What counts as the woods? Judge axes Nova Scotia’s ban that defied ‘commonsense definitions’ | Canada

As wildfires raged in Nova Scotia last summer, the Canadian province issued a simple request to residents: stay out of the woods.

As the situation worsened, authorities turned this request into a ban: anyone caught hiking in the shade of the forest canopy faced a C$25,000 fine; this figure was more than half the average worker’s annual salary.

But the emergency rules, considered strictly “jungle”, were a challenge more fitting for a philosopher than a confused hiker in the parking lot. Rocky areas, scrublands, or swamps were all considered “forest.” So are the forests; but the existence of real trees was not necessary; it was merely proof that they had once been there. Residents could still travel as long as it was not “too great a distance” through the forest.

“Someone who wanted to stay out of the woods had to make some interpretive efforts.” a judge recently declared. “The government just wanted people to use common sense. But the ban seemed to defy common sense definitions.”

Last week, the same judge found that the controversial ban was not only confusing but also violated Canada’s charter of rights and freedoms. While Nova Scotia’s supreme court acknowledged the urgency of the wildfire crisis, it warned that if individual rights are not protected, they “could eventually be eroded in a way that affects everyone.”

chain of events resulting in an event harsh criticism The government’s overreach began last summer when the province went up in flames. In July, a stone-faced state premier, Tim Houston, told the public that a ban on bushwalking was “inappropriate” but necessary to prevent a repeat of the disastrous 2023 bushfire season.

Most people obeyed the order. But that wasn’t the case with ex-military officer Jeffrey Evely, who seized the opportunity to challenge the ban. After informing bylaw officers of his plans, he ventured into the woods in Cape Breton and was promptly fined C$28,872.50.

With the help of the Justice Center for Constitutional Freedoms (JCCF), a libertarian-leaning group that takes on controversial cases, including taking an active role in the self-described Freedom Convoy that swarmed Toronto in 2022, Evely and her supporters challenged the fine in court and won.

On April 17, judge Jamie Campbell found the government violated Nova Scotians’ rights to mobility and failed to weigh the cost of that violation against its attempt to stop the fires. Mobility is a protected right and has previously been called “the essence of being a free person” by the courts. While governments can violate or limit this right, courts have long required “reasonable” consideration of the effects of these efforts.

But Campbell found that this was not the case.

At the same time, the state appeared willing to address the concerns of industrial groups such as forest operators, utilities and telecom companies by granting permits to continue using the forests.

“Those responsible for security…had to do something. They had to do it quickly, and their options were limited,” he wrote. However, he also warned that individuals’ rights must be protected.

Campbell also stated that the order was “too vague to be interpreted.”

“Being told to stay out of the ‘jungle’ made sense to people who thought they knew what the jungle was,” he wrote.

Nova Scotia’s premier defended his government’s actions during a fast-moving crisis.

“As premier, I did what I thought was necessary to support our firefighters, to keep people safe, to keep property safe, and that was the forest ban,” Houston said this week. “Based on the information I had, it was completely appropriate under the circumstances at that time.”

JCCF legal counsel Marty Moore said the decision was “an egg in the government’s face” and would likely deter others from taking similar measures. JCCF handles cases where it believes there is excessive government interference with free speech, religious freedom, and individual liberty. He has also handled controversial cases focusing on culture-war debates over gender identity and human rights law.

For Moore, this case reflected the pandemic restrictions his organization was actively fighting. But he said the case also had deep roots: “all the way back to the Magna Carta in England and Forest Charter of 1271”- gave ordinary people the right to use forests.

“Unless you go to Nova Scotia and touch the forest there, it’s hard to understand the impact of the travel ban,” he said. “Nova Scotia is the jungle.”