Toy Ltd v Quebec, an early Charter case, the Supreme Court drew a distinction between situations when the government is characterized as “the singular antagonist of the individual whose right has been infringed” and where “the government is best characterized as mediating between the claims of competing individuals and groups.” In the former case—think a police officer conducting a search in a home or the government seizing assets—courts will take a harder look at government action.
But where government action mediates between different groups based on “conflicting scientific evidence and differing justified demands on scarce resources,” the Supreme Court wisely instructed courts to be careful. The judiciary should not second-guess the judgments made by legislatures and governments in conditions of deep uncertainty. In such situations, the court should not—from high up on the bench—hold the government to law-book logic without reflection on the circumstances in which government policy must be formulated. It is very easy to describe government action that balances competing goods as “arbitrary,” even if there is a basic rationality that motivates it.
This is the effect of Justice Schabas’ decision. Without consulting precedent like the Irwin Toy ruling, he faulted the government for failing to offer enough evidence on “the key issue of whether restoring a lane of motor vehicle traffic will in fact alleviate congestion.” He, relying on studies that mostly forecasted the potential congestive effect of bike lane removals, found fault with the government’s justification. Then, relying on expert evidence, he concluded that the government’s choice to remove bike lanes “will put people at increased risk of harm and death.”
Putting this together, the conclusion emerges: the Charter requires bike lanes in light of the potential risks, unless the government can prove to a standard of certainty that bike lanes will reduce congestion.
This standard is not clearly required by the Charter, and a certainty requirement misconceives the art of government. In RJR-MacDonald Inc. v. Canada, the Supreme Court said that in complex situations, governments need not produce reams of social science evidence. It is true that the government could have offered more evidence. But complex social science evidence should not always be required to justify government decisions, especially where it is balancing incommensurate goods. In this area of policymaking, certainty is absent, and the right legal answer cannot be summed up with a calculator.
Governments are elected to decide. It is true that there was evidence supporting the position that bike lanes prevent risk to life. Still, the court identified some evidence to support the idea that congestion could be reduced temporarily, and the government’s expert offered the position that “bike lane development should be part of holistic urban planning approach rather than implemented as standalone infrastructure.” In other words, it is possible that the government’s approach could be informed by broader questions of design that could mitigate or impact any potential risks—and could change the constitutional calculus.
Justice Schabas, however, was not willing to look beyond these three bike lanes. In fact, he cannot, because the judicial role simply does not allow it. It is worth noting that he could not hear evidence about the empirical impact of his own decision on the polycentric concerns at stake in this case. It is entirely possible that municipalities and provinces will be more reticent to install bike lanes if there is a potential Charter right acting as a veto point against taking them out again. In that case, the cyclists might lose their war for more bike lanes by winning this Charter battle, all the while increasing risks to life and safety. Every choice in this area will have tradeoffs that could be arbitrary. Such is life.
Justice Schabas followed the law as he sees it. But the fundamental principle of fundamental justice—non-arbitrariness—should be calibrated with a dose of judicial humility. The fact that a legislative decision is not perfectly rational by social science terms does not necessarily mean it is arbitrary
And rejecting a Charter right to bike lanes does not entail rejecting the Charter altogether, or saying that all social policy is immune from Charter scrutiny. Rather, the point is that courts—recognizing the fragility of their legitimacy under the Charter—should afford significant deference to legislative and government decisions that seek to balance complex social goods under Section 7’s broad language, and then under the Charter’s reasonable limits clause. Before calling something arbitrary, and rather than requiring certainty, courts should stay their hands when the government offers some argument to support its choices in a complex area of regulation, as it did here.
In the end, this is a lower court decision that will be appealed—not a statement for all time. Expectations should be calibrated accordingly. But it is worth asking whether there is a better way to think about “non-arbitrariness” when it comes to complex government decision-making. The Charter is legitimate, an act adopted under conditions of extraordinary political compromise. That only heightens the importance of the passive virtues in constitutional adjudication. Decisions like Cycle Toronto, far from vindicating Charter rights, serve to loosen and dilute them. Those who support the Charter should pay attention.
Mark Mancini is a senior fellow at the Macdonald-Laurier Institute and an assistant professor at Thompson Rivers University, Faculty of Law. He holds a J.D. from the University of New Brunswick, Faculty of Law, and an LL.M. from the University of Chicago Law School.
