Dr. Shoshanna Saxe

The provincial legislature passed legislation to remove certain bicycle lanes in Toronto to reduce traffic congestion.

The respondents successfully challenged the legislation in Superior Court, arguing it violated section 7 of the Charter by depriving cyclists of security of the person in an arbitrary and grossly disproportionate manner.

On appeal, the Court of Appeal reversed the decision, holding that the Charter does not create a positive right to bicycle lanes and that the legislature's decision to repeal or amend prior policy choices regarding road use does not violate section 7.

The Court found the legislation was neither arbitrary nor grossly disproportionate.

The applicants challenged the constitutionality of section 195.6 of the Highway Traffic Act, which required the removal of protected bicycle lanes on Bloor Street, University Avenue, and Yonge Street in Toronto and their replacement with lanes for motor vehicle traffic.

The applicants argued that the provision violated section 7 of the Canadian Charter of Rights and Freedoms by putting cyclists at increased risk of injury and death, and that the infringement was arbitrary and grossly disproportionate to the stated objective of reducing traffic congestion.

The court found that the provision was unconstitutional, as the evidence established that removing the protected bike lanes would not achieve the stated objective of reducing congestion and would instead increase the risk of collisions and injuries for all road users.

The court also found that the government had been advised internally that the removal would not reduce congestion, yet proceeded with the legislation anyway.

The application was not moot despite subsequent amendments to the legislation, as the government retained the power and stated intention to remove the bike lanes.