Charges were withdrawn Friday against two Ontario companies accused of illegally excavating more than a million tonnes of limestone from a shipping port in Prince Edward County.
In a Picton courthouse, government attorney Demetrius Kappos聽advised the court that the Crown would be intervening in a private prosecution launched by a group of residents against the companies over allegations they were operating a quarry without a licence on Picton Bay.
“In the Crown’s view, there is not a reasonable prospect of obtaining a conviction,鈥 Kappos told the court.
Last year, four Ontario residents launched the process for a rare private prosecution, arguing ABNA Investments Ltd. and 1213427 Ontario Corp. had violated Ontario’s aggregate laws. Namely, they聽accused the businesses of illegally digging up the shoreline at Picton Terminals聽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.聽
The companies had denied the allegations. Ben Doornekamp and Hendrik Doornekamp, both members of an Odessa, Ont., developer family, were named as officers of the companies.
鈥淎ll levels of government understand what we are doing and have no issues,鈥 Ben Doornekamp said in a January email to the Star.
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.
For years, members of the Picton community have voiced concern about the frequent blasting of the shoreline, the disruption to the residents and the environmental impacts.
Friday鈥檚 decision comes a few months after a justice of the peace decided the case could move forward and charged the two companies. A private prosecution is a legal challenge meant to give civilians access to the justice system when they believe law enforcement agencies have failed to act.聽Crown prosecutors have an obligation under the聽聽to intervene if they find there isn’t enough of a chance to convict the defendant.
Kappos asked to withdraw the charges Friday mainly because, 鈥渢he definition of quarry in the () does not include land excavated for a building or structure on the excavation site,鈥 and the companies鈥 work fits within that exemption. Kappos said in court the ministry has 鈥渃onsistently鈥 told the defendants of this and so a licence was not required.
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 continued. 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
- Mahdis Habibinia, Sheila Wang
An 聽is itself 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, relieves someone of liability if they can prove they reasonably relied on erroneous advice from an official responsible for enforcing that law.
Criminal defence lawyer Vanora Simpson, who is not involved with the case and spoke in general terms, noted the defence requires that defendants must have genuinely believed the advice and been transparent with the official overseeing the law about what they are doing and planned to do.
The decision Friday was met with frustration from those behind the private prosecution effort.
鈥淭his is f鈥攊ng nuts,鈥 said Doug Pollitt, a 海角社区官网mining analyst and one of the four residents who brought the case to court.聽
He said he believes the Crown鈥檚 decision stems from a misinterpretation of aggregate laws. Citing letters received through a freedom-of-information request, Pollitt argued the ministry granted the companies an exemption to excavate for the 鈥減rimary purpose鈥 of upgrading buildings or structures on the property, not to primarily make money selling limestone to different cities.
The Crown is 鈥渟anctifying this loophole,鈥 said Pollitt.聽
鈥淪omething very seriously went wrong at the ministry and there needs to be some sort of inquiry.鈥澛
Picton resident Bill Beckett, who was among those who pursued the private prosecution, said in a written statement that no buildings or structures are visible on the property,聽“just huge holes in the ground.”
Bill Beckett is a retired Picton resident who is among four individuals who pursued a private prosecution against Picton Terminals. He lives on Picton Bay.
Jilly MacIver/海角社区官网StarPollitt noted that aggregate laws are highly regulated because the stakes are steep.
鈥淲e can’t put the Picton cliffs back together again.鈥
Since at least 2020, the residents鈥 affidavits had said, 1.5 million tonnes of limestone aggregate 鈥 enough to build Yonge Street twice over 鈥 have been excavated. Picton Terminals and H.R. Doornekamp Construction Ltd., both with Doornekamp at their helm, have entered into various contracts valued at about $50 million to supply limestone to multiple municipalities across Ontario since 2017.
The biggest client appears to be the 海角社区官网Region and Conservation Authority, which signed contracts totalling about $30 million for limestone aggregate, according to TRCA records.
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.
According to correspondence obtained by the Star, Kappos had told the residents’ lawyer that for the past eight years the ministry has 鈥渇or the most part鈥 known what the businesses are doing.
Neither the ministry nor the Doornekamps responded to multiple requests for comment Friday.
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