LILLEY: Activist judge says bike lanes are a Charter right

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When Pierre Trudeau was sitting down with the premiers to draft the Charter of Rights and Freedoms, they weren’t talking about the Charter right to bike lanes.

But that didn’t stop activist lawyer turned activist judge Paul Schabas from deciding that there is a Charter right to bike lanes.

“Justice” Paul Schabas of the Ontario Superior Court of Justice said that the Ford government, which passed legislation to remove certain bike lanes and which won an election on this issue, cannot move forward.

Let’s just fold tents and let people like “Justice” Schabas run our lives and give up on elections – it seems to be what he wants.

In his decision, Justice Schabas relies heavily on the idea of positive rights, which is the idea that the government must take action to provide you with certain rights. This isn’t part of the longstanding Canadian tradition that takes a negative rights view, which means that the government cannot take steps against you such as restricting your freedom of expression, your freedom or religion or assembly and so on.

The idea of positive rights, that the government must take actions on your behalf, is a relatively new idea by comparison and one upheld by the far-left activists that Justice Schabas has long been associated with.

He cites myriad of cases, some of which he would disagree with if taken to their logical conclusion, like Chaoulli, but uses them to push his point. He even cites American case law to try and make his ridiculous claim there is a “positive right” that obliges the government to provide bike lanes.

The Ford government’s move to pull bike lanes from certain roads was not a blanket ban on bike lanes. In fact, Ford said that he would prefer bike lanes be put on secondary roads.

“Believe it or not, my brother Rob actually put more bike lanes in than David Miller, but he didn’t do it down the middle of University or Bloor or any of those streets,” Ford said about his late brother mayor Rob Ford when announcing his bike lane changes last fall.

None of this matters to activist Paul Schabas, a man who should never have been appointed to the bench.

Schabas acknowledged that those arguing against the bike lane removal never even raised the constitutional elements, but he made a decision on that front anyway.

“The constitutionality of the current provision was not, technically, challenged in this application, as it was enacted after the case was argued. However, the findings in these Reasons have application to the continuing controversy between the parties and the government’s proposed action,” Schabas said.

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Here again is a judge deciding an issue, a case before them, that doesn’t actually deal with the case that is in front of the judge.

Justice Schabas is the epitome of judge made law.

It should be noted that Justice Schabas was the activist judge who couldn’t find the Charter right to freedom of expression when he was ruling in the case of Jordan Peterson. Peterson had challenged the idea that the College of Psychologists of Ontario should be able to discipline him based off of his social media statements.

Schabas took a totally hands-off approach to freedom of expression simply because he disagreed with Peterson politically. Now, he takes a hands-on and positive rights view for bike lanes because he politically opposes Doug Ford and supports the idea of bike lanes.

Justice Paul Schabas, an activist lawyer appointed to the bench by former justice minister David Lametti under the Justin Trudeau government, is the worst example of judicial activism.

We deserve better in Canada.

If we don’t get better, then expect Conservatives to be as egregious in appointing activist judges as Liberals have been in appointing people like Paul Schabas to the bench.

blilley@postmedia.com