Out of Its Lane? Ontario Court Creates Constitutional Right to a Bike Lane

In Cycle Toronto et al. v. Attorney General of Ontario et al.,^[1] the Superior Court of Justice struck down a provision of the Highway Traffic Act^[2] providing for the removal of bike lanes on Yonge St., University Ave., and Bloor St. between the Bloor Viaduct and Resurrection Road in Etobicoke (the “Provision”) under section 7 of the Canadian Charter of Rights and Freedoms.^[3]

Justice Schabas remarked that “[f]or some, the connection between bicycle lanes and the Charter may be surprising.”^[4] It should be.

Expansion of Section 7 Beyond the Administration of Justice

Cycle Toronto represents the most recent and dramatic expansion of section 7’s guarantee beyond the realm of the administration of justice. In enacting the Provision to amend the Highway Traffic Act, the state was not taking action to deprive individuals of the right to life, liberty or security of the person in the context of the criminal law or any analogous situation. Indeed, the case had nothing to do with any individual’s interaction with even the broadest conception of the justice system or its administration. The government was changing state-owned infrastructure to remove bike lanes on provincial roads in Toronto.

A brief tour of section 7, its place in the Charter, and the jurisprudence may be helpful. Section 7 states that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Section 7 is one of eight Legal Rights in the Charter. The guarantees of life, liberty and security of the person are followed by a set of provisions (sections 8-14), which are mainly concerned with criminal and penal proceedings. These include: the right to be secure against unreasonable search and seizure (section 8), the right not to be arbitrarily detained or imprisoned (section 9), rights upon arrest or detention (section 10), rights of individuals charged with an offence (section 11), the right not to be subjected to cruel and unusual treatment or punishment (section 12), protection against self-incrimination (section 13) and the right to an interpreter for a party or witness in proceedings (section 14).^[5]

In the seminal Re B.C. Motor Vehicle Act reference in 1985, the Supreme Court held that the Legal Rights must be interpreted together and that the provisions in sections 8-14 address “specific deprivations of the ‘right’ to life, liberty and security of the person.” They “are designed to protect, in a specific manner and setting, the right to life, liberty and security of the person set forth in s. 7.”^[6]

The Supreme Court recently emphasized the importance of reading the Legal Rights contextually in Quebec (Attorney General) v. 9147-0732 Québec inc.^[7] Writing for a unanimous court, Justice Abella emphasized that section 7, together with the other Legal Rights in sections 8-14, are “essential elements of a system for the administration of justice” whose purpose is to “maintain the repute and integrity of our system of justice.”^[8]

In New Brunswick (Minister of Health and Community Services) v. G. (J.), Chief Justice Lamer, writing for six of the nine members of the Court, confirmed that “the restrictions on liberty and security of the person that section 7 is concerned with are those that occur as a result of an individual’s interaction with the justice system and its administration.”^[9] Although the administration of justice extends beyond “purely criminal or penal matters”, section 7’s guarantee offers protection from the “state’s conduct in the course of enforcing and securing compliance with the law.”^[10] Thus, section 7 has been successfully invoked in proceedings involving the interaction between individuals and the state outside the criminal law, such as child custody and wardship proceedings,^[11] human rights proceedings,^[12] and immigration proceedings involving detention and the possibility of deportation to an unsafe country.^[13]

On various occasions, certain Supreme Court justices have suggested that section 7 either does, can, or should extend beyond the administration of justice.^[14] In Gosselin v. Quebec (Attorney General),^[15] five justices of the Supreme Court acknowledged that the “dominant strand” of jurisprudence sees section 7’s purpose as guarding against deprivations of life, liberty and security of the person that occur as a result of an individual’s interaction with the justice system and its administration. However, they characterized section 7’s application to rights or interests wholly unconnected to the administration of justice as an “unanswered” question.^[16] Similarly, in 2017, a majority of the Supreme Court stated that the extent to which section 7 applies outside the administration of justice context “has yet to be settled by this Court.”^[17]

In Cycle Toronto, the Court did not consider section 7 in the context of the Legal Rights section of the Charter in any detail. The Court did not meaningfully engage with whether the proposed change to bike lanes engaged the interests that section 7 was designed to protect. The Court asserted briefly that section 7 is not limited to an individual’s interactions with the administration of justice, relying primarily on the majority decision of the Court of Appeal for Ontario in Drover v. Canada.^[18] In Drover, Miller J.A. wrote a forceful dissent that section 7, as a matter of principle and precedent, is limited to the administration of justice, endorsing the “dominant strand” of jurisprudence as binding.

The Court’s recognition of a constitutional right to bike lanes is perhaps the starkest example of the expansion of the section 7 guarantee. Cycle Toronto presents an opportunity to clarify the proper scope of section 7 and definitively address a question that the Supreme Court of Canada has characterized as unsettled.

The Creation of a Positive Right to a Bike Lane

Even cases that have suggested that section 7 may extend beyond the administration of justice have been clear that section 7 is fundamentally a negative right; it protects against state deprivations of life, liberty and security of the person. As the majority of the Supreme Court held in Gosselin, section 7 does not place a “positive obligation on the state to ensure that each person enjoys life, liberty or security of the person.”^[19]

In Cycle Toronto, Justice Schabas rejected the government’s argument that striking down the Provision would create a positive “baseline” of rights to bike lanes on Ontario roads.

The Court’s decision suggests that governments may be constitutionally fettered from making policy changes to Ontario roads based on a Legal Right designed to protect from state-imposed deprivations of life, liberty and security of the person. The problem with this reasoning is that it divorces section 7 from its context and potentially opens the door for judicial review of a wide array of policy changes by governments, including changes to state-owned infrastructure.

The Role of Personal Choice

Under section 7, there must be a sufficient causal connection between the law and the deprivation of life, liberty or security of the person. The test is sensitive to the context of the particular case. While the impugned law need not be the only or dominant cause, there must be a real, as opposed to speculative, link between the state action and the deprivation.

Lifestyle choices are not constitutionally protected. The Supreme Court has observed that “[a] society that extended constitutional protection to any and all such lifestyles” — such as smoking marihuana, having an “obsessive interest” in golf, or gambling — “would be ungovernable.”^[20]

One would have thought the same could be said about extending constitutional protection to the choice to ride a bike down Bloor Street. However, Justice Schabas concluded that the sufficient cause test was met on the record before him.

Justice Schabas relied on Canada (Attorney General) v. Bedford and rejected the government’s argument that cycling on the roads where the lanes were being removed is a voluntary choice.^[21] But Bedford was a very different case. In Bedford, the government criminalized measures meant to enhance the safety of sex workers, directly increasing their risk of harm.^[22] There was clear and direct state interference with the security of the person. In Cycle Toronto, the government changed state-owned infrastructure by removing bike lanes on provincial roads. By treating a change in provincial highways as a deprivation under section 7, the Court seems to have blurred the line between state-imposed harm and the mere loss of government benefits — an area that, until now, has been excluded from the purview of section 7.

Justice Schabas held that the evidence “clearly establishes” that removing the bike lanes would make roads less safe, increasing the risk of collisions, injuries, and deaths for cyclists and other road users.^[23] But the Court’s evaluation of the evidence was far from searching. For example, the applicants adduced evidence from a road safety expert, who relied on literature reviews showing that cycle tracks reduce the incidence and risk of cycling collisions.^[24] No consideration was given to the many other variables that one would need to control in order to assess the marginal effect on safety of the presence or absence of a bike lane on a particular road. For instance, both car drivers and bikers may change their routes or make other alternative choices because of the presence or absence of a bike lane on University Avenue — such as biking down St. George Street instead. However, Justice Schabas described the applicants’ evidence as “clear, compelling, and essentially uncontradicted.”^[25]

The Court relied on the submissions of interveners, who argued that the Provision will have a “serious and disproportionate impact” on certain groups, such as “low-income individuals who must ride bicycles… for their work.”^[26] The applicants’ road safety expert opined that “gig cyclist delivery workers” would likely continue to ride on the affected routes, even without bike lanes.^[27] Assuming that were true, the law is clear that “economic liberty” is not protected by section 7 of the Charter.^[28] And even if it were, the Provision does not deprive cyclists of the ability to bike for work. They can ride their bikes elsewhere.

The Principles of Fundamental Justice

Arbitrariness

Justice Schabas concluded that there was no connection between the Provision’s purpose and its effects, and it was therefore arbitrary.^[29] Justice Schabas found that the purpose of the Provision was to relieve congestion by removing bike lanes from main streets.^[30] He found that the evidence put forward by the applicants — and the advice given to Ontario on multiple occasions^[31] — indicated that the law would actually worsen congestion.^[32]

The Court criticized the government for failing to lead evidence about why the bike lanes on only some major streets were targeted.^[33] The government argued that the affected streets — Yonge, University, and Bloor — have subways under them, providing alternative transportation options. But there was no evidence that this influenced the government’s policy, and no explanation for why bike lanes on other streets that run atop subway lines were not targeted. However, it is important to recall that the arbitrariness test is not an invitation to second-guess government policy. To be arbitrary, there must truly be “no connection” between the effect of the law and its objectives.^[34]

Gross Disproportionality

Justice Schabas found the Provision’s potential harms — up to and including death — to be grossly disproportionate to its objective.^[35] But gross disproportionality applies only in extreme cases where “the seriousness of the deprivation is totally out of sync with the objective of the measure”.^[36] In Bedford, the Supreme Court gave the example of a law that imposes a life sentence for spitting on the sidewalk.^[37] The Court did not identify such a draconian impact. Roads are inherently risky. The evidence reviewed by the Court did not show a specific, marginal increase in risk on the streets affected by the Provision. Nor did it address whether there is heightened risk to a cyclist who, rather than biking to work down the University Avenue bike lane, chooses to take the quieter St. George Street.

The Court emphasized that low-income individuals who rely on cycling as their primary or sole means of transportation may be disproportionately affected by the Provision. Again, that may be true. But Cycle Toronto was not an equality rights case; it was a case about life, liberty and security of the person. The Court did not explain how the evidence demonstrated that the impact of the Provision on low-income (or any) cyclists was grossly disproportionate relative to its objective within the standard set by the case law.

Key Takeaways

• In recognizing a constitutional right to bike lanes, the Court significantly expanded the section 7 guarantee of the right to life, liberty and the security of the person beyond the context of individuals’ interaction with the justice system and its administration.
• While consistent with views expressed by some Supreme Court justices and some lower court decisions, this case is the most recent — and arguably the most radical — expansion of section 7’s protection beyond the realm of the administration of justice.
• The Court claimed that its decision did not recognize a positive right or baseline of government infrastructure. But striking down the removal of bike lanes on provincial roads seems equivalent to constitutionalizing the right to a bike lane.
• The Court’s decision that the removal of bike lanes was contrary to the principles of fundamental justice suggests a heavy onus on government to justify policy changes to state-owned infrastructure.
• The government plans to appeal the decision.^[38]

^[1] Cycle Toronto et al. v. Attorney General of Ontario et al., 2025 ONSC 4397 [“Cycle Toronto 2025”].

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

^[3] Cycle Toronto 2025 at para 12.

^[4] Cycle Toronto 2025 at para 136.

^[5] Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, at p. 1171 [“Reference re the Criminal Code”].

^[6] Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 486 [“Motor Vehicle Act”] (emphasis added).

^[7] Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32 [“9147-0732 Québec inc.”].

^[8] 9147-0732 Québec inc. at paras 126-127.

^[9] New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 SCR 46 at para 65 [“G. (J.)”].

^[10] G. (J.) at para 65; see also Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, at paras 46, 58, and 66 [“Blencoe”].

^[11] See e.g., G. (J.); and B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 SCR 315 [“”Children’s Aid Society”].

^[12] See e.g., Blencoe.

^[13] See Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 [“Charkaoui”].

^[14] See e.g. Chaoulli v. Quebec (Attorney General), 2005 SCC 35 at paras 119-123 (McLachlin C.J. and Major J., concurring); see also paras 195-199 (Binnie and LeBel JJ., dissenting) in which the dissenting justices cite several cases where the Supreme Court extended section 7 beyond the administration of justice, including in Blenco and Children’s Aid Society [“Chaoulli”]. See also Gosselin at paras 78-83.

^[15] Gosselin v. Québec (Attorney General), 2002 SCC 84 [“Gosselin”].

^[16] Gosselin at para 80.

^[17] Association of Justice Counsel v. Canada (Attorney General), [2017] 2 S.C.R. 456, at para 49 [“Association of Justice Counsel”]. Cycle Toronto is not the first case to invoke section 7 in situations wholly unconnected to the administration of justice. In Mathur v. Ontario, 2024 ONCA 762 [“Mathur”], the Court of Appeal for Ontario suggested that Ontario government’s greenhouse gas emission reduction target could violate life and security of the person under section 7 [“Mathur”]. In Drover v. Canada, 2025 ONCA 468 [“Drover”], a majority of the Court (Miller J.A. dissenting) held that the former statutory requirement for federal election returning officers to live in the ridings they administer infringed section 7.

^[18] Cycle Toronto 2025 at para 138.

^[19] Gosselin at para 81.

^[20] R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, at para 86 [“Malmo-Levine”].

^[21] Cycle Toronto 2025 at para 173.

^[22] Canada (Attorney General) v. Bedford, 2013 SCC 72, at paras 63-65 [“Bedford”].

^[23] Cycle Toronto 2025 at para 165.

^[24] Cycle Toronto 2025 at para 76.

^[25] Cycle Toronto 2025 at para 81.

^[26] Cycle Toronto 2025 at para 15.

^[27] Cycle Toronto 2025 at para 77.

^[28] Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 at p. 1103 [“Irwin Toy”].

^[29] Cycle Toronto 2025 at para 201.

^[30] Cycle Toronto 2025 at para 188.

^[31] Cycle Toronto 2025 at para 195.

^[32] Cycle Toronto 2025 at para 189.

^[33] Cycle Toronto 2025 at para 197.

^[34] Bedford at para 98.

^[35] Cycle Toronto 2025 at para 205.

^[36] Bedford at para 120; see also Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, at para 133 [“PHS”]; Malmo-Levine at paras 159-160, 169; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, at para 47 [“Suresh”].

^[37] Bedford at para 120, as referenced in Cycle Toronto 2025 at para 202.

^[38] Julia Alevato, “Ontario court strikes down Ford government's plan to remove Toronto bike lanes,” CBC News, July 30, 2025.