As wildfires raged across Nova Scotia last summer, the Canadian province made a simple plea to residents: stay away from the woods.
As the situation deteriorated, authorities turned the request into a prohibition: anyone caught hiking under the shade of the forest canopy faced a C$25,000 fine â a figure more than half the average workerâs yearly salary.
But exactly the emergency rules considered to be âthe woodsâ was a challenge better suited to a philosopher than a confused hiker in a parking lot. Rock barrens, scrubland or marshes were all considered âwoodsâ. So too was forest â but the presence of actual trees wasnât necessary, just evidence they had once been there. Residents could still travel as long as it wasnât âany great distanceâ through the woods.
âSomeone who wanted to stay out of the woods had to put in some interpretive effort,â a judge recently declared. âThe government just wanted people to use common sense. But the ban seemed to defy commonsense definitions.â
Last week, that same judge found the controversial ban wasnât just confounding, it also violated Canadaâs charter of rights and freedoms. And while the Nova Scotia supreme court acknowledged the urgency of the wildfire crisis, it warned that if individual rights arenât protected, âthey can be eroded in a way that eventually affects everyoneâ.
The chain of events, which ended in a scathing critique of government overreach, began last summer when the province was engulfed in flames. In July, Tim Houston, a stone-faced provincial premier, told the public that the ban on walking in the woods was âinconvenientâ but essential to avoid a repeat of the disastrous 2023 wildfire season.
Most people adhered to the order. But not Jeffrey Evely, an army veteran who saw an opportunity to challenge the ban. After letting bylaw officers know of his plans, he ventured into the forest in Cape Breton â and was promptly handed a C$28,872.50 fine.
Aided by the Justice Centre for Constitutional Freedoms (JCCF) â a libertarian-leaning group that has taken on controversial cases, including an active role in the self-described Freedom Convoy that besieged Toronto in 2022 â Evely and his supporters challenged the fine in court, and won.
On 17 April, justice Jamie Campbell found the government had violated the mobility rights of Nova Scotians, and failed to weigh the cost of that breach against an attempt to stop the fires. Mobility is a protected right and has previously been called âthe heart of what it means to be a free personâ by courts. While governments can infringe or limit that right, courts have long demanded those efforts be taken with âreasonableâ consideration of the effects.
But Campbell found this wasnât the case.
At the same time, the province seemed keen to placate the concerns of industry groups such as forest operators, utilities and telecom companies, issuing permits for them to keep using the woods.
âThose responsible for safeguarding ⌠had to do something. They had to do it quickly and their options were limited,â he wrote. But he nonetheless also warned of the need to protect the rights of individuals.
Campbell also found the order was âso vague as to be incapable of being interpreted at allâ.
âBeing told to stay out of the âwoodsâ made some sense to people who thought they knew what the woods are,â he wrote.
Nova Scotiaâs premier defended his governmentâs actions during a fast-moving crisis.
âI did what I thought was necessary as premier to support our firefighters, to keep people safe, to keep property safe, and that was the woods ban,â Houston said this week. âThat was completely appropriate in those circumstances, in that moment, based on the information I had.â
Marty Moore, the legal counsel for the JCCF, said the decision, which was âegg on the face of the governmentâ, would probably deter others from pursuing similar measures. The JCCF takes on cases it believes are government overreach against free expression, religious freedom and individual liberty. It has also taken on controversial cases that centre on culture-war debates over gender identity and human rights law.
For Moore, the case echoed themes of pandemic restrictions his organization actively fought. But he said the case also had deep roots â âall the way to the Magna Carta in England and the Charter of the Forest from 1271â- which granted rights to common people to use the forests.
âUnless youâve been to Nova Scotia and touched the forest there, itâs hard to understand the impact of what the travel ban looks like,â he said. âNova Scotia is the woods.â
About the Author
