|
Constitution (Non-Charter) - Parliamentary Sovereignty. 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'].
Here the court considers whether a legislature can bind it's successors (it can't):2. The Charter does not preclude the repeal of legislation
[31] The appellants argue that, just as s. 7 does not mandate that the state take action to reduce the risk of harm caused by third parties or to safeguard citizens from the hazards of life, it does not require the state to continue measures it has previously taken to achieve those ends.
[32] This is undoubtedly correct, but the point can be stated more broadly.
[33] The Charter is part of the supreme law of Canada, and any legislation inconsistent with it is of no force or effect to the extent of the inconsistency: Constitution Act, 1982, s. 52. Thus, legislation that undoes prior legislation is subject to the Charter, just as the prior legislation was. But there is a significant difference: as long as the prior legislation was not mandated by the Charter, undoing it by amendment or repealing it altogether is necessarily Charter-compliant, regardless of how beneficial or important the prior legislation may be thought to have been. This is so “even where those measures accord with or enhance Charter values”: Lalonde v. Ontario (Commission derestructuration des services de santé) (2001), 2001 CanLII 21164 (ON CA), 56 O.R. (3d) 505 (C.A.) at para. 94. To hold otherwise would deny one of the most fundamental rules of our democratic constitutional order: legislatures cannot bind their successors. Amendment or repeal of legislation may breach the Charter only if the breach can be established independent of the prior state of the law.
[34] The Supreme Court has made this point clear on several occasions, most recently in R. v. Sharma, 2022 SCC 39, [2022] 3 S.C.R. 147. There the court said “Parliament is not bound by its past policy choices ... legislation must be assessed on its own to determine whether it is constitutionally compliant, without having regard to the prior legislative scheme”: at para. 61, citing Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464, at para. 33. The Charter “does not bind the legislature to its current policies”: Sharma, at para. 63. It is an “established constitutional principle that Parliament cannot, through ordinary legislation, fetter itself by inhibiting future legislative action”: Quebec v. Canada, at para. 25, citing Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837, at para. 119.
[35] Legislation is, after all, an experiment: it may or may not work, as intended or at all. It may work well for a time, but circumstances may change; legislation may outlive its usefulness and require significant reform to remain relevant. But ultimately, there is no question that it may be amended or repealed by a future legislature.
[36] Thus, rights, obligations, interests, and privileges can be created by ordinary legislation and altered or removed by the same means. This is a bedrock principle of parliamentary sovereignty, a principle that was not altered by passage of the Charter. Whether legislation is consistent with the Charter is not determined having regard to the state of the law prior to passage of that legislation. The prior legislation is irrelevant to the constitutionality of the amending or repealing legislation.
There is no Charter right to bicycle lanes
[37] The claim before the application judge was that bicycle lanes could not be removed to alleviate traffic congestion without violating s. 7 of the Charter. This, according to the application judge, was not a positive rights claim; it was, instead, a request to strike down legislation that put people at risk by removing a safety feature on roads.
[38] With respect, this distinction is not tenable. An order under the Charter prohibiting removal of bicycle lanes can only be understood as establishing a Charter right to those bicycle lanes. It is logically ineluctable: if the Charter prevents the removal of bicycle lanes because of the protection they are thought to afford, it can only be because there was a constitutional right to that protection – and hence, the bicycle lanes – in the first place.
[39] Thus, despite the application judge’s denial, an order prohibiting removal of the bicycle lanes would ensconce the prior legislation. In effect, it would hold the legislature to a constitutional baseline created by prior legislation, denying the authority of the legislature to change policy course – the very approach that, as we have seen, has long been rejected by the Supreme Court. In Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, [2021] 2 S.C.R. 845, at para. 30, the court characterized a claim to restoration of a prior legislative framework – in that case, a 47-ward electoral structure – as a “straightforward positive claim”, describing the prior legislative framework as being “of no legal significance”. Citing Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673, at para. 36, the court equated a claim to restore the status quo with a demand to legislate a framework for the first time, adding that this approach was necessary in order to avoid fettering the legislature’s law-making authority.
[40] The application judge acknowledged the appellants’ concern that granting the application would turn many traffic issues into questions of constitutional law but dismissed it as “speculative” – a “floodgates concern”, he said, that is based on circumstances that “rarely arise”:Road design and traffic engineering decisions are, as one would expect, decisions that are based on data and “highway engineering” advice. … [I]t is safe to conclude that most traffic and road design decisions are not made arbitrarily nor do they increase the risk of harm. [41] The suggestion here is that there is no reason to be concerned about the constitutionalizing of traffic regulation that the application judge’s decision entails; Charter challenges to legislative change will normally fail because traffic regulation decisions will be made based on data and highway engineering advice.
[42] But this answer begs the question about the legitimate scope of constitutional judicial review. It suggests that the constitutionality of legislation regulating traffic depends ultimately on whether the legislation is made in accordance with expert advice, and as I have said, there is no such requirement. No regulatory legislation would be safe from a finding of unconstitutionality if there were.
[43] There is no Charter right to bicycle lanes – neither specifically nor as inference from any of the rights specifically enumerated in the Charter. The existence of bicycle lanes depends on legislation alone. Thus, their removal does not effect a deprivation within the meaning of s. 7, and the application judge erred in concluding otherwise. . Reference re An Act respecting First Nations, Inuit and Métis children, youth and families
In Reference re An Act respecting First Nations, Inuit and Métis children, youth and families (SCC, 2023) the Supreme Court of Canada considers the nature of 'parliamentary sovereignty':[57] One fundamental postulate of our constitutional architecture is parliamentary sovereignty (see, e.g., Reference re Pan‑Canadian Securities Regulation, 2018 SCC 48, [2018] 3 S.C.R. 189, at paras. 56‑58). This general principle of parliamentary sovereignty in Canada is explained as follows by Professors Hogg and Wright: “Not only may the Parliament or a Legislature, acting within its allotted sphere of competence, make any law it chooses, it may repeal any of its earlier laws” (P. W. Hogg and W. K. Wright, Constitutional Law of Canada (5th ed. Supp.), at § 12:9 (footnote omitted)). The logical corollary of this postulate is that Parliament and the legislatures may bind the Crown through legislation (see, e.g., P. W. Hogg, P. J. Monahan and W. K. Wright, Liability of the Crown (4th ed. 2011), at pp. 396‑97). They may do so expressly or by necessary implication (IBEW v. Alberta Government Telephones, 1989 CanLII 79 (SCC), [1989] 2 S.C.R. 318, at pp. 326‑30). Through this power to bind the Crown, parliamentary sovereignty is thus exercised over government actors of all sorts. By imposing limits on these actors through legislation that is binding on the Crown, lawmakers can shape how public powers are exercised (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 28; see also H. Brun, G. Tremblay and E. Brouillet, Droit constitutionnel (6th ed. 2014), at paras. IX.39‑IX.41). Government actors are bound by legislative limits imposed on them by Parliament and the legislatures, subject to constitutional imperatives. ...
|
