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
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
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