Scott Stinson: Ontario Appeal Court hands Doug Ford a win, allows bike lane removals

The next time Doug Ford goes on one of his off-script rants about activist judges, he might want to include a qualifier.

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Not all judges, that is.

The Ontario Court of Appeal delivered a big win for the Ontario Premier on Friday, overturning a lower court decision that had blocked the province’s plan to rip up bike lanes on three downtown Toronto streets.

The initial court decision found that removing bike lanes amounted to a violation of the right to personal safety found in the Charter of Rights and Freedoms, but the Appeal Court, in a 3-0 decision, comprehensively dismissed that idea.

Among the many flaws it found in the initial court ruling, the Court of Appeal said that the province’s bike-lane removal was “the sort of decision legislatures make routinely without attracting any concerns about the constitutionality of their actions.”

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It also said that there is “no Charter right to bicycle lanes” and it gave this rather blunt declaration: “The bottom line is this: there is no constitutional obligation to regulate the use of roads in any particular manner — no constitutional obligation to build bicycle lanes or to retain any that have been built.” 

The Ford government was pleased on Friday with its victory.

“Today’s court ruling is a victory for common sense and for respecting the appropriate division of roles between duly elected legislatures and the courts,” said a statement from Prabmeet Sarkaria, the provincial Minister of Transportation. “As the three justices unanimously ruled today, ‘it is illegitimate for courts to involve themselves in matters of legislative policy.'”

The Appeal Court actually went a little further than that, writing in its decision that the lower court ruling “(subverted) a fundamental principle of our democratic constitutional order: a legislature cannot bind its successors. Legislatures in the Westminster tradition are free to undo legislation by amending or repealing it as they see fit.”

But while, legally speaking, this was a blowout win for Ford and his governing Progressive Conservatives, there are perfectly reasonable questions to be raised over whether removing a handful of bike lanes will help achieve the Premier’s goal of improving gridlock, or even if the province should weigh in on a matter that is usually left to municipalities. 

A moment for a caveat here: I support bike lanes. They help provide a safe, alternative means of transportation in areas that are increasingly jammed by vehicular traffic.

Cycle in places that have truly embraced them, as opposed to municipalities that paint a line on the side of the road and pat themselves on the back for their commitment to environmentalism, and you see how they can be transformative. Bike lanes, broadly speaking, are a net good.

But the place to stop Doug Ford from tearing up bike lanes was not in the courts, but at the ballot box. As the Appeal Court noted, provincial legislatures routinely pass laws that govern the use of the roads.

“The legislature is free to legislate to remove a bicycle lane from a road — indeed, it may remove a road entirely — without implicating the Charter,” the court found.

But now that Ford has his win over the judge that had blocked his bike-lane removals, and which had brought a public rebuke from the Premier, next comes the harder part of actually improving traffic flow in Toronto. Will the pending removal of bike lanes from Bloor Street, University Avenue and Yonge Street make any noticeable difference to the speed of traffic on those roads, or will more motor vehicles simply move into the space previously occupied by those lanes? (I am betting the latter.)

Ford has long been a pro-car politician, doing everything in his power to encourage people to drive — expanding highways, removing road tolls, dropping gas taxes and licence-plate fees — while never squaring that with the fact that all of those policies are naturally going to increase the number of cars and trucks on the road. Being pro-car is, from a policy sense, essentially the same as being pro-traffic.

But, again, that’s one for the voters, not the courts. Would it make more sense for the city of Toronto to determine whether, or where, it wants bike lanes on its streets? Sure. It seems like even more of a provincial overstep when its legislation prevents towns from installing bike lanes in places where vehicle traffic patterns aren’t even a concern. If a municipality wants to put a bike lane on Main Street to make it easier for residents to cycle to the market on weekends, why should Ford care?

But he does, and his party formed a majority government. Again. There are venues for the pro-bike forces to take that fight. But a court that invents a constitutional right to a bike lane isn’t the solution, either.  

National Post

sstinson@postmedia.com

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