A Crown prosecutor has moved to withdraw charges against two companies accused of illegally excavating more than one million tonnes of limestone from a shipping port in Prince Edward County.
On Friday in a Picton, Ont., courthouse, Demetrius Kappos, a prosecutor at the Ministry of Natural Resources, said the Crown would be intervening in a private prosecution previously launched by a group of residents against the companies over allegations they are operating a quarry without a licence on Picton Bay.
A is a rare legal challenge meant to give civilians access to the justice system when they believe law-enforcement agencies have failed to act.
“I’m asking the charges be marked withdrawn,” Kappos said in court. “In the Crown’s view, there is not a reasonable prospect of obtaining a conviction.”
The decision comes a few months after a Justice of the Peace decided the private prosecution application should move forward, and issued charges to ABNA Investments Limited and 1213427 Ontario Corp. for running a quarry without a permit or licence from the province.
A Crown prosecutor with the Ministry of Natural Resources moved to withdraw charges against ABNA Investments Limited and 1213427 Ontario Corporation in a Picton courthouse on Friday.
Mahdis Habibinia/海角社区官网StarThe companies have denied the allegations.
Last year, four Ontario residents launched the process for a private prosecution, arguing the companies had violated Ontario’s aggregate laws. Namely, they accused the Ontario business of illegally digging up the shoreline on Picton Bay for at least five years to sell limestone all over the province 鈥 including to strengthen Toronto鈥檚 waterfront near Tommy Thompson Park under a multimillion-dollar contract.
The property in question is a 25-hectare piece of land on White Chapel Road with about 1,200 metres of shoreline on Picton Bay of Lake Ontario.
Ben Doornekamp and Hendrik Doornekamp, both members of an Odessa, Ont., developer family, were named as officers of the companies accused. They have denied all the allegations.
鈥淭his is f—-ing nuts,鈥 said Doug Pollitt, a 海角社区官网mining analyst and one of the four residents who pursued the case, in an interview about the Crown’s decision. 鈥淭hey might as well be ripping up the (Aggregate Resources Act).鈥
Kappos said in court on Friday that the definition of a quarry under the does not include land 鈥渆xcavated for a building or structure on the excavation site.鈥 The ministry has “consistently” told the defendants that the work fits this exemption and so a licence was not required, he said.
Bill Beckett is a retired Picton resident who is among four individuals who pursued a private prosecution against Picton Terminals.
Jilly MacIver/海角社区官网Star鈥淚f the prosecution were to continue, the first hurdle would be to prove that the work did not fit within the exemption,鈥 Kappos said. 鈥淓ven if that hurdle could be overcome, the defendants would have very compelling evidence that any resulting legal error was induced by the repeated assurances from (the ministry), thereby amounting to an officially induced error.鈥
An 鈥溾 is a rare legal defence and an exception to the rule that ignorance of the law is not an excuse for breaking it. The defence, if made successfully, strips someone of liability for breaking the law if they can prove they reasonably relied on erroneous advice from an official responsible for enforcing that law.
According to correspondence obtained by the Star, Kappos told the residents’ lawyer that the ministry has known what the businesses are doing聽鈥 鈥渇or the most part.鈥
- Mahdis Habibinia, Sheila Wang
Ministry of Natural Resources spokesperson Mike Fenn told the Star in November that, based on site visits and information given to them, Picton Terminals鈥 operations didn鈥檛 amount to a quarry.
In December, Pollitt and retired Picton resident Bill Beckett, along with two other Picton residents, submitted affidavits, drone footage, Google Earth history images and satellite imagery to a Justice of the Peace in their pursuit for a private prosecution.
Justice Christopher Peltzer reviewed the evidence and decided in January that the prosecution should move forward, but did not determine the merits of the case. A court officer was instructed to summon the defendants to court for an appearance on March 7.
The property in question is a 25-hectare piece of land on White Chapel Road with about 1,200 metres of shoreline on Picton Bay of Lake Ontario.
Images supplied via court recordsWhat was supposed to be the defendants’ first appearance 鈥 against the backdrop of a county courthouse packed聽with dozens of local residents who are opposed to the shoreline business 鈥 turned into a quick adjournment to May 16, because an officer had failed to summon the defendants. The summons was eventually issued on March 14.
Crown prosecutors have an obligation under the to intervene if they find there isn’t enough of a chance to convict defendants.
The Star has reached out to the Doornekamps and the Ministry of Natural Resources for comment.
More to come.
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