Bike Lanes and the Charter: Who Really Decides?

Well, that's exactly what the, uh, the Court of Appeal warned the courts about.

And I...

Another one of my favorite, uh, zingers, if you will, from the Court of Appeal was, "Policy is for politics." So that ultimately...

This is, you know, this, this case really is, um, y- you know, becoming a, I think a, a, the, the, a complete shift in the way courts have been veering into the realm of policy, um, uh, and, and deciding what is good government policy and what is bad government policy, um, based on charter arguments.

Um, and the courts very harshly, and I will say harshly in terms of the, the language, uh, of the Court of Appeal, and the Court of Appeal is usually quite, you know, polite to, uh, the trial level.

And in, in this particular instance, there, it was not, uh, so.

The, the, uh, Court of Appeal, uh, I would say, landed like a thunderclap in Canadian constitutional law this summer.

Um, and what sounds like a simple statement, that there's no constitutional right to bike lanes, is actually about something much bigger, about what the Constitution protects, what courts are allowed to do, and where the line falls between judicial review and legislative sovereignty.

In other words, who's in charge of policy? Is it the courts or is it the legislature? And in Canada, our Court of Appeal has said, in no uncertain terms, it's the legislature.

Yeah.

And, you know, that, that's a very important aspect to this decision.

The other important aspect, of course, is delineating the scope of Section 7.

And, uh, you know, one of my favorite, uh, lines, uh, uh, from this decision is basically that, uh, you know, Section 7 is concerned with the depriva- deprivation of life, liberty, and security of the person caused by the coercive power of the state.

And we actually talked about this, uh, in a previous, uh, podcast, um, and I think it was on the injunction that, uh, uh, the lower court had given, uh, with respect to preventing the government from moo- removing, uh, the bike lanes.

Since when does the charter guarantee that government must spend money to pr- protect somebodies, uh, from injury or harm, uh, such as putting in bike lanes? And, and, and I think the court absolutely got that right, that there's no positive duty on government to spend money where somebody believes that, uh, some form of safety measure on the roadway will protect them from injury.

Yeah.

I mean, the Court of Appeal's decision was released on August the 14th, and I think it opens...

You know, picking up on your Section 7 analysis, and we've talked quite a bit on this podcast about other Section 7 cases, um, the camping cases or the, the, the-

Right

... safe injection-

That's another one

... safe injec- or the injection site safe injec- whatever you wanna call them, the injection site cases.

[laughs] And, you know, this, this c- the Court of Appeal here starts off with probably a understated, frankly, demolition of recent Canadian, uh, jurisprudence in this, in this, uh, in this area saying, quote, "Something has gone wrong." And, and that is really, really where the court's saying that the, the courts have to get back into their constitutionally mandated lane in this country, which is not to create policy, uh, but, uh, it, to enforce the constitutionality of it.

So the...

You know, this isn't, this, that wasn't, that was very harsh language from, uh, Justice Huscroft in that...