In my last post, I defended the soundness of Ontario’s Superior Court’s judgment in Cycle Toronto v Ontario (Attorney General), 2025 ONSC 4397. This held that a statute ordering or enabling the removal of a number of bike lanes in Toronto was an unjustified violation of their users’ right, under section 7 of the Canadian Charter of Rights and Freedoms, not to be deprived of life and security of the person inconsistently with the principles of fundamental justice. I think it is fair to say, however, that the judgment’s critics have been many, including in some cases among people not inclined to knee-jerk attacks on the judiciary (though theree have been plenty of these too). Co-blogger Mark Mancini’s critique (originally published in The Hub, and available from the Macdonald-Laurier Institute, where we are both Senior Fellows) is a worthy example, and I would like to respond to it here.
At the heart of Mark’s argument, and of any number of others, is the view that the removal of the bike lanes at issue
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.
The “stuff of politics” is, we must understand, exclusively the stuff of politics. Judges should stay in their lane — otherwise, they risk swerving into this forbidden realm. In part, this argument rests on institutional competence considerations; but mostly, it is a constitutional claim. It is not the role of the courts to interfere “where government action mediates between different groups”, or where “legislatures and governments” are acting “in conditions of deep uncertainty”.
I don’t think this is either normatively compelling or consistent with how the law works in other areas. Mark’s argument echoes that of Chief Justice Glenn Joyal at the Runnymede Conference of 2017 to the effect that
judicial incursion into subject areas and issues of profound political, moral and social complexity … has the potential effect of removing these issues from the civic and political realms where ongoing and evolving debate and discussion may have taken place.
And, as I wrote about this view here, it is in turn an echo of Jeremy Waldron’s argument against judicial review of legislation, though — unlike Professor Waldron and, I strongly suspect, many of the critics of Cycle Toronto, some of whom have mused about the “notwithstanding clause” being invoked to overturn it — Chief Justice Joyal and Mark do not say that this argument applies to each and every conceivable dispute about rights. But even in this moderate form, the argument is not persuasive.
As I explained in my response to Chief Justice Joyal, “[t]he frontiers between law’s empire and that of politics are not immutable. There is no reason to believe that the position that every social issue” — or any of them — “is by default subject to politics is entitled to be treated as a baseline against which a polity’s constitutional arrangements ought to be measured, and any departure from it justified and limited”. I gave the example of minimal wages and other economic arrangements: these would, once, have been thought to be a matter “between master and servant”, not something for politicians to deal with. Regrettably, that is no longer true. But the point is: there just isn’t a list potential issues that are inherently “the stuff of politics” in which courts mustn’t meddle on account of their normativity, compexity, or whatever. People have views about such things, and legal cultures may from time to time converge on consensus views. But these views are debatable and subject to change.
The enactment of the Charter means that whatever consensus view may have existed before 1982 is no longer entitled to automatic deference — I’ve made a similar point when discussing the Supreme Court’s decision in Canada (Attorney General) v Power, 2024 SCC 26, and specifically Justice Rowe’s dissent, which rests on a wholly unjustified presumtion that the Charter didn’t change the relationships between courts and legislatures (there in the context of damages for unconstitutional legislation). It won’t do to say, “this is the sort of issue we’ve always dealt with politically, so courts have better stay away from it”. At best, you have to demonstrate that any given issue isn’t justiciable.
And this brings me to my more descriptive point, which is that the law doesn’t take the general view that an issue’s normative implications or the uncertainty that surrounds it make it non-justiciable. In administrative law, there are no such exceptions to the reviewability of governmental decisions, and there weren’t prior to the Charter either. Quite apart from any Charter issues, if it had been the Toronto City Council rather than the provincial legislature that had decided to dismantle the bike lanes at issue in Cycle Toronto, its decision could have been challenged as unreasonable.
Under Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653, this would have required a court to ensure that the Council
[took] the evidentiary record and the general factual matrix that [bore] on its decision into account, and its decision must be reasonable in light of them … The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. [126]
And while this assessment is a deferential one, deference under Vavilov is not a euphemism for non-justiciability. Moreover, the reviewing court is entitled to look at the consistency between the challenged decision and the decision-maker’s earlier decisions and policies. While a departure is permissible, there has to be some sort of reason for it; an unexplained change of policy can indicate unreasonableness. Finally, again quite apart from specifically constitutional concerns, Vavilov invites courts reviewing administrative decisions to scrutinize them more carefully when the stakes for the party affected are especially high. There are no exceptions here for politically controversial issues, or ones where different groups of people are affected. Vavilov, for better or for worse, sets out generally applicable principles.
Of course, courts are not entitled to scrutinize all legislation in this way. That is too bad, because really rationality isn’t too high a bar to hold the state to, even when it legislates, but that’s how it is. But then, the Charter sometimes makes an exception and says that legislation that produces some consequences — such as endagering life and limb — is in fact subject to scrutiny. And that’s exactly what Cycle Toronto is about. The legislation it considered made no sense in light of the evidence available to the government and legislature and of the city’s general bike lanes scheme, while its likely effects are very serious. Since it affects the interests protected by section 7 of the Charter, there is nothing troubling about a holding that such unreasonableness is arbitrary and hence contrary to the principles of fundamental justice.
People who think Cycle Toronto was an example of judicial overreach should perhaps consider another example that has just come up in the news: the Nova Scotia ban on hiking or riding in the province’s forests, which is supposed to be a means of preventing wildfires. This is also an attempt to deal with an inherently uncertain situation where scarce resources must be conserved and the interests of different groups (e.g. hikers and people who stand to lose their property if more fires break out) must somehow be balanced. I do not mean to suggest that the Nova Scotia’s government is acting irrationally — I don’t know nearly enough about the facts — but suppose you think it is. Maybe the Premier spent the last election campaign dunking on hikers with half as much vitriol as Rob Ford directed at cyclists, or something. If someone has evidence of this and brings a judicial review claim against the government’s order (on administrative law grounds; I don’t think Charter rights are involved there), should the court wash its hands of it? Maybe the Canadian Constitution Foundation, for all its outrage, thinks so. But I don’t, and you don’t have to either.
Public law imposes certain standards of rationality on the government. Some, found in administrative law, apply to all sorts of decisions, but only to the executive. Others apply to legislatures too, but in a narrower range of circumstances, defined by the Charter. Either way, though, there’s nothing problematic with demanding that the government act on evidence and reason rather than on the whim of whomever happens to have won the most votes. It is fine to say that courts should stay in their lane — this blog does that often enough. But the lane is wider than too many people suppose.