Simon's Legal Resources

Charter - Judicial Review (JR)

. 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 role of JR in a Charter context:

The role of the courts on Charter challenges

[20] It is important to avoid approaching judicial review under the Charter in a technical or mechanical fashion. The Charter is part of a larger democratic constitutional order and must be interpreted and applied in the context of that order and all that it entails.

[21] The starting point is this: ours is a Westminster parliamentary democracy with well-defined constitutional roles. As the preamble to the Constitution Act, 1867 states, Canada has “a Constitution similar in Principle to that of the United Kingdom”, a constitution that by 1867 had been directing the political branches of government for centuries. In that system, the executive proposes legislation but the decisions whether to legislate and how to do so belong to the legislature. Courts play no role in the policy development process, no role in the choices made by the government in proposing legislation, and no role in the legislature’s decision to pass a law. The role of the courts is to adjudicate disputes arising under the law once it is enacted. This separation of powers is a bedrock principle of constitutional law and it is uncontroversial in our legal tradition: see Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at paras. 27-31; The Honourable Malcolm Rowe, Chris Puskas and Allyse Cruise, “The Separation of Powers in Canada” (2024) 1 S.C.L.R. (3d) 323.

[22] Now, 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. The temptation to do so may be great; judges may suppose that they have much to offer to public policy debate. But the temptation must be resisted. It is not just that courts have no expertise in policy making – no expertise in making the sorts of polycentric decisions that legislatures make routinely. It is illegitimate for courts to involve themselves in matters of legislative policy. Policy is for politics. Whether courts think legislation is wise or unwise, is irrelevant so far as its constitutionality is concerned, and constitutionality is the only question with which courts are legitimately concerned: see e.g., Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693, at para. 3; R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571, at para. 173; and Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123, at p. 1142, per Dickson C.J.

[23] With respect, the application judge lost sight of this principle when, in the course of outlining the background to the application, he weighed in on policy and political considerations. He commented extensively on the political background to the legislation, recounting remarks by the Premier and Minister of Transportation, contested data concerning road use, and exchanges at legislative committee proceedings. He quoted at length from members of the public and organizations opposed to passage of the legislation, as well as the Mayor of Toronto and the City Manager – all of this prior to addressing the only matter with which the court was properly concerned: whether the legislation violated the Charter. Indeed, the application judge’s decision is replete with criticism not only of the legislation but also of the government’s conduct in promoting its passage. He went so far as to express concern that the legislation was passed despite the government’s internal policy advice and public criticism of the bill.

[24] None of this was relevant to the task before him.

[25] Lest there be any doubt: in formulating policy or legislating, neither the government nor the legislature is under any obligation to accept policy advice, whether from bureaucrats, experts, or members of the public. The choices they make are the stuff of politics. We are governed by those whom we elect and they are accountable to the people for the choices they make, not to the courts.

[26] It is important to remember that judicial independence is a two-way street: the government and legislature must obviously respect the independence of the courts, but courts must respect the roles and responsibilities of the other branches of government. Judicial review under the Charter is not an occasion for courts to comment on or critique policy or political decisions, as Tulloch C.J.O. explained in Dorceus v. Ontario, 2026 ONCA 321, at paras. 23-24:

[T]he cornerstone of the separation of powers is mutual respect. ...

Because respect is reciprocal, the judiciary must remain mindful not to intrude into the domains of the political branches. The courts of law exist to resolve legal disputes. The courtroom is not a political forum. Nor is it a proxy for the public inquiry process in which the policy judgments of the legislative and executive branches can be second-guessed and re-weighed. These differences between the judicial function and the political arena must be preserved. (Citations omitted.)

. Vervoort et al v. Minister of Health et al [JR versus R14.05 Application]

In Vervoort et al v. Minister of Health et al (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, this brought to "challenge the recent Ontario government policy affecting his eligibility for medical residency".

Here the court determines that the addition of Charter grounds does not expand JR jurisdiction, and the consequent need to re-file this as a Superior Court R14.05 application:

Alleged Charter Violations

[25] I also agree with the respondents that the inclusion of Charter arguments does not give the court broader jurisdiction. As stated by this court recently in Apitipi Anicinapek Nation v. Ontario, 2025 ONSC 5033, at para. 17, “the Divisional Court’s status as a Branch of the Superior Court does not transform its substantive jurisdiction to include the broad inherent jurisdiction of a Superior Court judge.”

[26] Apitipi involved an application for judicial review to challenge a decision of the Minister of Natural Resources in connection with a water management plan. The applicant sought administrative law remedies, such as an order quashing the Minister’s decision as unreasonable and not in compliance with the Crown’s duty to consult. The applicant also sought a declaration that the relevant legislation, regulations and policies were unconstitutional as inconsistent with s. 35 of the Constitution Act, 1982.

[27] A panel of this court concluded that, although there was jurisdiction to challenge the Minister’s decision on administrative law grounds in Divisional Court, the constitutional challenge plainly fell outside the court’s jurisdiction. It therefore transferred the constitutional challenge to the Superior Court.

[28] The applicants submit Apitipi is distinguishable because the focus there was on the inability to challenge abstract government inaction. I disagree. While there is a specific policy at issue in the current case, that does not change that there is no jurisdiction, as derived from the JRPA, to review that policy. The Charter challenge cannot expand jurisdiction that does not exist from the outset.

[29] In this case there appears to be no need to transfer the constitutional challenge to the Superior Court because, following a case conference in this court on November 24, 2025, counsel for the applicants filed an application in the Superior Court under r. 14.05 of the Rules of Civil Procedure, R.R.O. 1990 Reg. 194. The application was brought on behalf of different applicants but challenges the same policy on the same constitutional grounds and relies on much of the same evidence. A motion in the r. 14.05 application was scheduled before the Superior Court on December 1, 2025.

. R. v. Canadian Broadcasting Corporation

In R. v. Canadian Broadcasting Corporation (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of an 'open court'-like order, here involving the Youth Criminal Justice Act (YCJA) "which limits access to records and information with respect to criminal proceedings against young persons".

Here the court considers the discretion of the below JR court (for a writ of certiorari) to decline to consider a Charter argument:

(4) The SC judge did not err in declining to hear the appellants’ constitutional challenge

[96] The appellants contend that the SC judge erred in declining to hear their challenge to the constitutionality of the YCJA provisions limiting their right to access the Records and to publish information in them. They do not seek a new hearing but ask this court to declare that the SJ judge erred in dismissing their constitutional application.

[97] I would not grant this aspect of the appeal.

[98] I agree with the respondents that the applicable standard of review is not correctness. The SC judge’s decision not to hear the constitutional challenge was an exercise of judicial discretion. This court must accordingly determine whether he gave sufficient weight to all relevant considerations: Reza v. Canada, 1994 CanLII 91 (SCC), [1994] 2 S.C.R. 394, at p. 404.

[99] The considerations considered by the SC judge in declining to hear the constitutional challenge were appropriate. He considered that it is more “desirable that the initial inquiry and decision on these matters be argued, heard and decided in the court that administers youth justice.” This conclusion is consistent with the recognition in S.L. v. N.B., at para. 54, that Parliament has unambiguously placed the responsibility for overseeing access to youth court records on the shoulders of youth justice court judges and that they are uniquely suited to this role:

Youth justice court judges are familiar with the principles and policies animating the Act. They are also familiar with the terms of the Act and the specific provisions sprinkled throughout the Act that touch on access issues. Youth justice court judges also know what records are generated by the youth justice court system, and have daily experience in considering and balancing the competing interests which may clash on access applications.

[100] The SC judge further found that he should not hear the constitutional challenge because he did not have the full record before him. The respondents suggest that he could have simply ordered that the file be transferred. The SC judge was not, however, required to make such an order to accommodate the appellants’ failure to raise the constitutional issues at first instance. The appellants alternatively argue that the SC judge did not need the full record to consider the issues on a constitutional challenge. I do not agree. Charter analysis is contextual. It requires a comprehensive evidentiary record.

[101] The appellants contend that the SC should have given weight to their argument that the constitutional challenge should be heard in the Superior Court because it can declare a law invalid — the relief sought in their application — whereas the Youth Court cannot. As the SC judge correctly found, however, the Youth Court can determine the constitutionality of a provision for the purpose of deciding whether it should be enforced in a specific proceeding: R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 15.