On April 22, 2025, Justice Schabas of the Ontario Superior Court granted an interim injunction restraining section 195.6 of the Ontario Provincial Government’s recently amended Highway Traffic Act, SRO 1990 c. H.8 (The “HTA”) from being implemented in the decision of Cycle Toronto et al v Attorney General of Ontario et al, 2025 ONSC 2424 (CanLII) (“Cycle Toronto”). Section 195.6 directed, subject to Ministerial exceptions or modifications, that bicycle lanes on Bloor Street, University Avenue, and Yonge Street in the City of Toronto be removed and restored for use by motor vehicles:

Existing lanes in the City of Toronto, direction to remove

195.6 Subject to any prescribed exemptions or modifications, the Minister shall remove the bicycle lanes located on Bloor Street, University Avenue and Yonge Street, in the City of Toronto, and any related features, and restore the lanes for use by motor vehicle traffic.

The applicants, Cycle Toronto, Eva Stanger-Ross, and Narada Kiondo (collectively, the “Applicants”) challenged the implementation of section 195.6 of the HTA on the basis that it unjustifiably infringes section 7 of the Charter of Rights and Freedoms (the “Charter”) by exposing cyclists to increased risk of harm, and that the law itself was arbitrary and/or grossly disproportionate.

Following Justice Schabas’ granting of the interim injunction in favour of the Applicants it is understandably easy to be drawn into interpreting this as a signal that there may be a recognized Charter right to having access to a bike lane. After all, why else would an injunction have been granted if not for the prospect of the Applicants succeeding in their challenge? That said, such a perspective on the ruling must be tempered with a greater understanding of the complete test for a successful section 7 Charter challenge and the subtle nuances of how section 7 Charter rights operate.

Section 7 of the Charter provides that everyone has the right to life, liberty and security of the person:

Life, liberty and security of person

7 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.

To successfully challenge a law for infringing section 7 of the Charter, an applicant must meet a two-part test: 1) the law must infringe an individual’s right to life, liberty, and/or security of the person; and 2) any infringement of the right must be done in accordance with the principles of fundamental justice, being the basic values of Canada’s constitutional order. When it comes to challenging a law itself for infringing section 7 Charter rights, to quote the Supreme Court of Canada, the analysis is concerned with capturing “inherently bad laws” (Bedford 2013 SCC 72 at para. 96).

An inherently bad law for the purposes of a section 7 challenge is not one that is subjectively bad or even morally repugnant to certain individuals or groups of individuals. An inherently bad law is one characterized by an incongruence between its purpose or goal and the method used to achieve it, such that it is fundamentally flawed for being arbitrary, grossly disproportionate, or overly broad, and therefore inherently dysfunctional.

An arbitrary law is one where there is no direct connection between a law’s purpose and the impugned effect it has on an individual’s section 7 protected interests. Put another way, if the practical effect of a law is not achieved as its stated goal (or purpose), then the law is arbitrary for not actually accomplishing its reason for being.

A grossly disproportionate law is one where the effect is grossly out of line with its purpose. Unlike an arbitrary law, a grossly disproportionate law accomplishes its stated purpose, it simply does so in a manner that is not commensurate with its goal. Generally, a grossly disproportionate effect is easy to understand, as it is the balancing of a law’s goal against the method used to achieve it and the severity of its effect on section 7 Charter interests.

Finally, an overly broad law is one where the law’s effect extends beyond its purpose, capturing conduct or otherwise affecting individuals in a manner disconnected from its objective. Similarly to a grossly disproportionate law, an overly broad law accomplishes its stated purpose, it simply goes too far such that it effects the section 7 Charter interests of individuals who were never meant to be within its reach.

In each instance, the focus remains on the law’s practical effect in relation to its stated purpose. Herein lies a key subtlety: the reason for focusing on the effect of the law is partially because section 7 Charter protected interests rarely give rise to specific legal entitlements owed by the government, as opposed to operating as a bulwark against the government’s illegal infringement of generally protected interests by enacting dysfunctional laws.

With this understanding, the crux of the issue presented by section 195.6 of the HTA can be better understood. The section 7 Charter challenge, by its very nature, is not as simple as claiming a positive right (or legal entitlement) to having access to a bike lane; it is a challenge against the legal mechanism used to remove a bike lane because doing so risks exposing individuals to increased harm infringing the right to life and security of the person, and the manner in which it was implemented was inherently dysfunctional for being arbitrary or grossly disproportionate.

It does not necessarily follow, and I posit that it would be incredibly unlikely, that the Ontario Superior Court will find access to a bike lane is a positive right and recognized protected interest under section 7 of the Charter. Accounting for the full section 7 analysis in these circumstances suggests it is significantly more likely the Court will find the legal method used (being an absolute removal of a bike lane) risks increasing harm to cyclists infringing section 7 right to life and security of the person, and therefore one of the Ontario legislature’s professed reasons for the amended law as a means to make sure “… everyone is safe on the roads” is disconnected from the law’s purpose such that it may be arbitrary or grossly disproportionate (Cycle Toronto, paras 24-25). If that is sufficient to find the law itself is unconstitutional remains to be seen.

That stated, a judicial decision on the Charter challenge has not yet been released and there has not been a fulsome analysis of the applicable legal tests and evidentiary record. A takeaway at this juncture for legislative bodies, be they provincial or municipal, is to not lose sight of the need to always make sure a law’s stated purpose aligns with its practical effects. At a time when local governments are increasingly having to grapple with significant public issues impacting an individual’s section 7 Charter rights, it is more important than ever to remain vigilant that the legal actions taken are rationally connected to their practical effects.