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Legislature - 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. . Yusheng Cheng v. Toronto Community Housing Corporation
In Yusheng Cheng v. Toronto Community Housing Corporation (Div Court, 2024) the Divisional Court dismissed a motion to extend time to commence an RTA social housing appeal, here focussing on the legislature's choice to limit RTA appeal to questions of law:[20] Under s. 210 of the Residential Tenancies Act, 2006, this court’s jurisdiction on appeals is limited to hearing questions of law. The Divisional Court cannot hear appeals based on questions of fact or mixed fact and law (unless there is an extricable question of law presented). Last week Justice Stratas wrote about recognition of limits on an appeal court’s jurisdiction in similar circumstances to this case.
[21] In Halton (Regional Municipality) v. Canada (Transportation Agency), 2024 FCA 122 (CanLII), the court was asked to hear an appeal from an administrative tribunal. As is the case here, the right of appeal to the Federal Court of Appeal was subject to a statutory limit. Justice Stratas wrote:[8] But even where we grant leave, this issue always remains live: whether we have a “question of law or of jurisdiction” before us under subsection 64(1) goes to our subject-matter jurisdiction. We cannot take on things that Parliament forbids us from taking: See Emerson at para. 9, citing Green v. Rutherforth (1750), 27 E.R. 1144, 1 Ves. Sen. 462, at page 471; Penn v. Lord Baltimore (1750), 27 E.R. 1132, 1 Ves. Sen. 444, at page 446; Attorney General v. Lord Hotham (1827), 38 E.R. 631, 3 Russ. 415; Thompson v. Sheil (1840), 3 Ir. Eq. R. 135. And of even longer standing is the principle of legislative supremacy, one corollary of which is that Parliament’s laws bind courts, just like everyone else: Re: Resolution to amend the Constitution, 1981 CanLII 25 (SCC), [1981] 1 S.C.R. 753, 125 D.L.R. (3d) 1 at 805-806 S.C.R.; Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385 at paras. 71–72; Ref. re Remuneration of Judges of the Prov. Court of P.E.I.; Ref. re Independence and Impartiality of Judges of the Prov. Court of P.E.I., 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3, 150 D.L.R. (4th) 577 at para. 10.
[9] In considering our jurisdiction in cases like this, we must remain on high alert. The say-so of a party that a “legal test” or “the Act” is involved is not enough. “Skilful pleaders” who are “armed with sophisticated wordsmithing tools and cunning minds” can express grounds in such a way as to make them sound like legal questions “when they are nothing of the sort”: JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557 at para. 49. Put another way, “the mere say-so of a party that a ‘legal test’ is implicated” or the expression of grounds of appeal “in an artful way to make them appear to raise legal questions when they do not” is “insufficient to found an appeal”: Bell Canada v. British Columbia Broadband Association, 2020 FCA 140, [2021] 3 F.C.R. 206 at para. 51.
[10] Instead, we must look at the substance of what is being raised, not the form. See generally JP Morgan at paras. 49-50, cited in Emerson at para. 29; British Columbia Broadband at para. 51.
[11] In this appeal, Halton offers a number of grounds for setting aside the Agency’s decision and phrases them as legal issues—for example, adequacy of the Agency’s reasons—to try to get past the limitation in subsection 41(1). However, in my view, Halton’s real concern is mere disagreement with the Agency’s weighing of various factors and its conclusion that the location of the railway line is reasonable, matters we are powerless to address.
[Emphasis added.] . Canada (Attorney General) v. Power
In Canada (Attorney General) v. Power (SCC, 2024) the Supreme Court of Canada re-considers and confirms [the previous case was Mackin (SCC, 2002)] whether and how the Crown can be liable for Charter damages for passing unconstitutional legislation.
Here the court considers 'parliamentary sovereignty':(5) Constitutional Principles
[47] Canada argues that anything less than absolute immunity is inconsistent with three longstanding and foundational constitutional principles: parliamentary sovereignty, the separation of powers, and parliamentary privilege. Mr. Power responds that these principles do not necessitate absolute immunity and, moreover, that such immunity is inconsistent with other foundational constitutional principles, including constitutionalism and the rule of law. Each of these principles inform the separation of powers. We will briefly consider each in turn, before addressing the parties’ substantive submissions later in the analysis.
[48] Canada rightly notes that parliamentary sovereignty, the separation of powers and parliamentary privilege are constitutional principles that ensure that democratically elected officials are free to make laws and to hold the executive to account, without undue interference from an unelected judiciary. The preamble to the Constitution Act, 1867 states that Canada has “a Constitution similar in Principle to that of the United Kingdom”. Parliamentary sovereignty, the separation of powers and parliamentary privilege are core features of the British Constitution (R. (on the application of Miller) v. Prime Minister, [2019] UKSC 41, [2019] 4 All E.R. 299). As a result, these are also important constitutional principles in Canada.
[49] As for parliamentary sovereignty, there are important differences between the United Kingdom and Canada. In the United Kingdom, the “laws enacted by the Crown in Parliament are the supreme form of law” (Miller, at para. 41; see also Reference re Pan-Canadian Securities Regulation, 2018 SCC 48, [2018] 3 S.C.R. 189, at paras. 54-55). In Canada, it is the Constitution that is the supreme law: the legislature can “make or unmake any law it wishes, within the confines of its constitutional authority” (Mikisew, at para. 36 (emphasis added)). In other words, in Canada the principle of parliamentary sovereignty must not be confused with parliamentary supremacy (Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3, at paras. 308-9).
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[81] First, parliamentary sovereignty is not undermined by the Mackin threshold. As noted above, parliamentary sovereignty does not mean that Parliament is above the Constitution. Parliament remains subject to the constraints and accountability mechanisms of the Constitution, including the Charter. By the text of s. 32(1), the Charter specifically applies to Parliament and the provincial legislatures. The supremacy of the Constitution in relation to Parliament is well recognized in each application of s. 52 of the Constitution Act, 1982. Limited immunity does not impair Parliament’s power to make and repeal laws within the confines of the Constitution.
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