Having sat down to look into whether this court challenge will hold any water, I am thoroughly pleased with how nice the Canadians are, where their federal government annotates their Charter of Rights and Freedoms (a component of the overall Canadian Constitution), and where the environmental law firm taking up this case kindly included the lawsuit in their online press release. Such reader conveniences would be luxurious here in California and the USA.

Anyway, to start, we need to summarize what Bill 212 – now enacted – changed in the Ontario laws. Reminder: IANAL. The Royal Assent PDF version is the finalized changes to the laws, and it indicates five Acts were amended, by way of five Schedules in the bill. Of those, only Schedule 4 from the bill is relevant, which modified the Highway Traffic Act by adding Section 195.2-195.18. As of this writing, the web version of the Highway Traffic Act has not been updated with the new Sections, but they should appear soon.

The salient details added by Bill 212 are:

• Section 195.3: Minister approval for bicycle lanes required
• Section 195.5: Authority to direct future bicycle lane removals
• Section 195.6: Bloor Street, University Avenue and Yonge Street bicycle lanes removed; auto lanes restored
• Section 195.9: reimbursement to municipality for initial construction and removal costs
• Section 195.14: no lawsuits by individuals for losses due to lane removals

The Ontario Legislature uses its exclusive “Local Works and Undertakings” power from the Canadian Constitution to write and amend the Highway Traffic Act, meaning that federal law cannot preempt the Legislature on the topic of public works wholly within the province. Overall, it seems that the drafters wrote in all the necessary details seemingly needed for a valid bill.

The lawsuit challenges the Ontario Attorney General and Minister for Transportation, requesting the provincial court:

• Determine that Section 195.6 violates the Charter of Rights and Freedoms section 7 and thus unconstitutional
• Void Section 195.6 from having any effect
• Grant an injunction to prevent any changes by anyone to the three street’s bike lanes for the time being
• Grant an order to produce all memos and documents from ministers discussing Bill 202, in unredacted form
• Order the province to pay the law firm’s expenses

Section 7 of the Charter reads as:

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.

The lawsuit specifically argues that the rights to life and security are infringed. Those are summarized as:

The right to life is engaged where the law or state action imposes death or an increased risk of death, either directly or indirectly

Security of the person is generally given a broad interpretation and has both a physical and psychological aspect … Security of the person will be engaged where state action has the likely effect of seriously impairing a person’s physical or mental health

The challenge will turn on whether fundamental justice was done by Section 195.6, and notably the lawsuit does not seek to challenge any of the other sections, like 195.3 or 196.5. This may just be down to putting their strongest foot forward, since the outright inclusion of three streets by name could be considered arbitrary or gross disproportionality, which are against fundamental justice.

The principles of fundamental justice include the principles against arbitrariness, overbreadth and gross disproportionality.

The full link on Section 7 goes into greater legal detail, but I want to point out something which American bicyclists frequently have to consider: if this lawsuit succeeds, could this be weaponized by motorists in future? I think it’s unlikely, because the closest analogy would be if a 400-series Highway were being removed and a motorist wanted to sue to stop that from happening. But the Section 7 challenge can only work if life and security are at stake.

A motorist would struggle to argue that closing a freeway directly causes cars to use city streets, which imperils the lives of motorists who might get into car crashes, since divided highways tend to have lower death/injury rates. The argument fails because freeways aren’t built for the explicit purpose of safer travel, although they do tend to achieve that by not having pedestrians around. It would also be too tenuous to argue that a freeway removal forces motorists to use the city street; they can also choose a different freeway, or take transit and not drive at all, and the Charter doesn’t guarantee a right to drive an automobile.

Whereas it is the explicit purpose of Bloor Street’s bike lanes to provide a safe path for bicyclists, separated physically from motor traffic by curbs and bollards. Physical safety is part-and-parcel to the core notion of a protected bike lane.

I’m not well versed in Canadian constituional law, but the lawsuit takes aim at the most time-sensitive part of Bill 212. And at least to me, it makes a colorable argument that has decent odds of obtaining the injunction to stop the demolition for the moment.