It is not only Americans who are arguing these days over who is in charge – duly elected politicians or unelected, appointed judges?
Ontario is facing its own controversy over who sets policy, the democratically elected premier or an appointed judge?
The issue is bike lanes. Ontario Superior Court Judge Paul Schabas ruled that the Ontario government does not have the authority to remove or relocate bike lanes on three busy Toronto roadways, Bloor Street, Yonge Street and University Avenue.
By way of background, the City of Toronto has been busily expanding bike lanes throughout its road system for several years. This has created a deep divide between car drivers and cyclists that is only intensifying as traffic congestion gets worse.
The issue was hot enough to become part of Ontario Premier Doug Ford’s election platform earlier this year. He won a substantial majority and true to his word, passed legislation giving the province the authority to approve, remove or relocate bike lanes.
It should be noted that under Canada’s constitution, municipalities are considered “creatures of the province,” meaning that provincial authority trumps municipal power. It should also be noted that Nova Scotia passed similar legislation, and Alberta is considering the move.
Cycling advocates went ballistic, launching a constitutional challenge under the Charter of Rights, claiming that the government was infringing on their rights to life and security of the person.
Judge Schabas came down on the side of cyclists. He argued that while “the government has the right to make decisions about roads and traffic infrastructure…where the government takes action that puts people at risk, and does so arbitrarily, its actions may be restrained by the Charter.”
“Arbitrary” is a pretty loaded word to level at a government that promised to fix the problem during an election, won a majority and then did what was promised by passing legislation to enable it to act. We are not dealing with one of President Donald Trump’s arbitrary “executive orders.”
The judge said that the province was not able to prove that the bike lanes were causing more traffic congestion – he has obviously not spoken to many Toronto drivers lately – and that removing them would jeopardize the safety of cyclists who would no longer be able to access the protected lanes.
Somehow, the fact that the government supports bike lanes – just not on main thoroughfares – and was going to relocate the three controversial lanes to safer side streets did not seem to register with the judge.
Not surprisingly, Ford also went ballistic over the court’s decision, calling it “the most ridiculous” decision he had ever seen. “You talk about the Charter? It’s trampling on the democratic rights of Ontarians that elected a government, just a few months before…. that said they’re going to move, not eliminate…bike lanes from the main arterial roads.”
“I believe and the people of Ontario believe that they elect parties to make decisions – they don’t elect judges,” he said.
It is an important question of accountability. National Post columnist Colby Cosh put it this way: “When some elected politician implements a bad idea confidently, and it goes wrong, he is at risk of un-election. When a judge makes one, he is not likely to even be criticized by name. This is a fundamental reason our Constitution still incorporates a principle of parliamentary supremacy.”
So where does all this leave the three controversial bike lanes?
The province has said it will appeal to the Court of Appeal. If Ford loses the argument there, he still has the option to use the “notwithstanding” clause, a constitutional provision that allows a government to essentially overrule the courts under certain circumstances.
Ford has not shied away from doing so in the past and left it open as to whether he would use it again.
This saga is not yet over.
Janet Ecker is a former Ontario Finance Minister, Minister of Education, Minister of Community and Social Services and Government House Leader in the governments of Premier Mike Harris and Premier Ernie Eves. After her political career, she served as the founding CEO of the Toronto Financial Services Alliance, a public-private partnership dedicated to building Toronto region into an international financial centre. She currently sits on a number of corporate and non-profit boards, agencies and advisory committees.
Ms. Ecker received the Order of Canada for her public service contributions and was recognized as one of the “Most Influential People in the World’s Financial Centres” by Financial Centres International. She also received a “Canada’s Most Powerful Women: Top 100 Award” from the Women’s Executive Network and the Richard Ivey School of Business, among other awards. She is also one of the founders of Equal Voice, a national, multi-partisan organization working to elect more women.
