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Posted - March 17, 2026 at 12:30 PM

Saved - March 17, 2026 at 6:15 PM

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I’m in Halifax this week as the CCF argues Nova Scotia’s provincewide ban on being in the woods was unreasonable and unconstitutional. Court has begun; we claim public interest standing for Nova Scotians, and that the minister acted ultra vires the Forests Act, violated s.7 by a vague, overbroad offence with possible jail, and ignored the Charter. We contrast “forests” vs “woods,” and scrutinize the zoning, timing, and record.

@JoshDehaas - Josh Dehaas

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 👇🏻 https://t.co/K0BDroCjHo

Video Transcript AI Summary

Josh LaHaz, interim litigation director for the Canadian Constitution Foundation, explains that the CCF is challenging Nova Scotia’s province-wide ban last summer on traveling into the woods as unreasonable and unconstitutional. He describes the case as very controversial. He notes the reaction to his warning that the ban violated Canadians’ rights and freedoms: hate mail accusing him of putting lives at risk, alongside a torrent of emails from Nova Scotians thanking him for standing up to vague, arbitrary, and overbroad measures. To many, the situation felt like the attacks on freedom experienced during COVID-19. People were willing to comply with reasonable measures to combat COVID-19 and protect the vulnerable, just as they complied with measures to prevent forest fires (burn bans and parking ATVs). But they questioned banning dog walking on urban trails, outlawing fishing from rocks on lake shores, and threatening $25,000 fines for attending a friend’s birthday party on rural property, noting none of these pose any fire risk. LaHaz argues that, in a time when taking a dog for a walk was illegal, the government was issuing permits for much riskier activities like forestry. He asserts that, like during COVID-19, the premier and the government did not think the travel ban through and did not even try to justify the decision despite its obvious impact on charter rights. He contends that every administrative decision affecting charter rights must be justified, transparent, and intelligible, justified in light of the facts and legal constraints. In this case, he says, the minister didn’t do any of that, nor did he turn his mind to the charter questions, which is why the CCF is defending rights and freedom to prevent a recurrence. LaHaz concludes by saying he’ll be live-tweeting all week on X at Josh DeHaas, with a summary later in the week after not reserving judgment.

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Full Transcript

Speaker 0: Hi, everybody. I'm Josh LaHaz, interim litigation director for the Canadian Constitution Foundation. I am here outside the law courts in a very rainy and windy Halifax, Nova Scotia where the CCF is arguing all week that Nova Scotia's province wide ban last summer on traveling into the woods was unreasonable and unconstitutional. Now this is a very controversial case. Last summer, when I wrote to the premier warning that this extreme province wide ban was violating Canadians' rights and freedoms, the reaction I got was intense. I got hate mail telling me that I was putting people's lives at risk, but I also got a torrent of emails from Nova Scotians thanking me for standing up to the government's vague arbitrary and overbroad measures. To a lot people, this felt just like the attacks on freedom that they faced during COVID nineteen. And just as Canadians were perfectly willing to comply with reasonable measures to combat COVID nineteen and protect the vulnerable, they were happy to comply with measures to prevent forest fires like following burn bans and parking their ATVs. But it just didn't make a lot of sense to many of you, me included, to ban dog walking on urban trails or outlaw fishing from the rocks on the shores of lakes or to threaten $25,000 fines for attending a friend's birthday party on their rural property. None of these things pose any fire risk. Adding insult to injury, at a time when taking your dog for a walk was illegal, the government was handing out permits for much riskier activities like forestry. The reality is that just like during COVID nineteen, the premier, the Houston government didn't think this travel ban through, and the evidence that we've gathered shows they didn't even try to justify their decision despite its obvious impact on charter rights. Aboriginal rights, the right to hunt and fish, mobility rights Every administrative decision that impacts charter rights needs to be justified, transparent, and intelligible and justified in in and, justified in light of the facts and the legal constraints. In this case, the minister didn't do any of that. He didn't even turn his mind to the charter questions, and that's why we're here today to defend your rights and freedom so that this doesn't happen again. I'll be here all week live tweeting for on x at Josh DeHaas, and we'll have a summary of this on not reserving judgment later this week. Thanks.

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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.”

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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.

@JoshDehaas - Josh Dehaas

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?

@JoshDehaas - Josh Dehaas

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.