Members of the agricultural community packed into a Charlottetown courtroom July 3 to witness what they hope was the final chapter in a three year legal fight by Sky View Farms and owners Alex and Logan Docherty.
The farm and its owners were charged under the Fisheries Act after a fish kill in Clyde River In 2016, following over 70 millimeters of rain that fell within less than an hour. On June 26, Provincial Court Judge Nancy Orr ruled in favour of a motion from defence lawyer Brandon Forbes, who argued his client's rights had been violated when federal and provincial investigators came on to his property without a search warrant. The judge ruled that evidence was inadmissible and when the case came back to court , the Crown wrapped up its case.
Forbes then asked for a directed verdict and Judge Orr ruled the Crown had not proven its case and found the farm and the father and son team not guilty. The proceedings will officially be over if the Crown does not appeal the verdict to the Supreme Court within 30 days.
Close to 40 producers turned out to view the verdict and offer support to the Docherty family, just as they did late last year when Brookfield Gardens was fined $15,000 for a Fisheries Act infraction following a 2014 fish kill. The company was originally found not guilty by Judge Orr but the Supreme Court ordered a new trial.
The Federation of Agriculture argued at that time for the provincial and federal governments to work with industry to find alternative measures to court proceedings at a time when a changing climate is resulting in more and more extreme weather events that are out of the control of producers.
"The farming community strongly supports environmental protection – and believes all people have an important role to play," Federation president David Mol told the media following the most recent court proceedings. "The farming community does not condone reckless disregard for the environment. We believe farmers, including Sky View Farms, put forward their best efforts to minimize or eliminate risk and harm to the environment."
Mol said he believes the agriculture community is being singled out for unfair treatment. Executive Director Robert Godfrey went even further, saying federal officials especially have been "aggressive" in prosecuting farmers under the Fisheries Act. He noted that in this case, the enforcement officers did not follow the rules. In the case of Brookfield Gardens, after the original not guilty verdict was handed down by the Provincial Court, a prosecutor was brought in from outside the province who recommended a fine in the range of $175,000.
"Extreme weather events will continue to challenge our laws, and our regulations while farmers will continue to find themselves defending their name and their business until things change," Mol said. "The Federation encourages both levels of Government to look at this case, learn from it, and put future resources towards working together to find ways to effectively deal with extreme weather events."
He promised the federation would be a "willing and eager partner" in finding the alternative measures the system desperately needs as we move forward. The long-time grains and oilseeds producer said the court room is not where these problems will be solved and "certainly not where the finite resources of both government and the farming community should be focused. Let’s fix this problem together."
The chair of the PEI. Potato Board said the charges were the result of a "once in several hundreds year event" that was out of the control of the Docherty family. Jason Hayden said the same rain resulted in the road to the Montague Wharf being washed out.
"When we see such images of property damage, often there is an outpouring of sympathy for the homeowner or business who has been the victim of these extreme weather events," the board chair said. "Instead for three years, this family farm – a victim of an extreme weather event, and in particular the father and son who were both charged, have had to go through hell as federal investigators and prosecutors with seemingly unlimited time and money developed a case against them. "
Hayden pointed out neighbouring farms also had their records reviewed by these investigators, and some of those farmers were subpoenaed for the court case. Despite the fact that Environment and Climate Change Canada knew about the extreme rainfall that day, federal officials in that same department proceeded with charges against one family.
The board chair said Island farmers have enacted many positive to combat soil erosion including improved rotations, the use of soil conservation structures and grassed waterways, increased use of cover crops in the fall…, "yet when climate change hits our farms, rather than receiving support via better weather forecasting, more funding for soil conservation structures, and so on, PEI farmers face charges. This does not seem to be the case in other parts of Canada, and it is regressive and regrettable. Hayden noted the federal and provincial governments allocate $300,000 per year for soil conservation structures and the 2018 funding was all gone six minutes after applications opened.
'That shows the strong interest that farmers have in investing in these expensive structures that will help keep our precious soil on fields during increasingly severe rainfalls, and it also shows that the available funding is woefully inadequate in terms of meeting the needs," he said. "We feel that our two levels of government need to recognize that these structures are strategic infrastructure that is needed for our agricultural sector in the face of climate change, and allocate more resources accordingly. "
He estimated several hundred thousand dollars were spent \on this court case adding "It would have been much more productive to invest those dollars in high risk watersheds rather than in the courts. We find it very hard to understand why family farms are fair bait for federal prosecutors, but towns or cities that repeatedly allow sewerage to flow into rivers and oceans, resulting in the closure of shellfish areas for weeks, are not charged or subject to harassment. When we ask about those situations, we’re told that it will be expensive to address those sewer overflows, and that those municipalities are working on solutions. "
"We do not wish to see fishkills on our province, nor do we condone them," he said "We are doing many, many things to prevent them. But when so much water comes down in a short period of time that highway culverts are eroded and roadways are damaged, farms are being held to standards that are unreasonable. "
He said producers are working with agronomists, soil and water engineers, integrated pest management specialists and others to do their best, and "we think alternate approaches are needed, along with increased funding for soil conservation going forward. When dead fish are found on the tops of bushes and in trees many feet higher than the normal stream height, it’s an indication that severe weather was involved. We ask for the improvements in farm practices to be recognized, and for the persecution of farm families that are harmed by severe weather to cease. "