The Charter Takes a Hike: Evely v. Nova Scotia (Minister of Natural Resources), 2026 NSSC 118

The interesting and important recent decision in  Evely v. Nova Scotia (Minister of Natural Resources), 2026 NSSC 118 is a very good example of what I have described as the “Doré Duty” in action. 

Under the Doré duty, where Charter rights or values are engaged by administrative action, the decision-maker must demonstrate that it considered the effect of its decision on relevant Charter rights or values and balanced this effect against its statutory objectives. Where the decision-maker has failed to discharge this duty, its decision can be quashed in judicial review proceedings. This was set out in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395, and recently reaffirmed in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31.

Here, the government of Nova Scotia had issued a blanket ban on walking in the “woods” during wildfire season. E went for a walk in the woods and turned himself into the police. Fine in hand, he sought judicial review.

The ban was made under s. 25 of the Forests Act:

25 (1) Whenever deemed necessary for the protection of the woods, the Minister may at any time by proclamation set aside for any period of time a restricted travel zone in any area of woods upon which no person shall enter for the purpose of travelling, camping, fishing or picknicking, or any other purpose, without a travel permit.

(2) A travel permit may be issued by the Minister, a conservation officer or other person authorized by the Minister.

(3) Subsections (1) and (2) do not apply to the owner or occupier of woods or the servants, agents or assigns thereof, conservation officers, surveyors and any other person designated from time to time by order of the Minister.

(4) A forest travel permit may be cancelled or suspended at any time by the Minister, a conservation officer or other person authorized by the Minister.

The proclamation made under s. 25 prohibited “entry into the woods for the purposes of travelling, camping, fishing or picnicking or any other purpose, without a valid travel permit in all counties in Nova Scotia”. As Campbell J explained:

The idea was that keeping people out of the woods would reduce or eliminate the number of fires caused by people. The logic is unassailable. Keeping everyone out of the woods would reduce the risk of fires caused by humans being in the woods. Each person may not themselves be a risk. Those who like Mr. Evely were not carrying anything that could ignite a fire would present a negligible risk. Dropping a cell phone that hits a rock and sparks a fire appears at least to be a fanciful example of a fire risk. But there can be no doubt that keeping everyone out of the woods reduced the risk. Narrowing the scope of the travel ban to prevent only arsonists or careless people from entering the woods would have been unrealistic (at para. 23).

A more sweeping interference with personal liberty is harder to imagine.

Campbell J correctly identified the threshold issue as whether Charter rights or values are engaged by an exercise of public power (at paras. 36-38). Given the scope of the ban, there was no doubt that there was an interference with mobility, as protected by s. 6 of the Charter. As the majority of the Supreme Court recently observed in Taylor v. Newfoundland and Labrador, 2026 SCC 5, “s. 6 as a whole is most coherent if a broad right to move freely is understood as underlying the more specific rights in both subsections” (at para. 65). Indeed, per Taylor, s. 6 protects the “foundational interest” to choose where one wants to be in Canada at any given time: “Freedom of movement, without constraint or coercion, is essential to individual autonomy, dignity, and self-realization. It lies at the heart of the Canadian understanding of a free and democratic society — a political tradition that does not curtail movement, impose curfews, or require people to carry identity papers in public” (at para. 67). Plainly, a blanket ban on walking in the woods interferes with autonomy and self-realization, something the common law tradition has long recognized (Evely, at para. 31). As “the travel ban limited where people could travel or be present and prevented them from going to places where they would have been permitted but for the travel ban”, the Charter was engaged (Evely, at para. 32).

The question then becomes whether the decision-maker considered the Charter in its decision-making process. Here, the Minister had failed this test:

Charter rights or values were engaged by the decision and there is no evidence that the Minister considered them. The decision maker’s reasoning is not found in a written decision. It is found in the documents that were placed before the Minister before the decision was made. And those documents make no reference at all to Charter rights or values. In imposing a travel ban in the woods in Nova Scotia, the Minister was making a decision that at least engaged with and likely limited mobility rights. People could no longer go where they once could. Under Doré, the Minister was required to consider how the decision to impose the travel ban would impact mobility rights. The record shows no consideration having been given to that issue. The rights of commercial users of the woods were specifically addressed. Accommodations were made for permits that would allow for those whose livelihoods depended on them being in the woods to access the woods. There was a reference to encampments within the woods. But there was no reference to the effect that the travel ban would have on the mobility rights of those who, like Mr. Evely, used the woods for other purposes (at para. 40).

The lesson here for decision-makers is the elementary one that in exercising public power, they should have due regard to the Charter. Evely is a nice illustration of how the Doré duty operates and where it might be useful. The Minister here was engaged in legislative-type action, where the danger of governmental tunnel vision is at its highest. With no parties to make submissions drawing attention to the grave effect of the blanket ban on autonomy and self-realization, it was incumbent upon the Minister to consider this effect. And all the Doré duty requires is that the Minister consider the Charter: it does not compel an outcome one way or another, it simply directs the Minister to an important consideration to weigh in the balance before taking a decision.

It is heartening to note that Campbell J recognized that the Doré duty operates independently of the violation of a Charter right. Here, there was also a good argument that the blanket ban violated s. 7. As one of the available penalties for non-compliance was imprisonment, the “liberty” aspect of s. 7 of the Charter was also engaged and probably violated by a vague and overbroad ban on walking in “the woods”.

This last point leads me to an observation about how the Doré duty is, in a sense, nothing new under the sun. Think of how a Canadian court prior to the Charter (or an English court prior to the Human Rights Act) would have addressed the lawfulness of the ban. Recall that s.25 allows the Minister to “set aside … a restricted travel zone in any area of woods…” A blanket ban on “entry to the woods” is arguably ultra vires s. 25, as the legislation insists that an “area of woods” be specified. In support of the conclusion of ultra vires, one could add (as common law courts often did) that legislative authority to restrict liberty should be narrowly construed or that the effect on individuals’ ability to go about their business was (at least) a relevant consideration for the Minister to take into account (see more here on different “modes” of rights protection).

True, a common law court without a binding human rights instrument to enforce might have suggested that the conclusion of ultra vires was compelled only by statutory language. But any account of pre-Charter cases like Smith & Rhuland Ltd. v. Nova Scotia, [1953] 2 SCR 95, and Roncarelli v. Duplessis, [1959] SCR 121 has to grapple with the “deep structure” of the analysis in these cases, which reflects an understanding that fundamental freedoms act as a limit on the legitimate exercise of public power (see also the classic pre-Human Rights Act cases of Congreve v. Home Office [1976] 1 QB 629 and Wheeler v. Leicester City Council 1985 UKHL 6). For example, in Smith & Rhuland, political affiliation was held not to be a relevant consideration in refusing to certify a trade union and in Roncarelli, cancelling a liquor licence to punish the holder for his political views was unlawful. In both of these instances, although formally speaking the conclusion was one of vires, in substance the analysis was based on the need for officials to respect the exercise of fundamental freedoms. Evely makes the same point, but puts it in Charter terms, as one would expect in a jurisdiction where human rights protections have been constitutionally entrenched.

For more sceptical views, see Mark Mancini and Jamie Sarkonak.

This content has been updated on May 9, 2026 at 20:05.