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Chris Selley: Provinces don't need the notwithstanding clause to stomp on our Charter rights

Governments at least have to consider Canadians' basic rights when making policy, says the Nova Scotia Supreme Court

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In August of last year, the Nova Scotia government enacted a ban on going into the woods — any woods, anywhere on public property, for any reason — on pain of a $25,000 fine, because of extreme wildfire risk. To many Canadians, it seemed more than a bit bonkers on its face, never mind taking into account the exceptions.

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On Friday, Justice Jamie S. Campbell of the Supreme Court of Nova Scotia found the policy to have been unreasonable, arguing the province’s then natural resources minister, Tony Rushton, failed to consider Canadians’ constitutionally protected mobility rights.

Chris Selley: Provinces don't need the notwithstanding clause to stomp on our Charter rights Back to video

Now, about those exceptions. Perhaps most famously, the government took no firm action to remove homeless encampments from otherwise off-limits areas, despite the notoriously high fire risk they pose, and indeed despite at least one wildfire that summer being suspected of starting at such an encampment.

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Another exception was the forestry industry, which was issued “blanket travel permits” — even as some operators opted to down tools, the Halifax Examiner reported, for fear their heavy machinery might start a fire. So, it was crucial for everyone in Nova Scotia to alter their lives for the greater good … but not if it impacted commerce.

There were also no restrictions on walking through the woods on your own private land, but on no account could you have guests over for a ramble. That would be dangerous.

The ban seemed to be popular, and many Nova Scotians passionately defended it, in the same way many Maritimers stridently defended the “Atlantic Bubble” during the pandemic — later upheld by the Supreme Court as a reasonable infringement on mobility rights — against similar criticisms.

“My sense is that Nova Scotians will mostly think (the ban is) a good idea because if you ban only risky activities … that gives people a licence to go in the woods and … do stupid goddamn things in the woods and then we’ll have a fire,” Nova Scotian journalist Stephen Maher told The Hub, and by and large he was proven right.

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“My riding had 20,000 people evacuated two years ago, 300 homes burned and by sheer luck no one died. Fire burn restrictions were on then,” former Conservative MP Rick Perkins (South Shore—St. Margarets) wrote on social media. “And while houses burned people still set illegal outdoor fires.”

“And yes people walking and littering cause fires,” Perkins added. “The two fires that burned 300 homes were man-made fires that spread during a ban. I don’t want to see that happen again this summer. Go to the beach instead.”

(For the record, the Halifax Chronicle-Herald provided the following examples of how “walking and littering” might cause a fire: “metal walking poles … could make contact with a rock, causing a spark”; and “tossing, breaking or uncovering a glass (or plastic) bottle may produce a lens effect that focuses the sun’s rays and starts a fire.” Feel free to roll your eyes.)

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I’m not aware of any public polling done on the woods ban, but Premier Tim Houston’s Progressive Conservatives didn’t noticeably suffer for it: In September, Abacus Data found the party had 52 per cent support, within the margin of error of its previous findings in May.

So you might say it’s a win for civil rights. But assuming Nova Scotia doesn’t successfully appeal this decision, no one will face any consequences for having shrugged away Canadians’ mobility rights, which are so fundamental they aren’t even subject to override by the notwithstanding clause.

It is an interesting dynamic.

Perhaps the strangest argument federal government lawyers presented to the Supreme Court last month, with respect to Quebec’s law governing certain civil servants’ religious garb and symbols, was that because the notwithstanding clause requires the legislature that invokes it it to re-enact it every five years, the clause cannot have been intended to nullify (or avoid) judicial oversight forever. It’s endlessly circular reasoning, and simply incorrect. Quebec has invoked the notwithstanding clause on several occasions and then let it lapse. It could well do so in the future on civil servants’ attire.

But if the argument against the notwithstanding clause is that it causes intolerable and irremediable harm, in this case to religious minorities in Quebec, how can Canada’s political class be indifferent to an infringement of Canadians’ basic rights that’s literally irremediable?

The summer of 2025 is over. People weren’t allowed to walk in the woods. The courts say it was unreasonable. Nothing will happen to anyone. And most Canadians, I suspect will shrug.

Justice Campbell had some wise words for the shruggers. “To people who were facing the crisis in the forests of Nova Scotia in the summer of 2025 and needed people to act sensibly and just stay out of the woods, quotes from the Supreme Court of Canada about Charter rights will undoubtedly ring hollow,” he wrote in his ruling.

“But if the rights of individuals are not safeguarded in those circumstances, they can be eroded in a way that eventually affects everyone. Experience now tells us that the erosion can happen in unexpected places at an unexpected pace.”

National Post cselley@postmedia.com

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