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Charter - s.7 'Gross Disproportionality'. Cycle Toronto v. Ontario (Attorney General)
In Cycle Toronto v. Ontario (Attorney General) (Ont CA, 2026) the Ontario Court of Appeal allowed a Crown appeal, this brought against the granting of a JR which found that requiring "the removal of bicycle lanes from three downtown Toronto streets" under HTA s.195.6 ['Existing lanes in the City of Toronto, direction to restore'] and related regulations breached Charter s.7 ['life, liberty and security of the person'].
The court considers the uncertain concept of 'gross disproportionality', here in a Charter s.7 context:b. The nature of gross disproportionality
[69] The rule against gross disproportionality is not the same as a rule against mere disproportionality: R. v. Safarzadeh‑Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180, at paras. 67-73. The decision to recognize the rule against gross disproportionality as a principle of fundamental justice reflects an intention to elevate the standard considerably – well beyond the possibility of reasonable disagreement inherent in questions of mere disproportionality – in order to preserve “‘broad latitude … for legislative action’”: Bedford, at para. 103, quoting Malmo-Levine, at para. 175. Purported disproportionality short of that high threshold is a matter for public and legislative debate rather than judicial intervention, even where the law’s effects are serious: Malmo-Levine, at para. 175. This reinforces the idea that the principles of fundamental justice are basic legal principles inherent in the Canadian constitutional order – not instruments authorizing courts to declare winners and losers in public policy debates.
[70] Thus, in Bedford, at para. 120, the Supreme Court described gross disproportionality as follows:Gross disproportionality asks a different question from arbitrariness and overbreadth. It targets the second fundamental evil: the law’s effects on life, liberty or security of the person are so grossly disproportionate to its purposes that they cannot rationally be supported. The rule against gross disproportionality only applies in extreme cases where the seriousness of the deprivation is totally out of sync with the objective of the measure. This idea is captured by the hypothetical of a law with the purpose of keeping the streets clean that imposes a sentence of life imprisonment for spitting on the sidewalk. The connection between the draconian impact of the law and its object must be entirely outside the norms accepted in our free and democratic society. [71] Several things are remarkable in this passage in the court’s unanimous decision. Gross disproportionality is understood as a relationship between a law’s purpose and its effects that “cannot rationally be supported”. It is devoid of reason.
[72] This is a standard that should rarely be met. As I said in discussing arbitrariness, legislatures do not act for no reason. And having decided that it is necessary to act, they are unlikely to legislate so poorly that the law they create is devoid of reason. The Supreme Court emphasizes as much when it says that gross disproportionality arises only in “extreme” cases – cases in which “the seriousness of the deprivation is totally out of sync with the objective of the measure” (emphasis added). Such cases should be obvious – not even remotely arguable, as the court’s hypothetical example demonstrates. Gross disproportionality, says the court, is demonstrated by a law designed to keep the streets clean that imposes a sentence of life imprisonment for spitting on the sidewalk. And in Bedford itself, the court described the disparity grounding its finding of gross disproportionality in similarly extreme terms – a law that had exposed its subjects to a high risk of being murdered by a notorious serial killer merely to prevent nuisances associated with street prostitution: at paras. 135-36, 158.
[73] Almost nothing is like these examples. It is not surprising, therefore, that the Supreme Court has, since Bedford, repeatedly declined opportunities to declare deprivations of s. 7-protected rights to be grossly disproportionate, even in cases like Carter, where it perceived the law’s effects to be “severe”: at para. 90. And again, as further evidence of how high the standard is, in Bedford the court refers to laws that have a “draconian impact” – laws that are “entirely outside the norms accepted in our free and democratic society”: at para. 120. To say that gross disproportionality establishes an extremely high standard is an understatement.
The removal of bicycle lanes is not grossly disproportionate
[74] The application judge cites Bedford and purports to acknowledge the high standard it establishes. Yet in short order he concludes that high standard is met by the removal of bicycle lanes:[T]he evidence is clear that restoring lanes of motor vehicle traffic by removing the bike lanes, or reconfiguring them so that they are no longer physically separated from cars, will lead to more accidents, injuries and deaths. … It is reasonable to conclude that people who cycle will be injured and killed when lanes for motor vehicles are installed and protected bike lanes are removed. That impact is grossly disproportionate to the asserted benefit, taken at face value, of saving some drivers of cars a few minutes of travel time. [75] There is much that is wrong with this reasoning. It minimizes the purpose of the legislation, in effect trivializing it by characterizing it as saving some drivers a few minutes rather than reducing traffic congestion, which may in turn result in a wide range of positive effects. At the same time, it inflates the negative effects of removing the bicycle lanes, talking of injuries and deaths that will occur only if the bicyclists choose to ride on the roads that have no bicycle lanes – a situation that obtains on roads throughout the province. Having so characterized the purpose and effects of the legislation, the application judge rendered the outcome inevitable on a simple proportionality standard.
[76] But that is not the standard he was required to apply. The absurd hypothetical the court used in Bedford to demonstrate gross disproportionality and the extreme facts of Bedford itself illustrate this point. Removing bicycle lanes is in no way analogous to imposing a sentence of life imprisonment for spitting on the sidewalk or exposing citizens to a high risk of being murdered to prevent nuisances. It is mere traffic regulation and cannot be described as “draconian”.
[77] The application judge’s references to concerns raised by intervener groups do not support the conclusion that the law is grossly disproportionate. The assertion that the impact of removing bicycle lanes “will disproportionately fall on low-income and disabled individuals, increasing health inequities already experienced by these groups” may, if true, be relevant to the policy argument that the legislation is unwise or ill-conceived, but it is insufficient to establish that the deprivation the law is supposed to effect is grossly disproportionate to its purpose. The same is true of the assertion that removal of the bicycle lanes has a disproportionate effect on children. There was no basis for the submission that the legislation “put[s] children’s lives at risk in pursuit of folly”, and it was wrong for the application judge to cite this submission with apparent approval.
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