Chris Selley: Two court challenges. The least important, you’ve probably heard of
- The Ontario Court of Appeal overturned a 2025 Superior Court injunction that had prevented the Ford government from removing bike lanes in Toronto, emphasizing that courts should not intervene in legislative policy matters.
- Justice Grant Huscroft’s ruling highlighted that courts lack expertise in policymaking and must avoid judicial overreach, a stance welcomed by many conservatives concerned about court activism.
- A separate, less-publicized case challenges Quebec's unconstitutional amendment excusing National Assembly members from swearing allegiance to the Canadian Crown, raising serious questions about constitutional rule and national unity.
- The article warns against supporting court decisions based solely on agreement with their goals, cautioning that increased judicial or political overreach can have negative long-term consequences for the rule of law in Canada.
Last week, a three-judge panel of the Court of Appeal for Ontario laid waste to Superior Court Justice Paul Schabas’s 2025 ruling granting an injunction against the Ontario government ripping out bike lanes in Toronto.
Removing the lanes “imposes a high and grossly disproportionate cost on section 7 rights holders,” Schabas wrote, referring to the section of the Charter guaranteeing the right to “life, liberty and security of the person.”
Money quote from the appeal court ruling, written by Justice Grant Huscroft: “(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. … But the temptation must be resisted. It is not just that courts have no expertise in policy making. … It is illegitimate for courts to involve themselves in matters of legislative policy.”
Many conservatives and other critics of judicial overreach punched the air, and understandably so.
More good news: the week before, someone finally went to court to file a challenge against Quebec’s obviously illegal “law” amending the Canadian Constitution to excuse members of the National Assembly from swearing allegiance to Canada — which is to say to the Crown, which is to say to our head of state, the current Queen or King of Canada, which is to say Canada. Provinces can’t legally do that, even when they’re Quebec. Quebec did it, and a lot of other stuff, anyway.
The appellant is Lawrence David, a Quebecer, University of Ottawa law professor, founder of the Public Interest Litigation Institute and, from what I’ve read of him, an interesting fellow.
“This legal action is not about monarchy or republicanism,” David told Canadian Lawyer. “It’s simply about if they want to abolish the oath, follow the rules for constitutional amendment. … Any amendments that affect the office of the King or (Quebec’s) lieutenant governor can only be done unanimously by Parliament and the 10 legislatures.”
The Canadian government just shrugged and added Quebec’s oath amendment to the Constitution (the online version, anyway). It’s outrageous. They didn’t have to do that. I suspect even the National Assembly, which of course voted unanimously against mandatory oathing, was surprised. (That simpering capitulation reminded me a bit of the financially desperate preacher Eli beseeching Daniel at the end of Paul Thomas Anderson’s There Will Be Blood: “I am a false prophet! God is a superstition!”)
In light of this, why shouldn’t Alberta or Saskatchewan or British Columbia unilaterally amend the Constitution to fit their own needs? Well, OK, Ottawa wouldn’t let them, because they’re not Quebec. So hello, national unity crisis.
Anyway, one ruling was big news. The other barely made a blip.
Hint: The one that barely made a blip, even if not in Quebec’s francophone media, is the one that speaks directly to the future of the rule of law in Canada. That’s not the bike lanes issue, which is ultimately about highly questionable government (but Ontarians are well used to that).
I’m not a fan of ripping out bike lanes as the Ford government conceives of it. Most notably, precedent — not to mention Ministry of Transportation documents obtained by the Toronto Star under freedom-of-information last year — illustrates that the space those lanes currently occupy on Toronto streets will, once removed, almost certainly be replaced by street parking.
That doesn’t help congestion. This might be partially about congestion, at least in the Ford government’s hivemind, but it’s also a front in a much larger culture war. “When cyclists lose, motorists win,” many core Ontario Tories (and a good few Liberals and New Democrats!) believe. (I also very much suspect the Ford Tories won’t rip out nearly as much bike-lane mileage as they’re promising.)
But I think I know the biggest reason why the bike lanes case got much more news coverage than the basic rule of law case, even in the dead of summer. (In theory that’s the absolute best time to file a dry, esoteric challenge like David’s if you want some press, because so many reporters and interns are staggering around chasing “should pets be allowed on splash pads?” stories.) It’s in significant part because Canadian newsrooms have vastly more sympathy for bike lanes than they do for Canada’s constitutional monarchy.
My haughty, jumped-up advice to people and media outlets alike: Don’t pay attention to or cheer on court rulings or laws just because you agree or disagree with their stated aims. There is near-zero chance it won’t bite you in the rear end somewhere not far down the line, the more emboldened politicians and judges become.
National Post cselley@postmedia.com