Charges were withdrawn Friday against two Ontario companies accused of illegally excavating more than a million tonnes of limestone from a shipping port in Prince Edward County.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 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,” 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 accused the businesses of illegally digging up the shoreline at Picton Terminals for at least five years to sell limestone all over the province — including to strengthen Toronto’s waterfront near Tommy Thompson Park under a multimillion-dollar contract.
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.
“All levels of government understand what we are doing and have no issues,” Ben Doornekamp said in a January email to the Star.
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’s decision comes a few months after the 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. Crown prosecutors have an obligation under the Crown Attorneys Act 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, “the definition of quarry in the (Aggregate Resources Act) does not include land excavated for a building or structure on the excavation site,” and the companies’ work fits within that exemption. Kappos said in court the ministry has “consistently” told the defendants their work fits within the “building or structure” exemption and so a licence was not required.
“If the prosecution were to continue, the first hurdle would be to prove that the work did not fit within the exemption,” Kappos continued. “Even 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.”
An officially induced error 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.
“This is f—ing nuts,” said Doug Pollitt, a Toronto mining analyst and one of the four residents who brought the case to court.
He said he believes the Crown’s 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 “primary purpose” of upgrading buildings or structures on the property, not to primarily make money selling limestone to different cities.
The Crown is “sanctifying this loophole,” said Pollitt.
“Something very seriously went wrong at the ministry and there needs to be some sort of inquiry.”
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, “just huge holes in the ground.”
Pollitt noted that aggregate laws are highly regulated because the stakes are steep.
“We can’t put the Picton cliffs back together again.”
Since at least 2020, the residents’ affidavits had said, 1.5 million tonnes of limestone aggregate — enough to build Yonge Street twice over — 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 Toronto 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’ operations didn’t 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 “for the most part” known what the businesses are doing.
Neither the ministry nor the Doornekamps responded to multiple requests for comment Friday.
