You’ll surely read a lot in the
NP
’s
about the Wednesday ruling by Ontario Superior Court Justice Paul Schabas which found that the province’s plans to remove exclusive bike lanes on some key Toronto arteries is contrary to the Charter of Rights. Legal conservatives will argue that this decision, if upheld on appeal, amounts to an arrogation of further new powers by a Canadian judiciary that has already been running amok for 50 years. They will characterize it as a matter of scribbling a “right to bike lanes” into the Charter.
The lefty/progressive retort is, well,
right there in the decision itself
. Pshaw, there’s no question of creating a free-standing or universal “right to bike lanes.” What happened was that cycling advocates approached a court with evidence that ripping out the Toronto bike lanes was likely to create extra risk of death or injury for people engaged in (and possibly dependent on) cycling, which is a wholly legal and approved activity.
Our Constitution recognizes that elected authorities can do this kind of thing, but it obviously engages Charter guarantees of life and personal security, so a sort of administrative due process applies. Such a decision must be founded on evidence, and cannot be “arbitrary.”
And who decides what’s arbitrary? Why, judges, of course. Justice Schabas is not afraid to comb over the record of internal government decision-making on the bike lanes and make himself the decider of public policy. The stated goal of the bike-lane removal was to reduce automobile traffic congestion in the relevant areas of Toronto, but the government’s own evidence that “ripping out” the lanes would have that effect is sketchy and anecdotal, in the judge’s view. The cycling lobby, on the other hand, came very well prepared with data, surely seasoned with impressive-looking charts and tables gathered from the four corners of the urbanist universe.
For all I know (or care), Justice Schabas is objectively correct: I might very well reach the same factual conclusion that he did if provided with the same PowerPoints. Who would stake their life on the proposition that the Ford government, or any government, can be blindly trusted to act on nothing but rational evidence and articulable motives?
The issue here is that the Charter was originally interpreted as only inhibiting the state in a “negative” way, as forbidding certain unjust actions, rather than actively imposing “positive” political obligations on governments (ones that might have price tags). But Canadian courts have wobbled occasionally, gradually making ever-wider exceptions to
between positive and negative liberty, and Schabas has voraciously corralled all of these exceptions (
Chaoulli
!
Burns
!
PHS
!) to justify his own ruling. He has, inescapably, created a Charter right to a small set of
particular
, existing bike lanes: that’s just the literal effect of the judgment, subject to further appeals to other courts.
Now, if you’re one of those trendy “abundance agenda” liberals, or a “techno-optimist” retro-libertarian, or perhaps even just a prime minister who got elected on a promise to build lots of infrastructure in an old-school heroic-age-of-engineering way, the Schabas ruling is bound to make you queasy. It is not only a Magna Carta for the endless legal delays to construction which already torment the English-speaking world; it creates the possibility that anything a government
does
succeed in building or providing may become effectively immovable, protected indefinitely like some endangered vole. If you are tempted to seek reassurance, Justice Schabas tries to provide it in paragraph 19 of his decision.
“This decision does not open the floodgates to Charter challenges of traffic decisions. Most road and traffic decisions are well-grounded in data and safety concerns, as one would expect, and are unlikely to be challenged as arbitrary. In any event, fear of opening the floodgates to such challenges is not in law a basis for denying individuals their Charter rights. Rights claims are not denied because others may make a similar claim or because it is administratively inconvenient to comply with the Charter.”
Readers will immediately recognize a troublingly familiar form of liberal argumentation: “Don’t worry, X won’t happen, unless it does, which would actually be a fine thing.” And there is surely an added dollop of toothsome irony in that second sentence.
The judge has just ruled in favour of a lobby group for cyclists — i.e., people who couldn’t hold a café conversation for 11 minutes without mentioning how our civilization is irrationally consecrated to the automobile as a consequence of a century-plus of totally daft urban-planning decisions. “Most road and traffic decisions are well-grounded in data and safety concerns” is a sentence you would expect to find in a
defence
of the car-centric concrete-covered world that so disgusts bike advocates (the more radical ones, anyway).
The essentially ideological character of this paragraph isn’t very well disguised, and if a judge wishes to make forecasts about the effects of an obviously novel application of the law, well, who can stop him? 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. (
Just ask the Longest Ballot Committee!
) This is a fundamental reason our Constitution still incorporates a principle of
parliamentary
supremacy: it is not even about democracy, well-liked though democracy is, so much as it is about having ultimate decision power loosely yoked to accountability.
National Post
