Thread by @JoshDehaas

I'm in court in Halifax for day two of the @CDNConstFound judicial review of Nova Scotia's extreme provincewide ban on traveling to the 'woods'

Read what happened on day one here:

On day two, we're hearing from lawyers for Jeff Evely. Follow along 👇👇threadreaderapp.com/thread/2033883…

Evely's lawyer Marty Moore (I'll just say Evely) starts by pointing out there is no evidence that walking in forests causes fire. He reiterates that it is irrational for government to ban one activity (hiking) while allowing another that causes fires (forestry).

Judge asks: don't they have the ability to choose that it's more important to choose commercial activity? Evely argues there is no rational chain of analysis here. Evely says the idea of viewing human presence as something that needed to be prohibited is arbitrary.

NS's brief says in their brief that the more humans in the woods, the more fire. Evely says there is a logical leap here from being in the woods to human-caused fires. Evely's evidence is that people in the woods actually REPORT fires. That's what the evidence shows, he says.

Judge asks: "If there are no humans in the woods, there will be no human-caused fires in the woods. That a fair statement? As a factual thing?" Evely says YES. But, if you make a rule that you're not allowed to light fires or cigarettes in woods, people will report rule-breakers.

Evely points to a case where a mother wanted a father who drove drunk to be banned from driving with child. But the judge found there it was illogical to ban him from driving with the child. That was arbitrary.

Judge asks: but some people may say they can drive perfectly safely at 0.08 blood alcohol level. On this reasoning, can't you say that's arbitrary if some are not drunk at that level? Evely does not appear to have a clear answer for this.

Evely reiterates there is no rational chain of analysis from the necessity to fight the fire to the scope of the order. Evely adds that while purpose of Forest Act is to prevent fire, it is also maintaining or enhancing "recreational opportunities..." which was not considered.

Now Allison Pejovic is on for Evely, quotes from Taylor about our "political tradition that does not curtail movement, impose curfews, or require people to carry identity papers in public. Freedom of movement also supports national unity within the diverse Canadian federation."

Evely echoes CCF's argument that free movement is a Charter value that was not considered. She warns of creep toward an authoritarian dictatorship, where Canadians cannot seek solitude in the forests during summer or enjoy hikes with their kids.

Evely aruges his section 7 rights were violated because he has PTSD. S. 7 is the right not to be deprived of life, liberty or security of the person, except in accordance with the principles of fundamental justice (eg: rules against overbreadth and gross disproportionality).

Evely is quoting the Heywood decision, where an arbitrary application of a sex offender registry violated liberty in the sense of freedom of movement and because of the threat of imprisonment. By contrast, the class whose liberty was affected by the ban is upwards of 1M people.

Evely repeats CCF's arguments from Taylor, reminding judge that section 6 includes "a right of movement simpliciter — that is, a right to travel freely within Canada for any purpose, including within and across provincial borders." The CCF made this argument in Taylor at the SCC.

Evely points out that he regularly walks for hours for his mental health in the forest and this was banned by the government. This led to a $28+ fine, which he got specifically so he could ensure he has standing to challenge the restrictions. The CCF has public interest standing.

Evely points out that, like Heywood, this was arbitrary because some people were allowed to keep their freedom of movement in NS: those lucky few who were able to get permits.

Evely argues this was also a violation of liberty in that it interfered with a fundamental life choice. This is based on a Manitoba CA. This is a rarely successful doctrine. But Evely argues he structured his life to be able to hike in the woods; he moved to be able to hike.

Evely has seen horrible things in combat. He has fits of rage, depression and thoughts of self-harm. He structured his life to be able to address his mental health by going into the forests and hiking. That is a serious liberty infringement.

Evely cites Parker, a case where blocking access to medical marijuana for mental health was found to interfere with a liberty interest. If that is a liberty infringement, how can Evely's hiking for mental health not be? It's a fundamental personal life choice.

Evely argues there is no evidence that he is a threat to the woods. He does not bring any flammable material: just himself, his phone, his clothing, his dog. No glass bottles (which NS says can start fires) or lighters. NS suggested tripping can be a fire threat. Unclear how.

Evely reiterates the minister didn't consider Charter rights or values. NS had cited that the government sometimes needs to balance social objectives. Evely says that's appropriate to consider only under section 1. Bedford made that clear at para 125.

Judge asks: Wouldn't the minister engage in a sort of section 1 analysis when he gets the decision request? At least the competing interests: social objectives and Charter values etc? Evely says yes but curtailing liberty is an individual right; can't violate fundamental justice.

NS suggested Evely could have walked on roadsides. But Evely needs to go deep into the forest to get relief from PTSD. No noise. No urban environment. Smells of nature. He shouldn't be forced to walk alongside semi-trucks and cars on a highway amidst exhaust. That's not relief.

Now Evely is arguing security of the person was violated. The key case is New Brunswick v G(J), where SCC said it's restricted through serious psychological stress (not ordinary anxieties).

Another key case is Rodriguez (assisted death case), which says security of person can be violated by criminal prohibitions that interfere with psychological integrity. Parker, medical marijuana case, says depriving medication interferes with physical and psychological integrity.

Finally, she cites Chaoulli, where pain-inducing waitlists for surgery were found to be violations of security of person. Bedford says there must be a sufficient causal connection between state action or law and effect. It's on a BOP. Need not be the only cause.

Evely addresses NS's claim that they need expert evidence to prove Evely has PTDS. In NB v G(J), security of person was engaged for parents faced with threat of being separated from their children. There was no expert evidence suggesting they were diagnosed with a mental illness.

Evely notes that in Cambie Surgeries (the CCF's challenge to arbitrary waiting lists), the B.C. Superior Court also quoted caselaw that makes clear expert evidence is not required. The B.C. Court of Appeal did not interfere with this finding. Judge does not need an expert here.

Evely notes expert evidence was required in Parker, the medical marijuana case, but it's common sense that a doctor would be needed to know if that genuinely relieves epilepsy. Here, we have Evely's evidence that the effects of nature improve his mental health. That's reasonable.

Evely's evidence is that hiking in the woods keeps suicidal thoughts to a minimum: "Noise from traffic and social engagement promotes anxiety... but nature's sounds... crunch of path... no city noise... guided medications in forest is effective for my symptoms," he said.

Evely says: "During travel ban, symptoms became severe... slept 4-6 hours... felt worse than I did at the time of my release from the military... when I go into the forest for a few hours a day, I don't have those thoughts." Pejovic: "you either believe him or you don't, my lord"

The courtroom has gotten very quiet under the weight of Evely's argument here. This is a very good reminder of the serious impacts that the travel ban had on many people. It reminds us of COVID, where lockdowns impacted some people very badly, while others were fine.

Evely: 60 days or more of waking up with suicidal thoughts and not being able to sleep is not trivial. NS's claim that just two months was not that bad is wrong. Two months of suicidal thoughts are serious psychological harm.

Now onto the principles of fundamental justice. Section 7 is two steps: even if life, liberty or security of the person are engaged, they can be limited if they accord with the principles of fundamental justice.

The first is arbitrariness: it's arbitrary in Evely's case because thousands of people were allowed to continue accessing the forest with permits. Judge pushes back about whether we know it's thousands. Even if it's hundreds, the point is the same.

Evely is pointing out that NS said it's just too dangerous to have industrial operations occur during the day, and that they must have fire-watches for two hours afterward. McIssac, firefighting expert, says risks from commercial activities can be reduced but not eliminated.

Evely is walking through the evidence on causes of fires. Many of them are from commercial industries, including blueberry farming, power operations, hot exhaust, failure to obtain industrial permits, mechanical permits. But nowhere does it say walking in the woods causes fires.

Evely points out that even open flame was allowed for industry, for community events and ceremonial fires. But Evely was blocked from walking through the forest. This is evidence of arbitrariness. They block hiking but allow open flames. The law undermines its own objectives.

Evely points out that McIsaac's evidence is that the province got rid of fire towers in 2013 because people with cellphones can report fires. Evely argues this is arbitrary. Evely returns to judge's questions: if everyone is banned, wouldn't that stop fires? Evely is saying NO.

That's not actually true. This is because lightning causes fires and trees falling on power lines causes fires -- and HUMANS are the ones who spot and report these. So it's not reasonable to assume that keeping all people out of the woods will reduce the risk from fires.

Evely quotes Ndhvolu: "If risk is all it takes to make a measure depriving individuals from their liberty compliant with s. 7, the law on overbreadth would be deprived of its normative value." This applies here too. You can't just say there's risk so it's not overbroad.

Evely is moving on to gross disproportionality. Two months of daily suicidal ideation and lost sleep is grossly disproportionate to the benefit in his case. Add in the $28K+ fine and it's even more apparent. Plus, risk of imprisonment. Impacts on HIM are outside societal norms.

Now, Evely is addressing whether travel permits is an acceptable safety valve for the Charter impacts. Evely says no. Only commercial fires and ceremonial fires were granted permits. This is illusory: there was no permit available for people such as Evely.

Finally, Evely is addressing section 1, the reasonable limits clause. It's difficult to cure a section 7 breach under s. 1 because it already considers principles of fundamental justice. Possible in "exceptional conditions such as war, natural disasters or epidemics."

In the event the court considers section 1, Evely points out that this is not a minimally impairing restriction on rights. CCF had offered several. Evely says they could have foot patrols to ensure people are respecting a fire ban, rather than banning travel for all but industry.

Judge says it's difficult to speculate on this question without experts. We don't know how many people you'd need, how many fire towers you'd need, how you'd house the patrol. We're talking as if we know, but people at DNR might say that idea isn't going to work as you expect.

Evely says she's not an expert, but if we get to s. 1, it's clear this was not proportional. They can get to meet their objective with a fire ban and limits on industries that actual cause fires while respecting liberties, freedom of movement, but can't justify this blanket ban.

Now, we're moving on to NS's argument. NS argues that this is a reasonableness review, and the onus to establish unreasonableness was on the applicants. NS says Minister's ability to explain his decision is constrained (not sure what he means).

NS will address the POFJs and then follow up with administrative law arguments, and Dore analysis (proportionate balancing of Charter values/rights and the government's objective).

NS's counsel says, can someone disregard a stop sign because it infringes liberty? Can they enter a minefield if they have a metal detector? Does it mean Evely go into judges chambers? Does that rule need to accord with fundamental justice? There must be a way to draw a line.

NS says we think the liberty interest expressed is one of "unbridled freedom." Judge says: Taylor says in fairly clear terms that there is a right of mobility. How can you deal with that? NS says that's a hard point to deal with. They don't grapple with the prior SCC decisions.

Judge responds: Well, isn't it that they didn't say it before but now they do say it? NS repeats the CCF & Evely didn't deal with it, and if it's as broad as they say it is, everything including going through stop signs, is freedom of movement and must be justified as a POFJ.

NS says this is not arbitrary. There is a connection between the purpose and the means. Imposing the travel restriction was connected to that purpose. That's established by common sense, reason and logic.

NS says overbreadth is all about the connection between purpose and effect, and under the individualistic approach of Bedford, if there's an adverse effect on one person with no connection, such as Evely the law is overbroad.

NS reiterates no overbreadth is possible because the effect on Mr. Evely was because restricting his use of the woods was in line by reducing the risk of wildfires. There was a connection. I don't understand what he's saying or N.S.'s lawyer doesn't understand overbreadth at all.

Judge gives the example of having a guest at a rural property. How is that connected to the objective? NS's counsel says the vast majority of fires are caused by people in the woods, and if we keep people out of the woods, the risk goes down. (Don't see an answer here).

NS is arguing that "overbreadth" in s 7 is the same as a finding of "no rational connection," in s 1, and the government isn't required to provide empirical evidence that their means are connected to their objective. (True, but he's still not addressed how this is not overbroad.)

NS says we can't prove any individual will at any time in the future cause a fire but the difficulty of predicting human behaviour is one of the principle difficulties whenever there is a safety or environmental protection provision.

NS says that we are wrong that human presence does not cause fires. NS says the absence of a connection can't be based on a person's subjective opinion that his presence would not cause a risk.

NS quotes Malmo-Levine, where the SCC said "it would be inconsistent with the rule of law to allow compliance with a criminal prohibition to be determined by each individual’s personal discretion and taste." This may be offensive considering Evely's PTSD isn't a matter of taste.

Judge asks about the drunk driving hypothetical. More people drive drunk on Friday night, so can you ban driving for all on Friday night because it's dangerous? NS says this was just "stay out of the woods" for a "temporary period of time" and it's a policy decision, not legal.

NS says, what if Evely tripped and fell and his phone fell out of his pocket and hit a rock and sparked a fire? He says "the game is not worth the candle." I'm not sure what that means. NS says Evely's activities "could be put off" for weeks. That is not what the evidence shows.

NS responds to Evely's suggestion that they could put more boots on the ground. That kind of interference is less respectful of liberty than a bright-line rule. People would want to search people to determine if they're a danger to forests. That's a more intrusive infringement.

NS says the way the minister chose to deal with its objective is to choose a bright-line rule. NS suggests that a burn ban was not effective: there were 76 reports of illegal fires during the burn ban. Something else was required. A travel advisory was not enough based on risk.

NS says minister didn't cause Evely's PTSD. That was pre-existing. Carter was a case where there was "no way out" but assisted dying. Parker had severe epilepsy with no way out, and a doctor agreed it was medically required. NS argues Evely has no evidence he needs forest hikes.

NS says that the restrictions were also not grossly disproportionate vis-a-vis Evely. He could have gone to the beach or to a rural highway, and the travel restrictions might have saved him from a fire that could have harmed him.

NS says there was an opportunity for Evely to seek a travel permit. NS says the minister couldn't have known about Mr. Evely's situation if he did not apply for a permit. Permits were granted to close a cottage, for taking water from a brook to home well. Why didn't he apply?

NS says none of them were granted for PTSD, but Evely could have tried to make his case at DNR. Instead he insisted on getting a ticket. The ability to get a travel permit was not foreclosed. At least he could have tried. That "takes the sting out of any gross disproportionality"

NS now addressing vagueness. Even a precisely drafted law can give rise to uncertainty. If they can provide a basis for judicial debate they cannot be vague. Judge asks: so it's not whether a member of the public can grasp it? NS says that's the thrust of the cases yes.

Judge asks: what's a basis for legal debate? NS says it means we can have a debate over the words of a particular statute and it's not so amorphous that the judge would have no signposts at all. Here you can debate: was this woods or was it not?

NS says it's not mysterious. Judge says it is kind of mysterious. Act seems to suggest the rocks at Peggy's Cove are the woods, and I don't think of that as the woods. NS says we don't think either that would be woods. (?) Judge asks, then what's a rock barren?

NS says rock-barren is in a clearing in a forest, and not on the shore. Judge pushes NS again. NS warns against putting too much weight on a phrase in the definition because we're looking at this globally and don't want to piecemeal out areas to say it's not forest or woods.

NS that if you could argue that dry marsh is not woods, that would make it too difficult to draw a line around each circumstance, so it's better to draw a bright-line than to try to slice-and-dice various definitions.

Judge says: the problem I have is that you're calling it a bright-line rule. It's a fuzzy rule. Now we are on break.

NS says courts deal with fuzzy lines all the time. NS says a lot is resting on the "rock barren" definition but this may be a very small proportion of the woods. NS goes through a number of other laws that were not found to be vague.

NS addresses our argument that the Minister was required to identify a zone or area of the woods that travel is banned to. He says it's not physically possible to mark this off. NS says this is irrational.

Judge says s 25 says "in any area of woods." Within what area of woods does the proclamation apply? NS says in all areas in all counties. NS says: what's the alternative? Does it have to specify GPS coordinates? Judge asks does s. 25 contemplate a "zone" that is "all areas"?

Judge says it says "in any area" and a "restricted zone of travel." It refers to "any area of woods," while proclamation refers to "the woods." Is that the same as an "area of the woods." NS says "any area of woods," means "all areas of woods." General language trumps specific.

NS argues that in order to provide reasonable guidance to the public, a general prohibition is the more rational approach to risk reduction.

Judge says there's a risk I could spontaneously combust. Yes, it's possible a hiker could create a fire by tripping and their phone sparks a fire as you mentioned. But you've got to have something better than that? NS says rocks could fall and start a fire.

Judge says: isn't the real thing you're saying that arsonists will start fires and the best way to keep arsonists out of the woods is to keep everybody out of the woods, so we're going to keep everybody out of the woods to ensure no one is setting fires?

NS says you can't draw these lines around who is and who is not a risk without completely imperiling the objective. NS argues that allowing commercial activities is a rational response covered by the purpose section in the statute.

Judge asks: does this mean if you got the permit to close the cottage, it will say, do X, Y and Z? NS says in those cases it's just comply with the rule. Others might say if you're using an ATV you have to have a water tank or a fire extinguisher.

NS says the decision was polycentric. Minister had to consider recreational activities and considered it's better to have a forest available for future recreation.

NS has spoken at length about the Charter of the Forest (1217). Judge says that if this case turns on the Charter of the Forest then things are truly bad. Court is over for the day.

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