“No Charter right to bicycle lanes”: Court of Appeal for Ontario reins in section 7 claim

Key takeaways

• The Court of Appeal for Ontario unanimously held that the Ontario government’s decision to remove or reconfigure certain bicycle lanes in Toronto did not violate section 7 of the Charter.
• Ordinary legislation does not become constitutionally entrenched because it creates a benefit. A legislature is generally permitted to amend or repeal ordinary legislation that it was not constitutionally required to enact in the first place. The decision strongly reaffirms that legislatures are not constitutionally locked into their prior policy or legislative choices.
• Courts must distinguish constitutional review from policy review. Evidence that a law is merely unwise, unsupported by expert advice, or likely to produce undesirable effects does not make the law unconstitutional.
• The thresholds for arbitrariness and gross disproportionality in the context of section 7 of the Charter are high. Rationality can rest on common-sense inference, and gross disproportionality remains confined to truly exceptional cases.
• A key threshold question remains unresolved: can section 7 apply outside of the administration of justice context? The Court of Appeal assumed so, but declined to decide the point. This issue will be squarely raised before the Supreme Court in Drover, which was recently granted leave to appeal.

In Cycle Toronto v. Ontario (Attorney General), 2026 ONCA 582, the Court of Appeal for Ontario allowed the Province’s appeal from a judgment striking down legislation that required the removal or reconfiguration of certain Toronto bicycle lanes. Writing for the Court, Huscroft J.A. held that section 7 of the Charter was not engaged and, even if it were, the challenged law was neither arbitrary nor grossly disproportionate. The Court of Appeal’s reasoning is in line with the comments raised in our previous blog, Out of Its Lane? Ontario Court Creates Constitutional Right to a Bike Lane, on the application judge’s decision at first instance.

The judgment is a forceful reminder that ordinary legislation does not become constitutionally entrenched simply because it creates a benefit, reduces risk, or reflects a policy choice that some later come to regard as important. The decision provides important guidance on constitutional boundaries and the role of the courts in adjudicating section 7 claims: 

1. Courts adjudicate constitutionality, not policy wisdom;
2. Legislatures may amend or repeal prior legislative choices unless the Charter independently prevents them from doing so; and
3. Section 7 cannot be used to constitutionalize a statutory regime that the Constitution did not require.

The Court did not resolve the question characterized by the Supreme Court as unsettled: namely, whether section 7 protects state-imposed deprivations of life, liberty and security of the person outside of the context of the administration of justice. That will be a live issue before the Supreme Court in Drover (that appeal has not yet been scheduled).

Background

The bike lanes dispute arose from Ontario’s Reducing Gridlock, Saving You Time Act, 2024, which added section 195.6 to the Highway Traffic Act and required the Minister to remove bicycle lanes from Bloor Street, University Avenue, and Yonge Street in Toronto. After the application was launched, the legislature repealed and replaced that provision with a new version directing the Minister to “reconfigure” these bicycle lanes, and also added regulation-making authority concerning bicycle-lane removal under section 195.6.

Cycle Toronto and two individual cyclists sought a declaration that the legislation violated section 7 of the Charter, arguing that removing the bike lanes would make the roads less safe and increase the risk of collisions, injuries, and death. The application judge agreed. He found that the legislation engaged the rights to life and security of the person, was arbitrary because it would not actually reduce congestion, and was grossly disproportionate given the risks to cyclists. He also held that the breach could not be justified under section 1 of the Charter.

Ontario appealed on multiple grounds, including that section 7 was not engaged, that the claim improperly sought constitutional protection for a state-created benefit, and that the application judge erred in his arbitrariness and gross disproportionality analysis.

A forceful restatement of the separation of powers

Huscroft J.A., writing for the panel, began with a point that shaped the entire analysis: Charter review must be conducted within the framework of Canada’s broader democratic constitutional order. Courts do not participate in policy development or legislative choice — it would be “illegitimate” to do so. The Court’s role is to resolve legal disputes once legislation has been enacted.

In the Court’s view, the application judge had strayed into policy review. His reasons delved into the political background to the legislation, statements by ministers, public criticism, and internal government advice before addressing the constitutional question. None of that was relevant to the legal task before him, and neither the government nor the legislature was constitutionally obliged to accept the advice of officials, experts, or the public. Whether a law is wise or unwise is irrelevant to its constitutionality.

“The Charter does not preclude the repeal of legislation”

The heart of the judgment is the Court’s rejection of the idea that previously enacted legislation can become a constitutional floor. Although legislation that amends or repeals prior legislation remains subject to the Charter, a legislature is generally free to change laws it was not constitutionally required to enact in the first place.

The Court described this as a “bedrock principle of parliamentary sovereignty”: rights, obligations, interests, and privileges created by ordinary legislation may be altered or removed by the same means. In other words, a legislature cannot fetter its own discretion and cannot bind its successors. Ordinary legislation does not entrench itself. What one legislature enacts by ordinary majority, a later one may amend or repeal by the same means.

On the Court’s analysis, the applicants’ section 7 claim would have done precisely what the rule against fettering forbids. There is no constitutional right to a bike lane. The decision to install lanes on Bloor, University, and Yonge was therefore an ordinary policy choice effected by ordinary legislation, not a constitutional commitment. Treating section 7 as preventing their removal would convert that policy choice into an entrenched entitlement. The Constitution provides mechanisms for entrenchment. A Highway Traffic Act amendment is not one of them.

“There is no Charter right to bicycle lanes”

The application judge accepted the applicants’ characterization that they were not asserting a positive constitutional right to bicycle lanes, but only seeking to prevent the government from removing an existing road-safety feature. The Court of Appeal rejected that distinction, holding that an order prohibiting the removal of bicycle lanes could only be understood as recognizing a constitutional entitlement to those lanes. If the Charter prevents the state from removing the lanes because of the protection they offer, then the Charter is functionally being used to guarantee that infrastructure.

Huscroft J.A. ruled in clear terms: “There is no Charter right to bicycle lanes.” Since the bike lanes’ existence depends on legislation alone and not on any Charter right, their removal does not amount to a deprivation of life or security of the person within the meaning of section 7.

What the Court of Appeal did not decide

The Court of Appeal declined to take up a threshold question that the Supreme Court has not yet settled: whether section 7 reaches state action outside the administration of justice at all. Rather than resolve that question on this appeal, the Court of Appeal assumed in the applicants’ favour that section 7 could extend that far, and held that it was not engaged on these facts in any event.

The question therefore remains unresolved. Last year, a 2-1 majority of the Court of Appeal read section 7 more broadly in Drover. So did a unanimous panel of the Court of Appeal in Mathur, the climate target case, in 2024. The Supreme Court granted leave in Drover and will likely have to settle the point there. It denied leave in Mathur.

The Court of Appeal’s arbitrariness analysis

Even if section 7 could apply outside the administration of justice context, the Court of Appeal held that the impugned legislation still did not violate the principles of fundamental justice.

The Court emphasized that the arbitrariness inquiry is “not easily met”: it concerns the absence of any rational connection between the law’s purpose and the means chosen to achieve it, not whether the legislation is optimal, whether experts support it, or whether the court finds it likely to succeed over time.

Here, the law’s purpose was reducing traffic congestion. The Court of Appeal held that common sense established a rational connection between that objective and increasing the number of lanes available for motor vehicles by removing bicycle lanes.

The application judge had erred in focusing on expert evidence predicting that removing bike lanes might worsen congestion over the long term because of induced demand. That evidence went to the law’s efficacy, but not to the issue of rational connection. A policy may ultimately fail or prove ineffective, but that does not make it arbitrary in the constitutional sense. Nor are governments constitutionally bound to legislate in accordance with expert opinion, even where “some or even many advisors, experts, and citizens predict that it will not work”.

The Court of Appeal’s gross disproportionality analysis

The Court of Appeal took the same approach to gross disproportionality, a doctrine it held is reserved for “extreme cases” in which the seriousness of the deprivation is “totally out of sync” with the objective. The standard is deliberately stringent, designed to preserve broad latitude for legislative action.

Here, the province’s bike lane legislation did not come close. Removing bicycle lanes was “mere traffic regulation” and not comparable to prior cases in which gross disproportionality was found. The application judge had erred by trivializing the legislation’s purpose – reducing it to saving motorists “a few minutes of travel time” – while overstating the negative effects by treating injuries and deaths as the inevitable consequence of lane removal.

The Court of Appeal added that submissions about disproportionate effects on lower-income individuals, disabled individuals, or children might be relevant to a policy critique, but they were insufficient to establish gross disproportionality under section 7 of the Charter.

What does the decision mean for future section 7 claims?

The decision is likely to be important beyond the bicycle-lane context. It signals that section 7 claims challenging the withdrawal, repeal, or modification of statutory schemes will face a significant hurdle where the underlying benefit was not constitutionally required in the first place. That issue may become especially important as courts continue to grapple with section 7 claims arising from regulatory, environmental, infrastructure, and social-policy decisions outside the traditional administration of justice context — as the Supreme Court will likely do when it hears Drover.