‘Judges may be tempted’: Excerpts from remarkable appeal ruling in bike lanes case

The Ontario Court of Appeal ruled in favour of the Doug Ford government on Friday in Toronto’s long-running bike lane saga. In a 3-0 decision, the appeal court found that a judge who had blocked the planned removal of three bike lanes on constitutional grounds had “erred in law,” essentially saying he went farther than judges should go.

“(The lower court 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.”

“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.”

“Now, courts learn a great deal about a matter in the course of judicial review proceedings, and judges may be tempted to comment on matters of policy. The temptation to do so may be great; judges may suppose that they have much to offer to public policy debate. But the temptation must be resisted. It is not just that courts have no expertise in policy making – no expertise in making the sorts of polycentric decisions that legislatures make routinely. It is illegitimate for courts to involve themselves in matters of legislative policy. Policy is for politics. Whether courts think legislation is wise or unwise, is irrelevant so far as its constitutionality is concerned, and constitutionality is the only question with which courts are legitimately concerned.”

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