In the weeks of the election period, Canadian courts were busy preventing any legislation of controversy from taking effect — and they went relatively unnoticed. On March 28, the Ontario Superior Court of Justice
the Ontario government from banning supervised consumption sites near schools and daycares. It struck again on April 22,
the Ontario government from removing Toronto’s bike lanes.
Days later, on April 24, the Quebec Superior Court
the province’s planned mega-tuition hike for out-of-province students.
In the case of Toronto’s major bike lanes — on Bloor Street, Yonge Street and University Avenue — Ontario Premier Doug Ford had, in theory, all the power he needed to remove them. Municipalities are creatures of the province, and traffic regulation is also a provincial domain; thus, provincial legislatures can override just about anything that a city council does, especially if related to roads. So, in November, Ford
the removal of the lanes, which were
constructed by city authorities (he was later re-elected premier, so clearly bike lane preservation wasn’t a priority for voters).
In December, cycling advocates launched a court challenge that, really, should have been laughed out of the room. They argued that the removal of bike lanes amounted to a violation of their Charter rights, specifically the Section 7 catch-all right to life, liberty and security.
It remains to be seen whether there is a Charter right that guarantees two per cent of the population the right to have specialty lanes built for their commuting pleasure — the trial process is still underway. In the meantime, Ontario’s Judge Paul Schabas, a Liberal
, has granted the cycling advocates an injunction to keep the lanes in place, because allowing their dismantling to go forward would impose an injunction-worthy risk of “irreparable harm” to Toronto’s cyclists.
“There is no evidence that the government has engaged in any planning as to how the bike lanes will be removed or what will replace them,” Schabas wrote in the decision. “The demolition and reconstruction will create its own impacts on traffic — both for cyclists and motor vehicles — and will likely result in considerable disturbance and congestion while that is taking place. Cyclists who continue to use these routes will be at risk of irreparable physical harm for which … the government will not provide any compensation in damages.”
And, just like that, a judge overruled a decision of the elected legislature, opting instead to take, temporarily, the zero-risk-tolerance advice of unelected government consultants. It’s at least good that Ford is
Schabas’ decision.
Ontario’s attempt to shut down certain drug consumption sites — specifically, those that were dangerously close to schools and daycares — went much the same way. Ford passed the
in December with the intention of making some basic, common-sense community safety improvements, acknowledging the reality that drug use sites are magnets for disorder, petty crime and sometimes-fatal gang violence.
The centres slated to be closed down have since been protected by a court injunction because an advocacy group has mounted a Charter challenge against Ford’s law. Invoked are the right to life, liberty and security, as well as the right to equality. The drug users are addicted, and thus disabled, and are thus members of a protected class.
Ontario had argued against an injunction, stating that the need to protect children from drug-related violence and disorder should allow the government to proceed in closing the centres, but Ontario Superior Court Justice John Callaghan, also a Liberal
, disagreed.
“The closing of (safe consumption sites) will cause significant harm across the province, including the loss of life…. Exempting the existing SCSs will have a substantial public benefit of preventing serious health risks and deaths which, in my view, outweighs the harm caused by the continued public disorder,” he wrote.
Quebec’s case of judicial usurpation was at least less life-or-death. There, the post-secondary minister raised tuition for students out-of-province as part of a broader effort to preserve a French-speaking milieu, particularly at Anglo-dominated McGill. The court felt that the provincial government’s decision to raise tuition in this way wasn’t supported by adequate evidence, and thus, the hike was cancelled. Instead of being defeated in the open political forum, Quebec’s new tuition scheme was cancelled on a technicality.
It was supposed to be the legislatures that review evidence and make policy — now, judges have decided to insert themselves into the role. Each judge in these cases complained of a lack of evidence that conveniently favoured keeping the old status quo in place, and ultimately found a reason to bulldoze a decision made by people who were elected to implement their policy agendas. Really, the judges doing this should be running to become MPPs, not sitting on the bench. But that’s Canada in the age of the Charter.
It wasn’t until just recently that Toronto’s cyclists could expect bike lanes down Bloor. It wasn’t until just recently that Ontario’s drug traffickers could find client hotspots at government-approved drug use facilities. Of course, there are trade-offs to making any change, but the slim chance of harm to a tiny minority of the population in both cases shouldn’t outweigh the greater interests of society at large.
It’s absurd that the Charter, dressed up by judicial artistry, can now hamstring a government into keeping even a simple road arrangement.
National Post
