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We often report on convictions under the Fisheries Act. It is less often that we report on acquittals. In the last several months, two cases related to charges against farmers in PEI under the Fisheries Act were dismissed. The cases turned on whether the farmers, contrary to section 36(3) the Act, permitted the deposit of a deleterious substance in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the substance may enter any such water.

In both cases, observed fish kills after heavy rain fall resulted in investigations of nearby farms. Pesticide run-off from agricultural fields was alleged to have entered into waters known to have fish. In the case against Brookfield Gardens Inc., over 1155 dead fish were collected. In the other, against Denton Ellis and his corporation, D.S. Ellis Inc., 123 dead fish were recovered.

To prove the offence under the Act, the Crown need not prove the substance deposited actually harmed the fish or fish habitat. In these types of regulatory offences, known as “strict liability offences”, the prosecution must prove “beyond a reasonable doubt” that the accused committed the Act. The prosecution does not however need to prove that the defendant intended to commit the Act in question. After proof of the offence is established, the burden of proof shifts to the defendant who can successfully defend charges if it can show, on a “balance of probabilities”, that it acted in a duly diligent manner. That is, an acquittal will be entered if the defendant can show it took all reasonable care to prevent the offences from being committed. While it sounds straightforward, historically, this has been an extremely difficult defence to show.

In the Brookfield decision, the court concluded that on the evidence before it, it could not determine beyond a reasonable doubt that the pesticides complained of actually came from Brookfield. As a result, the Crown failed to prove that the act had been committed at all. This is an uncommon result and may speak more to inadequacies in the investigation than anything else.

The court further concluded that even if the Crown had proven the offence, Brookfield nonetheless took the necessary steps to establish that it had acted with due diligence. Brookfield had complied with the provincial legislation requiring the establishment of buffer zones between watercourses and fields where certain crops are cultivated; it complied with the training for applying pesticides and followed the instructions set out on the labels of the products. Prior to application, an officer of the company checked the rain forecast, and no rain was forecasted.

Interestingly, Brookfield had not complied with provincial requirements related to the maximum allowable slope of fields where pest control products can be applied. For that, Brookfield had already been convicted (one portion of their field had an elevation greater than the 9% permitted). However, the court concluded that the defence of due diligence did not require perfection and concluded that Brookfield did exercise all reasonable care. The Brookfield decision is now under appeal and the appeal is expected to be heard sometime in September or October.

In the case against Denton Ellis and his company (“Ellis”), the court concluded that the Crown had proven the act of the offence—that is, that the pesticide chlorothalonil had entered into nearby Barclay Brook from the Ellis property—but that Ellis had exercised due diligence. The court had heard evidence that Ellis had complied with, and in fact exceeded, all applicable provincial legislation. Ellis had also planted more than 2,000 trees in the area, used special equipment to cause less stress on soil, and taken other preventative measures. Further, Ellis had repeatedly checked weather updates on the spraying days, and consulted with his product supplier prior to applying the chlorothalonil when the forecast called for an extended period of rain. Despite all of these precautionary measures, chlorothalonil still ended up in Barclay Brook.

These cases show that it is important to establish a due diligence defence by taking the following into consideration: industry standards, relevant legislation, licenses, plans, permits, preventative systems such as environmental management systems (EMSs), training, internal and external audits, risk assessments, alternative solutions to prevent the incident, like less harmful products, promptness in responding to the problem, efforts to mitigate and remediate if necessary and response to regulatory officials.

The Brookfield decision has not been reported online. You can download a copy of the decision here. No written reasons were provided or are expected in the Ellis prosecution.

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