Thread by @JoshDehaas

I’m in Halifax this week where the @CDNConstFound is arguing that Nova Scotia’s extreme provincewide ban on being in the woods last summer was unreasonable and unconstitutional. Follow along here for updates from court 👇🏻

Court has begun. Nasha Nijhawan and Sheree Conlon are arguing today for the CCF. We’re first. We have public interest standing to bring this case on behalf of Nova Scotians. Also arguing are lawyers for Jeff Everley, a vet who couldn’t hike for his mental health during the ban.

CCF will make three arguments today. First argument: Minister was ultra vires (offside) the Forests Act. Second: section 7 liberty or security of person was breached because it’s a regulatory offence with jail time, vague & overbroad. Third, Minister didn’t even consider Charter.

CCF is now going through the Forests Act. It’s purpose includes preventing & mitigating wildfires. It notes fire season is Mar 15 to Oct 15. So minister can only regulate using the act during that period. Oct 15 was the same date chosen for the end of the proclamation.

Record shows two decision requests were made at the same time: one under s 24 which allows for a total ban on fires. Minister has a power to control the riskiest human activity: starting fires. This is important because the language in s 24 is different from s 25.

Section 25 speaks to… a restricted travel zone in any area of woods, where necessary for prevention of fires. That’s reproduced in a 25. But what’s missing is that it says it does not apply to owners, occupiers of woods. So minister does not have the power to ban their travel.

Section 27 says no one may drop any cigarette, ash, etc or fail to extinguish those things. It’s important because the minister is making a decision under 25 that it’s necessary for protection of woods to ban fire despite provisions against open fires and dropping cigarettes etc.

So to be “necessary” to exercise the s 25 powers, those measures must have failed. Now CCF explains what counts as “woods.” Act says it includes bog, muskeg, rock barren land, land where there used to be forest. Forest defined as plant association consisting primarily of trees.

Importantly, “forests” does not mean the same things as “woods.” This will matter for our argument later on. Now we point to the out-of-court settlement amount of $28,872.50 for breach. If one doesn’t pay that, it may mean jail or up to $500,000. A very serious risk to liberty.

CCF now points to a NS document from 2016 which shows 76% of the province is forests. 7.8% is naturally non-forested that may be bog, marsh, rock-barren, etc, and therefore woods. The rest is island water, wetlands, agriculture, urban etc. So up to 90% of province may be “woods.”

What’s more, about 60% is privately owned. So when we’re talking about a total ban on travelling to woods, we’re talking about mostly regulating private land and most of the land in the province. This matters. The evidence on fire risk shows that it ranged from high to extreme.

The CCF does not contest that the minister had a responsibility to mitigate fire risk. Final part of the record to walk through is the affidavit of James Rudderham. Much of this was not before the minister. Still, it’s the only evidence in the record of the causes of fires.

It contains NO information about the risk of humans causing fires without lighting fires: smoking, lighting camping fires etc. There is no evidence here that human presence can be used as a proxy for fires.

The protocol for responding to fires includes three options: open fire ban, travel to woods advisory and a woods closure to travel. These are stages. One is to follow the other. Travel advisory is minimum five days after open fire ban. Travel ban is five days minimum after that.

CCF points out that while this protocol is referred to in the open fire ban decision request, it was not even referred to in the travel ban decision request. CCF is making clear how thin the record of the minister’s decision was. It’s only 9 documents.

The s 24 decision request provides two options: use power to ban all open fires including industrial or continue with daily burn restrictions already being used for domestic burning. It discusses the pros and cons of each option. The former is recommended and minister agrees.

The s 25 decision request for a travel ban appears to be from the same day, July 30, despite the protocol suggesting 5 days in between each step. Importantly, the minister didn’t consider not imposing a ban. He’s only asked whether to ban travel with permits or without permits.

He therefore did not consider whether it was necessary to ban travel to the woods. No evidence here that he considered rights. The Charter is not even mentioned. Despite restricting access to 90% of NS. This is likely a fatal flaw in the decision.

CCF also points out the memo makes no distinction between area, activities, property ownership. No explanation of what the woods are. No indication of what activities would be banned. The decision was made July 30, but they deferred announcement to August 5 for staff convenience.

Here’s how DNR interpreted the ban in news releases. Campgrounds open. Forestry, mining etc restricted but permits available. No mention of permits for other activities. You can go to beaches and parks but not on trail systems. Cannot host others on your own wooded properties.

CCF is now getting into the vires argument. The Minister did not reasonably interpret his power under the Forests Act. In Auer, the SCC explained how to apply reasonableness when considering subordinate legislation like the minister’s proclamation.

The question is whether the proclamation falls within a reasonable interpretation of the statute. Judge asks if this means while he doesn’t necessarily agree with how s 25 was interpreted, it may still be reasonable? CCF says yes.

CCF argues that while minister can ban open fires provincewide under s 24, he made an error in how be interpreted s 25. S 24 says, the minister may whenever necessary for protection of woods, prohibit fires in any part or parts of the province. S 25 says restricted travel ZONE.

S 25 allows creation of travel ZONES where entry is banned. Judge asks “even if the zone is the whole thing?” We say NO, it has to be in any *area* of woods. You can’t designate whole province. Thats ultra vires. If he designated a geographical area of woods, that’s onside.

This misapplication created a vagueness and over-breadth problem. If the legislature wanted to bar entry to whole province, they would have used the same language in s 25 as they did in s 24. Instead, they chose the word “zone.” The proclamation does not designate a travel zone.

Judge asks, if you just walk into a stand of trees, that is outlawed? Yes, we say. Or bog or rock-barren land. And it’s not reasonable to say this was necessary. Instead of designating a zone, as required, they say don’t go into nature because you can’t be trusted.

Now on to section 7. We say s 7 is engaged because violation carries potential for imprisonment. And therefore it must comply with principles of fundamental justice: it cannot be vague, arbitrary, over-broad or grossly disproportionate. CCF argues vagueness and over-breadth.

We’re not saying here that this is like Carter, Bedford or Ndovolu, which are about an individual’s life, liberty or security of the person right. We’re talking about cases where s 7 is engaged because of threat or imprisonment: Vaillancourt, Reference re BC Motor Vehicles etc.

Put simply, the government may only threaten imprisonment if it does so in a way that comports with the principles of fundamental justice. First, vagueness: laws must be knowable and understandable by the public, you must be able to have a legal debate & judicial interpretation.

This is a low standard. Judge asks whether he needs an actual charge with facts to determine whether it’s vague or not. CCF says no. The question is whether or not it’s possible to interpret the provision. Can we look at the proclamation and know what conduct is prohibited?

We say no. You can’t look at it and tell what constitutes entry into the woods. Had the minister said these are the zones where you can’t enter, that wouldn’t be vague. He just said woods and a person could know when they’re in the zone of risk.

Judge asks whether they should provide metes and bounds? We say they should have given a defined area. We don’t know where we can go. Woods is too broad for us to know where we can go. The rank confusion during enforcement supports this. There was no real limit on discretion.

DNR interprets this to include railroads, crown land leased irrespective of character, forest access roads — no guests on your private property if it has woods. You go down a driveway to a clearing with a house. How are you supposed to know what you can do on your property?

If there are three trees in my backyard, can kids play under them? Have they entered woods? It’s vague. It’s also over-broad, which is to say too sweeping in relation to the objective. The evidence shows no one knew what this meant and the DNR just made it up as they went along.

In Appolunappa, the chief justice explained that laws are overbroad and interfere with some conduct that bears no relation to its object. It’s rational in some cases but not all. Laws cannot overreach even for one individual. The purpose here is to prevent fires.

If the proclamation includes activities that don’t cause fires, then it’s overbroad. It bans just walking one’s dog. Judge asks: but can’t you just say that there’s a risk that anybody who goes in the woods might just smoke anyway, so isn’t that a legitimate political decision?

CCF’s answer to that is Ndhlovu, where the SCC explained at para 104 onward that enforcement practicality is generally not addressed at S 7. You can’t say yes, individual’s rights are breached for administrative convenience. This was rejected in Bedford.

CCF reminds the court that there’s no evidence that humans are a proxy for fire risk. This was overbroad because the government could have done a multitude of evidence-based restrictions like banning ATVs or open fires.

There was no connection between the objective and the prohibition of activities like dog-walking with nothing that could cause a spark. Or having guests on a wooded lot for a picnic. Or hiking at Polly’s Cove which is rock-barren. This shows the over-breadth.

We're moving on to question of whether the minister proportionately balanced the objective with the Charter rights at issue, known as Dore analysis. This is similar to reasonable limits analysis done of laws under Oakes. The important case here is Conseil scolaire francophone.

This was a decision by a minister about denial by the minister of admission into a French-school, based on language rights. This matters because there was no rights infringement, but the SCC said if there's a Charter value effected by a decision, the government must consider it.

Here the judge asks: so if they just got lucky that there was no infringement, they still didn't act reasonably if they didn't consider the value? The CCF says yes. Charter values underlie rights, according to SCC. Decisionmakers must consider them when applying their discretion.

Conseil Scolaire is clear that a failure to consider Charter values renders a decision unreasonable. This is about both process and outcome. Judge says: sounds like it's more about the process than the outcome. CCF says it's a bit more nuanced.

CCF argues that when values are engaged, the minister must show he understood the impact on the values and took them into account. We argue he did not.

The rights engaged are liberty (section 7), the right to free movement is a Charter value protected by section 6 mobility, and finally section 35 Aboriginal and treaty rights. Once a court determines that values are engaged, they must go on to do their proportionate balancing.

We say the minister didn't turn his mind to any Charter values or Charter rights. The focus must be on the decision actually made: including both reasoning process and the outcome. To be reasonable, a decision MUST reflect that fact in their decision.

Not only that, they must MEANINGFULLY address the impact on the group whose rights are impacted. The minister must turn his/her mind to whether there were less rights-infringing measures available while still achieving his objective. That's what we mean by balancing.

We've already discussed why section 7 (liberty) is not only engaged but infringed. Now, we're talking about the right to free movement, which was reiterated just last month in the Taylor case, where the CCF argued there is a right to movement simpliciter (the SCC agreed).

CCF reiterates that if the Minister didn't consider the Charter value of free movement, the decision cannot be reasonable. The Minister maintains TO THIS DAY that there is no right to free movement. Taylor is unequivocal that there is.

From Taylor, para 1: "Mobility rights sit at the heart of what it means to be a free person. The ability to move freely throughout one’s country, without restriction or need for government authorization, often differentiates a liberal democracy from an authoritarian dictatorship"

Judge asks whether they're just talking about interprovincial mobility. They were not. The SCC says this very clearly at para 64. We have a "right to travel freely within Canada for any purpose, including within and across provincial borders." This goes back to the Magna Carta.

The SCC states: "Government actions that limit the ability of Canadians to move freely within Canada, except in a fleeting or trivial fashion, or make such movement contingent on state authorization infringe s. 6(1) of the Charter."

The SCC notes that limits can be justified, but "given the fundamental importance of free movement within Canada, the onus is firmly on the state under s. 1 of the Charter to justify them." Recall, NS didn't consider freedom of movement. Their position is no such right exists!

Final right that ought to have been considered was Aboriginal and treaty rights (s. 35). The Mi'kmak people have well-known hunting and fishing rights, and there's no dispute the woods-ban impacted those rights -- and so they ought to have been considered. Minister did not.