A complicated legal battle that involves a construction company of North Bay accused of damaging a threatened species habitat has come to an end, for now.
Last week, the Ontario Court of Appeals rejected the attempt of the province to reopen the government’s case against Limited Consolidated Housing.
It is a result of the crown lawyers who feared to damage their ability to prosecute future cases under the law of endangered species.
The ruling effectively defends the acquittal of the company of last year, which was declared guilty in 2022 for damaging the turtle habit of a softness near Circle Lake through the use of heavy machinery to eliminate vegetation.
The province argued that the coasts of Lake Circle wetlands were a habitat for soft turtles, which use the space to regulate their temperature, nest and hide from predators.
The 2024 appeal of the case focused on what evidence it can be used to evaluate whether or not a threatened species lives in a given area at a given time.
The company argued that there was no ‘direct evidence’
The construction work that damaged the area on the shore of Lake Circle occurred in 2018.
The company knew that the widest area of Lake Circle could be a habitat for soft turtles before doing the job. Employees had been attracted to a presentation with the Ministry of Natural Resources in 2017.
Throughout the judicial procedures, the company said there was never an official warning that the specific area that disturbed in 2018 was home to the soft turtles.
To prove that space was a habitat under the law of endangered species, government lawyers presented testimony of an expert biologist and images of the soft turtles taken in Circle Lake in 2007, 2017 and 2022.
The company argued that there had not been a direct sighting of the turtles or evidence of its presence in the specific area that was disturbed, in or around the time the crime was committed.
Document used by biologist is not “legal”
The government expert who provided testimony before the Court was based on a document from the Ministry of Natural Resources describing the habitat of soft turtles.
The company’s lawyers argued that the document only showed that the disturbed area had the potential to be a habitat and did not show that it was one.
They also argued that it should not be based on evidence, since it is not a legal document. The judge of the Court of Appeals agreed with that point.
The Superior Court of Ontario ended on the company’s side during the appeal last year. The judge questioned how much evidence of sightings should weigh considering that they occurred before and after the crime, and not in the exact area where the construction work occurred.
Ontario’s appeal was rejected last week
Then, the province tried to appeal that, asking a third judge to take a look at the case. In order to litigate again, the province would have had to have shown that the previous judge made mistakes and the case has a broader public interest in the result of the appeal.
The third judge did not believe that the most broad public interest case, despite the concerns of government lawyers that would establish a precedent: that the earth can only be found as a habitat when there is direct evidence that the species used it At the moment. of the alleged crime.
“The decision of the appeal judge is very specific to the facts, and it would be difficult for a reader who does not have access to the complete transcription to determine exactly why the evidence in this case was insufficient,” says the decision.
“He also made his decision orally, and he still doesn’t seem reported,” he continues.
“For both reasons, the perspective of the courts of first instance that deal with their decision as establishing a legal requirement that direct evidence is always required […] It seems remote. “
Gary Wheeler, a The spokesman of the Ministry of Environment, Conservation and Parks of the Province, told CBC that “he is currently reviewing any potential impact derived from this decision.”
Disconnect between science and law: defender
Katie Krelove Ontario Championer for The Wilderness Committee, a national conservation charity organization, said environmental groups are also evaluating the impacts of this decision.
“Resources are needed for the province to look for these cases; they would not pursue them if they were not quite sure that there had been a violation,” he said.
Krelove believes that having to provide evidence that the species lived in the habitat that was damaged, to have a strong case, will establish a very high standard.
“It is very difficult to gather evidence of the presence of endangered species. Presence is needed in the earth and waters,” he said. “That is why the province often depends on the photos taken by residents.”
Krelove said that in general, the ruling shows a disconnection between science and law.
“If the soft turtles were seen in the area before, and they were there later, then there were the year of the crime too.”
