Last year, we wrote about the Ontario Superior Court’s decision to grant an injunction preventing the Ontario provincial government from “reconfiguring” (in practice, removing) the bicycle lanes located on Bloor Street, University Avenue, Avenue Road, and Yonge Street in Toronto on the basis that the statute implementing these changes unjustifiably infringed section 7 of the Charter of Rights and Freedoms (the “Charter”).

On August 14, 2026, the Ontario Court of Appeal overturned that lower court decision, and, in a strong rebuke, stated as follows:

[3]          The application judge’s decision presents as a straightforward application of orthodox s. 7 principles. But the application of those principles, divorced from a broader understanding of the constitution of which they are a part, has led to a surprising outcome: the conclusion that routine legislation regulating road usage is unconstitutional.

[4]           Something has gone wrong.

[5]          The application judge erred in law in interpreting and applying s. 7. 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. Legislatures in the Westminster tradition are free to undo legislation by amending or repealing it as they see fit. That is the nature of democratic lawmaking in our constitutional order. Of course, all laws are subject to the Charter, but this does not preclude the amendment or repeal of legislation the legislature was under no constitutional obligation to have passed in the first place. Amendment or repeal of legislation may breach the Charter only if the breach can be established independent of the prior state of the law.

[6]          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. The Charter has nothing to say about whether bicycle lanes are a good or a bad idea – wise or unwise policy. 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.

[7]          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 legislature is free to legislate to remove a bicycle lane from a road – indeed, it may remove a road entirely – without implicating the Charter, and in particular, without implicating anyone’s rights under s. 7 of the Charter.

The lower court judge had found that removal of the bicycle lanes would make roads less safe for cyclists and for other users of the road, resulting in an increased likelihood of collisions, injuries, and death. On this basis, he concluded that the Province’s statute directing removal of the bicycle lanes engaged both the right to life and security of the person in s. 7 of the Charter. The lower court judge also found that removal of the bicycle lanes would not achieve the stated objective of the legislation – the alleviation of traffic congestion – but would in fact worsen it. This finding was based on expert evidence proffered by the respondents as well as advice the Province itself had received prior to proposing its legislation. The application judge concluded that there was therefore no connection between the purpose of the impugned provision and its true effects, and as a result the law was arbitrary. The Court of Appeal disagreed that this was arbitrary, stating as follows:

[60] Common sense provides the answer here: increasing the number of lanes available for motor vehicles must, at least to some extent, and for some period of time, be capable of contributing to reducing traffic congestion. The legislation is therefore rational. Assumptions grounded in everyday experience and common sense need not be established empirically: Gosselin v. Québec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429, at para. 56.

The lower court judge also concluded that the removal of the bicycle lanes would lead to injuries and deaths of cyclists which impacts were grossly disproportionate to the asserted benefit of the Province’s statute of “saving some drivers of cars a few minutes of travel time”. The lower court judge analogized these circumstances to those at hand in the Supreme Court of Canada’s decision in Canada (Attorney General) v. Bedford, 2013 SCC 72 (“Bedford“).

In Bedford, the Supreme Court of Canada found that Criminal Code sections prohibiting a “bawdy-house” disproportionately harmed the security of the person of the applicant sex workers in relation to the objective of preventing public nuisance. The Court stated that “the harms to [sex workers] identified by the courts below, such as being prevented from working in safer fixed indoor locations and from resorting to safe houses, are grossly disproportionate to the deterrence of community disruption. Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of [sex workers].”

Here, the Court of Appeal disagreed that the bicycle lane removals would rise to this same level of disproportion as in Bedford. The Court of Appeal first stated that the purpose of the legislation was broader than summarized by the lower court: the purpose was to reduce traffic congestion, which may in turn result in a wide range of positive effects. The Court of Appeal also found that the lower court had inflated the negative effects of removing the bicycle lanes, talking of injuries and deaths that will occur only if the bicyclists choose to ride on the roads that have no bicycle lanes – a situation that obtains on roads throughout the province. The Court of Appeal concluded that removing bicycle lanes “is in no way analogous to … exposing citizens to a high risk of being murdered to prevent nuisances. It is mere traffic regulation and cannot be described as ‘draconian'”.

Whether this decision will be further appealed to the Supreme Court of Canada, and be granted leave for such appeal, remains to be seen. We will be monitoring this case for further developments.

Josh Krusell

Josh Krusell is the Managing Partner of Litigation with SMS. He regularly acts on behalf of local governments in complex liability actions, construction and insurance claims, contractual and regulatory disputes, administrative proceedings, and land use and injunction-related matters.