Toronto’s Bike Lanes Constitutional Crisis

Are we stretching the Canadian Charter to cover bike lanes and park encampments?

Gavin Tighe and Stephen Thiele dive into a fiery debate on the limits of judicial activism and the clash between democracy and constitutional rights. 

From the controversy over supervised injection sites to the latest showdown over Toronto’s bike lanes, the duo critiques court decisions that override elected governments’ social policies. 

They explore how recent rulings may threaten the integrity of the Charter itself and spark wider political consequences—like making the "notwithstanding clause" less taboo. 

It’s a spirited, provocative conversation that questions who really gets to decide the greater good in a democracy.

Listen For

4:42 Supervised Injection Sites Showdown

5:49 Bike Lanes Become a Charter Issue

10:59 Small Businesses Hit by Bike Lanes

12:50 Tyranny of the Few vs. Majority Rule

17:23 Stretching the Charter to Its Limits

20:04 The Notwithstanding Clause: Friend or Foe?
 

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Contact Us

Gardiner Roberts website | Gavin email | Stephen email  

Transcript

Gavin Tighe (00:00):

You have a constitutional right to take illegal drugs. You have a constitutional right now to sleep in the park, and you have a constitutional right to a bike lane. When do we get all that? Hello and welcome to the next episode of Beneath the Law, Gavin Tighe, my friend Stephen Thiele. Stephen, how are you today?

Stephen Thiele (00:28):

Well, I biked into work not, but I'm feeling pretty good. The drive downtown, we're recording this on a Saturday, was terrific. There was no traffic ingestion whatsoever.

Gavin Tighe (00:43):

Well, I got to say that I'm up in beautiful Northern Ontario and it's a gorgeous day here. The leaves are coming out on the trees here finally in late May in Canada. And as I said, I think on our last episode, which is the same episode, it's a rare occasion where there are leaves on the trees in spring and Leafs in the playoffs at the same time. So

Stephen Thiele (01:05):

Go leaf,

Gavin Tighe (01:06):

Go. We Leaf fans are very, very happy right now.

Stephen Thiele (01:09):

We are, and our producer is from the lovely province of Alberta. I'm not sure if he's cheering for the Oilers, but he may be. Yeah, you know what? It's

Gavin Tighe (01:20):

Been a great, great playoffs and some used to winning in Alberta. Being a Leaf fan is like, I dunno, there are a few things in life that are a larger curse than being a fan of the Toronto Maple Leafs.

Stephen Thiele (01:32):

There's a lot of scrap knees being a Toronto Maple Leaf fan jumping on and off the bandwagon.

Gavin Tighe (01:38):

Listen, you tell me about it. My head's exploded more times than I can care to mention, but any event, we are here to talk about a real hot topic that's come out and underlining a number, a real tension in Canada and Canadian law and in the checks and balances system of our constitutional democracy. And constitutional democracy is always an interesting charm because it should not be an oxymoron that there's a constitutional democracy in my view and there, but there's tension between Constitution, which is law, which empowers courts to interpret things and democracy, which is theoretically political and involves legislatures of elected officials who are allowed to pass legislation to implement theoretically social policy. And that social policy is ultimately dictated by the electorate who elect the government to implement the policy that theoretically the government was elected to implement. And here we are in a very interesting situation.

(02:43):

We've had a number of altercations, if you can call it that, between elected officials here in Ontario and judiciary where judges have stepped in to stymie, for lack of a better word, implementation, various social policies that elected governments have sought to implement. And I can think of three particular instances, and we'll talk about the third one today, but the first was, it was a decision that came out of Waterloo where the city of Waterloo was trying to clear out a homeless encampment in a park and a judge at the behest of a advocacy group who were there, they say to help the homeless people and ordered that, no, no, no, you cannot clear them out of the park because it infringes on their section seven right to life, liberty and security of the person primarily. And that was a remarkable situation because a lot of people go, wait a minute, you have a constitutional right to camp in the park.

(03:51):

And there was a head scratcher from a lot of people's perspective. Then there was a second case that came out that also got a lot of attention, which dealt with supervised injection sites. And that case came along and said the government had put forward a program that said they wanted to shut these sites down and they wanted to convert them into rehab sites. And again, another group came along and said, oh, no, no, these sites help people not overdose or they're safer, they give them clean needles so they prevent the spread of disease. So it protects the life, liberty, and security of the person of these individuals. Therefore, no, you can't shut them down. Court agreed with that, at least in the interim basis and said, while I think about it, you can't shut the sites down. It turned out that the sites had shut themselves down.

(04:42):

I guess nobody told the judge that, but in any event, then the third case that's come out that's created quite a bruja, including a self-described, ran from the premier of Ontario where he was expressing his frustration over the activism of what he saw as activism of judges stymieing, for lack of a better word, social policy implementation by dually elected government. So just to put that within context, we had a provincial election earlier this year in 2025. The progressive conservative party won another majority government. One of the issues they ran on was their intention to remove bike lanes from two major, at least two major arteries in the city of Toronto and north South Artery Young Street, the main street of Toronto and Blue Street, which is the main sort of east west artery, which now have bike lanes put in by the fairly left wing council in the city of Toronto.

(05:49):

And the province, of course, which has the jurisdiction said, we're taking the bike lanes off those two streets, a group coming forward, claiming to be, and there was a number of interveners. These things always attract a whole group of people with interest, but representing the bicycling community, let's call it that, came along and said, no, no, no. These bike lanes protect cyclists and therefore their removal jeopardizes their life, liberty and security of the person, and therefore it was unconstitutional or breached the charter rights to remove the bike lanes. And a judge, at least on a temporary basis, agreed and enjoin the province from removing the bike lanes. And a lot of people would once again say, wait a minute, you have a constitutional right to take illegal drugs. You have a constitutional right now to sleep in the park and you have a constitutional right to a bike lane. When do we get all that and where are we now?

Stephen Thiele (06:50):

I don't know. And I got to tell you, I think the Waterloo decision, quite frankly was wrongly decided. We had the following or a follow-up decision by Justice Conan dealing with the protestors at the University of Toronto, and clearly said that the charter does not protect acts of criminality and trespass is an act of criminality. So those parks do not belong to campers. And quite frankly, the judge in that decision seems to have not looked at that aspect. And perhaps it wasn't argued, but so in my view, they're not appealed. It was never appealed, right? And so again, that's probably the direction of the municipality. So the municipality's basically making a social choice there, but I would've appealed the decision and I would've made that argument and that argument is quite clear in a number of cases. My producer is not going to be happy. We're talking about bike lanes, and quite frankly, I think they should be removed. I think we've gone way too far. We are harming our environment by causing traffic congestion. There may be a view that in the future, a hundred years time or a thousand years time, people will not be using cars. But at this stage of the game, people are using cars.

Gavin Tighe (08:19):

I mean, we could talk about that. The bike lanes, in my opinion, they implemented, they're all over the place in Toronto right now. I mean, I think the only thing that there are more of than bike lanes are speed cameras in the city of Toronto

Stephen Thiele (08:31):

And speed humps and speed bumps.

Gavin Tighe (08:33):

The war on the car is in full force and effect. But in any event, I mean the bike lanes, from what I see, the predominant users of the bike lanes are unlicensed, motorized scooter drivers who are delivering food. Uber Eats, right? Uber eats drivers. I call them the Uber eats, express lanes because

Stephen Thiele (08:54):

Well, I certainly see that on bathers bicycle on the way home.

Gavin Tighe (08:58):

I mean these guys, and that's another issue about the bike lanes. The bike lanes are used by these Uber drivers. Look, I mean, I've ordered Uber res, I don't have a problem with it, and I like it to get there fast, and I like it to get there hot just like everybody else. But they're on these electrified scooters, they're all over the place now. They're not licensed. They pay no taxes. They are operating a commercial business for profit on unlicensed vehicles using bike lanes, frankly, to the detriment of everyone else. Now, nobody wants to see anyone get killed riding a bicycle. I mean no one. But really, I think the statistics came out that the number, the percentage of people as a segment of the population using bike lanes, it's about 2% or

Stephen Thiele (09:47):

3%. It's just very small.

Gavin Tighe (09:48):

It's very small. Now, wouldn't it be wonderful if everyone was fit and riding their bicycle every day? Would you live in Canada? There's a few months of the year when riding your bike is not only unpleasant, but downright dangerous. Forget about cars.

Stephen Thiele (10:01):

Well, and I look at Gavin in terms of cycling, it's not necessarily available to everyone. I certainly wouldn't cycle to work. And as you get older, the use of a bicycle is certainly harder and harder, so it doesn't hit all segments of the population. I live close to Blore Street in the west end of Toronto, and I can tell you the bike lanes that they installed there did increase traffic ingestion. They made basically a 32nd drive across a bridge, a five minute drive over the Humber River. There are hardly any bicyclists or cyclists on that bike lane. And I've spoken to businesses in that area and they've lost money. They're losing business and their mom and pop mom and pop businesses,

Gavin Tighe (10:59):

You may know these, there's a little series of flower shops that are operated by a group. Luckily several Korean families, and they were right on Avenue Road south of Davenport. They've been there forever. They're the best place in Toronto to buy, if you like fresh flowers, they're the place to go. And I was talking to one of the proprietors of one of those shops and indeed install bike lanes. And it's one of these things, you pull up your car, you jump out, you grab your flowers, and off you go. Now there's nowhere to pull up your car. So they said their business is down 30, 40% as a result of this because people have nowhere to stop to get their flowers because of the bike lanes. And if they do, they park in the bike lane, they block the bike lane anyway, so they are a total business killer.

(11:44):

And it's just mind boggling to me. And I'm not, and I confess, I'm a do I cycle. Yeah, I've been on bicycles once in a while. Sure. But if I'm going to go for a bike ride, I mean the last thing I really want to go on a bike ride is on a main street. I mean, I'd rather go for a bike ride through the park or the bike parks, bike paths in a park that was a little bit more pleasant to go cycling. I'm not going bicycling on a main road. I first of all be kind of scared to be perfectly office. That kid, some car would errantly or somebody parking for their flowers were dormy as they jump out of their car. So I question that as well. I mean, I really do question the social policy of that, and I really question why it's sort of this tyranny of the few over the interests of the many. Why do the interests of three to 4% of the population? We've had an election, there was a government elected on this platform, presumably by a majority of the populace, and this three or 4%, their rights seem to trump everybody else's

Stephen Thiele (12:50):

Well. And this gets into judicial activism versus a judge who defers to the legislature. And we've got the decisions here. In this case, there's a very same case. One judge rejects the injunction and then a few weeks later, the other judge grants the injunction to prevent the government from removing these bike lanes. And from a democracy perspective, I'm scratching my head because as you say, premier Ford's government ran on the mandate to remove these bike lanes. He received a significant majority again. And here is the court intervening and saying, well, no, no, no, no, no, we don't think you should remove the bike lanes until I've made a constitutional decision on constitutionality of the legislation and basically makes the interpretation on the evidence before the court saying, well, the government really hasn't shown that it will remove traffic or remove congestion. And I have no evidence from drivers. Well, what's the government supposed to do haul a bunch of drivers before the court?

Gavin Tighe (14:10):

Yeah. Well, I mean I think this is really the issue. I mean, the question is on a larger scale, courts have a very significant role to play. There's no question about that. The charter has a very significant role to play in acting as a check and balance on government and government intervention, government overreach, government stepping on individual civil rights and liberties. There's no, to my mind, absolutely that is the purpose of the charter. Where I get a little bit concerned, a lot concerned actually, is where courts step into the realm of social policy makers and deciding that, you know what, even though it is a democracy, we do elect legislators to implement social policy. Then there are legislators that are elected that I didn't vote for and I don't particularly like and I don't like their social policy, but part of the social contract of living in a democracy is what if a majority of people do like it, then too bad for me. I don't get to overrule the majority. That is one of the things about democracy. We get government, some we like, some we don't. And if we don't like the government in four years from now, we can vote them out. So that is ultimately the root of power in a democracy. Must go back to the electorate as far as I'm concerned. And social policy has to be the ultimate arbiter of social policy has to be the electorate. Otherwise it's not a democracy at all.

Stephen Thiele (15:44):

No, and look, I'm going to tread into something that perhaps I shouldn't, but the reality is in Canada, our judges are not elected. So they're really not answerable to anyone. And look, that may be a good or bad thing, depends on what political perspective you have. People may say that judges should be elected, and I know that people all get up in arms if you make that suggestion to have.

Gavin Tighe (16:13):

I think there's a whole whack of problems with that too,

Stephen Thiele (16:15):

Right? Of course there is. But we do have unelected people making decisions. And what I find very interesting is has the court done something indirectly, which should not be done directly? We have had decisions from the court that say that the charter cannot be used to essentially require a government to spend taxpayer money. Well, that's

Gavin Tighe (16:43):

Interesting one

Stephen Thiele (16:44):

Right on social policy. So has the court done that by saying, well, we are basically supporting the implementation of more and more bike lanes by preventing the provincial government from trying to remove bike lanes. When the electorate basically made that decision by supporting Premier Ford's candidates and his policy and reelecting him to a very strong majority, again, that we don't want our taxpayer money spent on bike lanes all over the place that are causing issues for car drivers.

Gavin Tighe (17:23):

Well, I think the larger issue, from my perspective, it's something that causes me even more concerned maybe on a almost existential level, is I do think that there is, I think that first of all, I think judges mean well. I don't think there's any suggestion of that. I think the judges truly believe that they are doing the right thing and that they truly believe that these types of decisions and the judges, you made them believe that they were appropriate and right in the circumstances. But I think judges need to think about this issue a little bit from a different perspective. I think that the stretching of the charter to protect, for example, the right to camp in a park to protect and to enshrine as a constitutional right, the right to a bike lane, to some point in time, it really imperils in my view, the charter, the charter of rights is a huge accomplishment for Canada.

(18:26):

It took a lot of work to get it. If you stretch it beyond recognition on my view, it's going to break. We do have a way to break through the charter in our constitution. We have a notwithstanding clause of the Constitution. The notwithstanding clause has been sort of, it's been there, it's part of the constitution, but typically it was something of a third rail that a lot of governments were afraid to go to other than the government in Quebec, which seems to go to every other piece of legislation they pass. They don't have any problem with it. But for other governments it was like, well, I don't really want to be passing laws that are infringing the charter. And I'm kind of admitting that if I use the notwithstanding clause, but these tribes of decisions to my mind make the use of the notwithstanding clause much easier for governments because governments are going to be able to say, Hey, we were elected to implement this social policy.

(19:20):

We were elected by you the electorate. We've got some, I'm not going to let a judge stand in the way of the majority of the electorate who wants something done in a certain way. And so we're going to just bake the notwithstanding clause into every piece of legislation or everything that we do effectively nullifying the charter. And I think that is a big problem. And I think courts should be very concerned when they make these types of decisions. They need to think a little politically too. Am I making it easier for governments to simply sidestep the charter in all sorts of legislation because the public is now saying, well, they got to use it because otherwise we'll never get anything done.

Stephen Thiele (20:04):

Well, look, it's making the use of the notwithstanding clause a viable option. As you said decades ago when the charter was first implemented and for the first 20 or 25 years of the charter, a lot of governments were very hesitant to invoke the notwithstanding clause. But I would say in the last five years, a lot of political leaders are showing courage to basically respond to the electorate and to be in their use of the notwithstanding clause or even to talk about the use of the notwithstanding clause. We've seen that invoked in Saskatchewan. We've seen it invoked here in Ontario now. And a lot of premiers are speaking of that quite openly because it comes to the point of the electorate really should be respected in terms of their vote at the ballot box. They're making decisions based on what they hear, what they read in platforms. We're not dumb as the electorate, and so we are making informed decisions, but the courts and the charters seem to be an obstacle in some cases and are not showing deference to the electorate. And you're right, I think it's basically potentially going to result in the charter of rights becoming a glorified bill of rights.

Gavin Tighe (21:42):

Well, I mean effectively, I mean, we only have a charter of rights, and this is I think something a lot of people forget. We only have the charter because of the notwithstanding clause. The notwithstanding clause was the compromise that led to the charter in the first place because the provinces would never have agreed to a charter of rights that displaced the supremacy of parliament without that notwithstanding clause. And it was a balancing issue, and it was right in, it deals with the root of power being the electorate in a democracy. So you can use an withstanding clause, but even if you do, you got to go back to the electorate because it's only good for it's sunset clause, it's got a best before date of five years, which oh conveniently is the election cycle. So the short answer is it was always designed to be a political and democratic option because governments can use it, but they've got to go back to the people if they do.

(22:43):

So, for example, if in this instance, and I don't know if there's any appetite to do this or not do this, I mean, it's only an interim decision at the moment with regards to the bike lanes. But let's say that that decision is permanent, and I have no idea what the judge is going to do there, but I've read the decision and I think there's a good chance it will become permanent. That legislation could be drafted using the notwithstanding clause. And if people really, really, really like bike lanes and they think the government is stepping on the charter protected rights of cyclists to have bike lanes in the next election cycle, that will be an election issue. And sure enough, if this government is voted out, it will be repealed or that use of the not standing clause will just fall away after five years. So in the notwithstanding clauses use, it always goes back to the electorate. But I do worry, I do think that the charter is a very, very valuable document. It is that I believe in, I believe in charter values, and I worry that when it is stretched beyond what it was intended to protect, protect all sorts of frankly special interest rights, we put that charter in peril because it becomes something then that is as you put out, a glorified bill of rights, a wishlist rather than something that is the supreme law of Canada.

Stephen Thiele (24:13):

Well, look, I think it goes deeper than that. From a democratic perspective, active, the will of the people really needs to be respected with respect to what they do at the ballot box. The bike lane issue is one that is not critical to an overall society. I mean, we're not talking about discrimination issues, anti-immigrant kind of issues. What we're talking about is bike lanes. And I have a lot of empathy for cyclists in terms of they want to be protected from harm and injury and that there are deaths from car accidents and cyclists coming together. But you know what? The use of the car has always resulted in deaths since they were invented. So what are we going to say? We should ban cars because they result in deaths

Gavin Tighe (25:22):

A hundred percent. And you see statistics used all the time, and they were used here. I mean, there would be a very strong argument on the basis of the use of statistics. I could come forward and say, listen, before the invention of the car, no one was killed in automobile accident, right? Therefore, cars should be banned because cars cause deaths. And the answer to that is, well, yeah, they do, but we as a society have tolerate maybe wrongfully and we try to minimize it, but accept the fact that, look, the use of the benefit of the car to society as a whole is greater than the harm that the car causes in terms of killing people, which it does. People die in car accidents every day. It is one of the leading causes of death, for sure, among people, certainly younger people. But we tolerate it because the greater good is to be determined to let cars be around. So I guess my question is courts need to be careful that they don't see themselves as the ultimate arbiter of the greater good in a democracy. In a democracy, the arbiter of the greater good has got to be the elected officials who are elected by the people, because it's the people that decide what the greater good is.

Stephen Thiele (26:42):

For sure. The bike lanes are a very interesting issue because you have two competing governments, one that advocates for putting in bike lanes, and they do at the municipal level, which is, in my view, a terrible form of government. The way that it's elected, and I have issues in terms of just electing individuals. There's really not a lot of information given to people and a provincial government that basically controls municipalities. Municipalities are a creature of statute. So the provincial government has ultimate control over the cities, and they've now decided to listen to the electorate and taken over the issues of bike lanes. And what's wrong with that? What's

Gavin Tighe (27:33):

Wrong with that? Well, I will say this, always remember that if no one is above the law, that everyone is beneath it. Thank you everybody for listening. Thanks to our producer, Doug Downs. Stephen, always a pleasure. Please rate us if you can. Good, bad, indifferent. At least we know you're listening. If you've rate us bad, probably paying attention, frankly. So thank you once again to everyone to listening. Please, if you do like what you're hearing, flip it over to a friend or two, have a debate. There's nothing more healthy in any democracy than arguing about the two sides of an issue. And there always are two sides of an issue. And that's why talking to you about the law and getting beneath it is so interesting. So thanks again and we'll talk to you next time.