A Constitutional Right to Two Wheels? An Expansion of Section 7’s Protection

How far beyond the scope of criminal law does section 7 of the Canadian Charter of Rights and Freedoms extend? According to the Ontario Superior Court of Justice, which granted a motion to strike in the recent interlocutory decision of Cycle Toronto et al. v. Attorney General of Ontario et al.,^[1] perhaps far enough to create a constitutional right to a bike lane.

This interlocutory decision arose from an application seeking an order striking down section 195.6 of the Highway Traffic Act,^[2] described as the “Target Bike Lane Removal Provision” (the “Provision”). Although Justice Schabas took the application decision under reserve, he granted the applicants’ request for an interlocutory injunction to suspend the operation of the Provision in the meantime. On July 7, 2025, the Divisional Court denied the Ontario government’s motion for leave to appeal the decision.^[3]

Although only an interlocutory judgement, this decision raises interesting questions regarding the proper interpretation of the Charter – and, in particular, how far the Court may be willing to stretch the right to life, liberty and security of the person.

Background

The Provision requires the Minister of Transportation to remove bicycle lanes currently installed in Toronto on Bloor Street, Yonge Street, and University Avenue. The applicants, which include the not-for-profit cycling advocacy organization “Cycle Toronto”, asserted that the Provision unjustifiably infringes the rights of Toronto cyclists and other road users under section 7 of the Charter by exposing them to a heightened risk of serious injury or death. The applicants also argued that the removal of the bike lanes is arbitrary and grossly disproportionate, and will not achieve the stated legislative purpose of reducing congestion.^[4]

The applicants moved for an interlocutory injunction for an interim period between mid-March and mid-April 2025.^[5] Regional Senior Justice Firestone declined to grant this injunction, without prejudice to the applicants’ ability to renew their request for interlocutory or permanent injunctive relief before the application judge.

The applicants made that request of Justice Schabas, in April 2025. As the application judge, Justice Schabas had a full evidentiary record before him. This placed Justice Schabas in a “very different position” than Firestone RSJ, who dismissed the applicants’ first request for an injunction.^[6]

The Legal Framework

The three-part test for granting an interlocutory injunction is set out in RJR-MacDonald Inc. v. Canada (Attorney General):^[7]

1. Whether the applicant presents a serious issue to be tried;
2. Whether the applicant will suffer from irreparable harm; and
3. Whether the balance of convenience favours the applicant  

Decision

Justice Schabas found that the applicants met each part of the test, based largely on his finding of a potential infringement of their section 7 rights to life and security. He therefore granted the injunction sought by the applicants, suspending the operation of the Provision pending the release of the application decision.

1. Serious Issue to be Tried

Justice Schabas found that the applicants met the threshold of showing a serious issue to be tried, based on the potential infringement of their section 7 rights to life and security of the person.^[8] Interestingly, the government conceded in oral argument that the right to security of the person was engaged in this case as a result of the risk of harm flowing from the removal of the bike lanes.^[9]

Justice Schabas deferred on the question of whether this case involves a “positive rights” claim, which courts to date have not recognized as being protected under section 7. In other words, section 7 of the Charter has thus far been interpreted as requiring the government to avoid depriving individuals of their claimed right. A positive rights claim, by contrast, would require the government to take certain actions; this has not yet been recognized as falling within the scope of section 7. Acknowledging that this question may be dispositive of the matter, Justice Schabas stated that it required a “thorough analysis” and that he would address the matter in his decision on the application. It is unclear why this question — a legal one — was deferred to the application, rather than being decided on the same evidentiary record at this stage.

2. Irreparable Harm

The applicants established irreparable harm due to the possible risk of increased collisions, injury, and death of cyclists if the bike lanes are removed.^[10] Although Justice Schabas did not detail all the evidence he reviewed, he noted that it was more extensive than what was before Regional Senior Justice Firestone, who also found the balance favoured the applicants. Some of the evidence before Regional Senior Justice Firestone, and now before Justice Schabas, included City of Toronto studies showing a 56% reduction in collision rates — though not specifically attributed to the bike lanes — and a report from the Chief Coroner for Ontario acknowledging that cyclists are among the most vulnerable road users.^[11] Later in his decision, Justice Schabas also noted that one of the applicants’ experts — an epidemiologist — presented “compelling” expert evidence showing that removing the bike lanes would lead to more accidents and injuries.^[12]

3. Balance of Convenience

Justice Schabas found that the balance of convenience favours the applicants, largely because the public interest in preventing harm outweighs the presumed public benefit of the legislation. Although the government argued that removing the bike lanes would serve the public good by reducing congestion and increasing road safety, Justice Schabas found that the applicants put forward compelling evidence to the contrary, and concluded that the removal would have little effect on these goals and would likely lead to more accidents.^[13]

Justice Schabas also emphasized the need to balance the assumed benefits of legislation against the evidence of a potential violation of Charter rights.^[14] While he did not address the merits of the applicants’ section 7 arguments, he ultimately concluded that he must grant the temporary injunction to properly balance “the right of the government to enact and implement legislation against the importance of protecting the rights contained in the Charter.”^[15]

Key Takeaways

• Section 7 of the Charter has traditionally been applied within the criminal law context. It is situated within the section of the Charter titled “Legal Rights”, which includes protections for those dealing with the justice system such as the right to be secure from unreasonable search and seizure (section 8) and the right not to be arbitrarily detained or imprisoned (section 9). Cycle Toronto is consistent with, and arguably goes further than, cases that have expanded the ambit of section 7’s protection beyond the criminal law context. For example, in Mathur v. Ontario,^[16] the Court of Appeal for Ontario recognized that the threats posed by climate change infringe the section 7 rights of young people and Ontarians in general. In Drover v. Canada, the Court of Appeal for Ontario divided on the question of whether section 7 protection is limited to “administration of justice” interests, with the majority recognizing that the choice of where to live is a personal decision protected by section 7.^[17]
• No court has yet accepted that section 7 protects positive rights. The Supreme Court of Canada in Gosselin v. Québec left “open the possibility that a positive obligation to sustain life, liberty, or security of the person may be made out in special circumstances.”^[18] While Justice Schabas declined to decide the issue for now, leaving it to be decided on the application.
• This decision is only an interlocutory injunction, but it endorses a novel and ambitious argument that could see section 7 extended beyond its traditional boundaries, even on a limited evidentiary record. Whether the Court will ultimately expand the reach of section 7 to protect a constitutional right to a bike lane remains to be seen.

^[1] Cycle Toronto et al. v. Attorney General of Ontario et al., 2025 ONSC 2424 [“Cycle Toronto 2025A”].

^[2] Highway Traffic Act, RSO 1990, c H.8, s 195.6.

^[3] Attorney General of Ontario and the Minister of Transportation v Cycle Ontario, Eva Stranger-Ross and Narada Kiondo, 2025 ONSC 3837 [“Attorney General”].

^[4] Cycle Toronto 2025A at para 4.

^[5] Cycle Toronto 2025A at para 6, citing Cycle Toronto et al. v. Attorney General of Ontario et al., 2025 ONSC 1650

[“Cycle Toronto 2025B”].

^[6] Cycle Toronto 2025A at para 9.

^[7] RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 at p. 334 [“RJR-MacDonald”].

^[8] Cycle Toronto 2025A at paras 12-15.

^[9] Cycle Toronto 2025A at paras 15, 17.

^[10] Cycle Toronto 2025A at para 18.

^[11] Cycle Toronto 2025B at para 59.

^[12] Cycle Toronto 2025A at para 18.

^[13] Cycle Toronto 2025A at paras 24-26.

^[14] Cycle Toronto 2025A at para 32.

^[15] Cycle Toronto 2025A at para 40.

^[16] Mathur v. Ontario, 2024 ONCA 762 [“Mathur”]; leave to appeal denied in 2025 CanLII 38373.

^[17] Drover v. Canada (Attorney General), 2025 ONCA 468.

^[18] Gosselin v. Québec (Attorney General), 2002 SCC 84 at para 80 [“Gosselin”].