A Nova Scotia supreme court judge has ruled that an emergency prohibition banning residents from entering the “woods” during a wildfire crisis violated Canada’s charter of rights and freedoms.
A Vague Prohibition and Heavy Fines
During a period of intense wildfires last summer, provincial authorities transitioned a request for residents to avoid forested areas into a strict prohibition. Those caught hiking under the forest canopy faced a fine of C$25,000, an amount exceeding half the average worker’s yearly salary.
The ruling highlighted significant confusion regarding what actually constituted “the woods” under the emergency rules. The definition included marshes, scrubland, and rock barrens, as well as areas where trees were no longer present but had once existed.
Justice Jamie Campbell noted that the order was “so vague as to be incapable of being interpreted at all,” stating that avoiding the woods required an “interpretive effort” that defied common sense.
The Legal Challenge in Cape Breton
The legal battle began when Jeffrey Evely, an army veteran, intentionally entered the forest in Cape Breton after notifying bylaw officers of his intent to challenge the ban. Evely was subsequently issued a fine of C$28,872.50.
Supported by the Justice Centre for Constitutional Freedoms (JCCF), Evely challenged the penalty in court. On 17 April, Justice Campbell found that the government had violated the mobility rights of Nova Scotians.
The court observed that even as governments can limit protected rights, they must do so with “reasonable” consideration of the effects. The judge found the province failed to weigh the cost of breaching these rights against the effort to stop the fires.
Industry Exemptions and Government Defense
The court noted a disparity in how the ban was applied, as the province issued permits allowing industry groups to continue using the woods. These groups included telecom companies, utilities, and forest operators.
Premier Tim Houston defended the decision, stating the ban was “completely appropriate” given the information available at the time. He argued the measure was necessary to keep property and people safe and to support firefighters to avoid a repeat of the disastrous 2023 wildfire season.
Marty Moore, legal counsel for the JCCF, described the ruling as “egg on the face of the government.” He suggested that this decision may serve to deter other authorities from pursuing similar restrictive measures in the future.
Potential Future Implications
The ruling could lead to more stringent requirements for how emergency prohibitions are defined to ensure they do not infringe upon mobility rights. Future wildfire restrictions may need to provide clearer, more objective geographic boundaries to withstand legal scrutiny.
Frequently Asked Questions
What was the penalty for violating the woods ban?
Individuals caught hiking under the forest canopy faced a C$25,000 fine, though Jeffrey Evely was specifically handed a fine of C$28,872.50.
Why did the judge rule the ban was unconstitutional?
Justice Jamie Campbell found the ban violated the mobility rights of Nova Scotians and was “so vague as to be incapable of being interpreted at all.”
Were there any exceptions to the prohibition?
Yes, the province issued permits to industry groups, including utilities, telecom companies, and forest operators, allowing them to continue using the woods.
How should governments balance urgent public safety needs with the protection of individual constitutional rights during a crisis?
