Out Of Its Lane? Ontario Court Creates Constitutional Right To A Bike Lane

In Cycle Toronto et al. v. Attorney General of Ontario et al.,¹ the Superior Court of Justice struck down a provision of the Highway Traffic Act² providing for the removal of bike lanes on Yonge St., University Ave., and Bloor St. between the Bloor Viaduct and Resurrection Road in Etobicoke (the "Provision") under section 7 of the Canadian Charter of Rights and Freedoms.³

Justice Schabas remarked that "[f]or some, the connection between bicycle lanes and the Charter may be surprising."⁴ It should be.

Expansion of Section 7 Beyond the Administration of Justice

Cycle Toronto represents the most recent and dramatic expansion of section 7's guarantee beyond the realm of the administration of justice. In enacting the Provision to amend the Highway Traffic Act, the state was not taking action to deprive individuals of the right to life, liberty or security of the person in the context of the criminal law or any analogous situation. Indeed, the case had nothing to dowith any individual's interaction with even the broadest conception of the justice system or its administration. The government was changing state-owned infrastructure to remove bike lanes on provincial roads in Toronto.

A brief tour of section 7, its place in the Charter, andthe jurisprudence may be helpful. Section 7 states that 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. Section 7 is one of eight Legal Rights in the Charter. The guarantees of life, liberty and security of the person are followed by a set of provisions (sections 8-14), which are mainly concerned with criminal and penal proceedings. These include: the right to be secure against unreasonable search and seizure (section 8), the right not to be arbitrarily detained or imprisoned (section 9), rights upon arrest or detention (section 10), rights of individuals charged with an offence (section 11), the right not to be subjected to cruel and unusual treatment or punishment (section 12), protection against self-incrimination (section 13) and the right to an interpreter for a party or witness in proceedings (section 14).⁵

In the seminal Re B.C. Motor Vehicle Act reference in 1985, the Supreme Court held that the Legal Rights must be interpreted together and that the provisions in sections 8-14 address "specific deprivations of the 'right' to life, liberty and security of the person." They "are designed to protect, in a specific manner and setting, the right to life, liberty and security of the person set forth in s. 7."⁶

The Supreme Court recently emphasized the importance of reading the Legal Rights contextually in Quebec (Attorney General) v. 9147-0732 Québec inc.⁷ Writing for a unanimous court, Justice Abella emphasized that section 7, together with the other Legal Rights in sections 8-14, are "essential elements of a system for the administration of justice" whose purpose is to "maintain the repute and integrity of our system of justice."⁸

In New Brunswick (Minister of Health and Community Services) v. G. (J.), Chief Justice Lamer, writing for six of the nine members of the Court, confirmed that "the restrictions on liberty and security of the person that section 7 is concerned with are those that occur as a result of an individual's interaction with the justice system and its administration."⁹ Although the administration of justice extends beyond "purely criminal or penal matters", section 7's guarantee offers protection from the "state's conduct in the course of enforcing and securing compliance with the law."¹⁰ Thus, section 7 has been successfully invoked in proceedings involving the interaction between individuals and the state outside the criminal law, such as child custody and wardship proceedings,¹¹ human rights proceedings,¹² and immigration proceedings involving detention and the possibility of deportation to an unsafe country.¹³

On various occasions, certain Supreme Court justices have suggested that section 7 either does, can, or should extend beyond the administration of justice.¹⁴ In Gosselin v. Quebec (Attorney General),¹⁵ five justices of...