In the lead-up to Minister of Transportation and Economic Corridors Devin Dreeshen introducing legislation in the fall to allow the provincial government to rip up bike lanes in Calgary and Edmonton, all eyes were on Cycle Toronto’s legal battle with the Ontario government.

Last year, Cycle Toronto won a controversial court decision to halt Ontario’s Bill 212, which gave the province the right to rip up municipal infrastructure.

Last week, the Ontario Court of Appeal threw that decision out, establishing that the province can add or remove any roadway at its prerogative.

And, in my humble opinion, the Ontario Court of Appeal got it right.

When overturning a previous ruling by Ontario Superior Court Judge Paul Schabas, the appeal court decision essentially concluded that the courts are not the place to police the ignorance of politicians – that is what elections are for.

 In Judge Schabas’ ruling on the constitutionality of Bill 212 (the Ontario Government’s Reducing Gridlock, Saving You Time Act, 2024) that sought to give the province power to remove infrastructure that is owned, operated, and within the complete jurisdiction of the City of Toronto, he ruled that removing the 19 km of bike lanes arbitrarily increased the risk to cyclists’ safety.

Schabas concluded that the Ontario government was acting in bad faith by purposely misleading the public, denying the advice of its own administration that warned that Bill 212 would result in more people – specifically children – being injured or killed while cycling, and that the stated aims of “reducing congestion” were a pipe dream supported by zero evidence.

Judge Schabas’ ruling was an indictment on whether Premier Ford and the Minister of Infrastructure were deliberately ignoring the evidence, increasing the risks to all road users (including people in cars), and doing so in an arbitrary manner. The focus on whether the legislation was arbitrary ended up being a key to Judge Schabas decision – he found that the legislation was so poorly reasoned that the reasonable limits on Charter rights found in Sec. 1 of the Charter could not be used to justify the increased risk to cyclists lives that would result from Bill 212, thereby violating the Sec. 7 Charter right to Life, Liberty and Security of Person

You should read Schabas’ decision; it is the voice of a judge clearly exasperated by the ignorance of the Ontario government.

I feel for him. It can be extremely challenging and disheartening to see a government so clearly endanger its citizens through ignorance and contempt. Schabas’ reasoning is grounded in care for the lives affected by this policy decision. He values evidence over politics.

He can see the outcomes of this decision, and the weight of the people whose lives are clearly being devalued by the Ontario government.

And, Judge Schabas chose to defend them.

Which is why it is too bad that in the end, that’s not his job.

No evidence bike lanes cause traffic congestion

Michael Longfield, executive director of Cycle Toronto, which brought the original court challenge, was not trying to establish a “right to bike lanes,” but rather was challenging whether a government could act against the interests of its citizens by denying clear evidence of harm as a result of the decision. Longfield stated the appeal court’s decision is a step back for evidence-based decision-making.

Part of the complexity of this whole debacle was the sheer amount of evidence available to Judge Schabas that clearly stated that bike lanes do not cause traffic congestion, that they make roads exceptionally safer for all road users.

Let’s say that one more time for posterity: There is no evidence that bike lanes cause traffic congestion, and there is no evidence that removing them will alleviate traffic congestion.

Yet, both Alberta and Ontario’s Ministers of Transportation claimed that the appeal court’s decision was a win for “common sense.” Ontario Minister of Transportation Prabmeet Sakaria praised the division of powers between the legislature and the courts.

Meanwhile, Alberta Minister of Transportation Devin Dreeshen simply said that “Albertans expect their government to make transportation decisions based on what works for [their] communities.” He followed by saying that “For too long, transportation decisions have been driven by ideology rather than common sense.”

It is to this point that I fundamentally disagree.

Evidence is not ideology. It was this level of ignorance of facts that appeared to drive Judge Schabas’ exasperated court decision. For some reason, Minister Dreeshen is conflating “common sense” with ignoring the evidence and advice of your own government experts.

Nonetheless, ignorance and malice are not unconstitutional. Making legislative decisions that, by proxy, increase the risk of injury and death to citizens is not unconstitutional.

It’s just dumb. But dumb is not illegal.

Political decisions are accountable to the citizens

As the Appeal Court stated: “Lest there be any doubt: in formulating policy or legislating, neither the government nor the legislature is under any obligation to accept policy advice, whether from bureaucrats, experts, or members of the public. The choices they make are the stuff of politics. We are governed by those whom we elect and they are accountable to the people for the choices they make, not to the courts.”

For every person injured or killed in an avoidable collision on a road that once had separated and protected cycling infrastructure, they are the casualty of a political choice.

The fundamental principle that underpins the political choices of legislatures is that no decision by any legislature can bind its successors, for better or for worse. Every elected government is within its full rights to undo the decisions of a past elected government.

This is the principle that has allowed governments to undo legislation that is deeply unjust. But it’s also the principle that protects deeply unjust legislation.

It must have been exhausting for Judge Schabas to preside over this case last year, bearing witness to the ignorance of elected officials who denied the evidence that told them their decisions were arbitrary, without merit, and would place all road users at higher risk.

I feel for him. Contrary to the words of Minister Devin Dreeshen, it appears common sense was absent when the evidence was presented. I fear that it will be again in the fall.

Nonetheless, the appeals court got it right.

It is not the court’s job to police the ignorance of politicians.

It is ours.