AGAR: Toronto bike lanes ruling sheds light on legal system
· Toronto Sun
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Last August, the provincial government’s attempt to remove bike lanes on Bloor, University and Yonge streets was ruled unconstitutional by Superior Court Justice Paul Schabas.
Premier Doug Ford was angry and he railed against the judge, calling the decision to protect Toronto bike lanes as “the worst case of trampling on people’s rights I’ve ever, ever seen in the courts. Ever.”
Essentially, last week, the appeals court agreed with Ford. They were nicer about it — but not by much.
Reading the appeals court decision, it is easy to feel the original decision was a case of an activist judge taking the law into his own hands, as opposed to carefully and objectively interpreting the law.
Faith in the system is eroded when the system is subverted.
The appeal decision reads, “The application judge erred in law but his decision is wrong in a more profound sense, for it subverts a fundamental principle of our democratic constitutional order: a legislature cannot bind its successors.”
“The Charter does not require the legislature to establish bicycle lanes. Thus, the Ontario legislature is as free to establish bicycle lanes as it is to remove them or authorize their removal. These judgments are no business of the courts. The government is not constitutionally obligated to make policy decisions that accord with policy advice it receives from its advisors, nor is the legislature obligated to legislate in accordance with that advice — let alone the advice of academic experts.”
The appeal points out that not only can the legislature remove a bike lane, “indeed, it may remove a road entirely.”
A further rebuke of Justice Schabas is, “It is illegitimate for courts to involve themselves in matters of legislative policy. Policy is for politics.”
The appeals court called the decision made by Judge Schabas one that was made using an absurd hypothetical — their term, not mine.
Removing bicycle lanes, the appeals court wrote, “is in no way analogous to imposing a sentence of life imprisonment for spitting on the sidewalk or exposing citizens to a high risk of being murdered to prevent nuisances. It is mere traffic regulation and cannot be described as “draconian”.”
Should a judge a higher court finds using absurd hypotheticals while inserting himself into public decision making where he does not belong remain on the bench?
Lawyer Gavin Tighe of Gardiner, Roberts LLP says, “It is a very firm rebuke by the court, but the important part is there always are different views of legal questions. If there simply was a right or wrong answer the whole legal profession would be irrelevant.”
He does agree that the appeals court decision is correct that it is not the role of the court to craft policy but says Schabas cannot be removed.
Tighe says, “That’s the way the system evolves. It evolves from push and pull.”
The public, if they don’t like the policy of the legislature, can fire the politicians every four years if they so desire. The power is in the hands of the people.
But no one can fire a judge.
While in the bike lane case a higher court rebuked and overturned a judge, a case can go even higher to the Supreme Court.
The public has no power there, and power over the people, as opposed to power of the people, is a dangerous thing.