Farmers rally, as one of their own found not guilty of charge related to fish kill

Island farmers packed a Charlottetown courtroom Wednesday where a case involving a fish kill charge against a farmer and his company came to a sudden end.

'We find it very hard to understand why family farms are fair bait for federal prosecutors'

Farmers rally outside provincial court in Charlottetown Wednesday. (Brian Higgins/CBC)

Island farmers packed a Charlottetown courtroom Wednesday where a case involving a fish kill charge against one of their own, came to a sudden end.

Well-known Island farmer Alex Docherty was found not guilty, after the judge ruled fisheries officials failed to get a search warrant when they went on his property following a fish kill on the Clyde River in July 2016.

The ruling, midway through what would have been a lengthy trial, brings to an end a three year series of legal battles for Docherty.

The case had become a rallying point for frustrated Island farmers, who see a double-standard in the enforcement of environmental law. Farm leaders addressed a group of several dozen farmers who gathered outside the courthouse following the ruling.

"We find it very hard to understand why family farms are fair bait for federal prosecutors," said Jason Hayden, chair of the P.E.I. Potato Board. "But towns and cities repeatedly allow sewage to flow into rivers and oceans."

The federal prosecutor conceded his case was lost, following the judge's search warrant ruling, and supported Docherty's request that provincial court Judge Nancy Orr issue her direct verdict, exonerating Docherty, without hearing any further testimony.

Docherty's adult son, Logan, and their business, Skye View Farms Ltd. of Elmwood, were also found not guilty. They were charged under the federal Fisheries Act. The charge stated the farm allowed a substance deleterious to fish, in this case pesticides, to enter the river.

Alex Docherty and wife, Valerie Docherty, outside court Wednesday. (Brian Higgins/CBC)

Docherty's lawyers, Brandon Forbes and Brendon Hubley, had intended to argue the pesticides entered the river because of heavy rain, not because of a problem with Docherty's farming practice. They'd assembled evidence, not presented in court, that about 70 millimetres of rain fell on Docherty's farm in the space of a few hours on July 24, 2016 — the equivalent of a 1 in 700-year rainfall event.

"When you have provincial culverts overwhelmed and highway damage, as we saw that day, you can't hold a farmer responsible for something he has no control over," said Forbes after court. "[It's] an act of God and it's one where the landowner couldn't possibly have controlled the situation."

Malpeque MP Wayne Easter attended court in a show of support for Docherty and the farm community.

"There's one factor missing in this case on the part of the fisheries officers, and that's common sense," said Easter. "Governments and farmers and communities working together have to find a better way rather than putting people through a court system like this."

Jason Hayden, chair, P.E.I. Potato Board, speaks to farmers outside court. (Brian Higgins/CBC)

Farm leaders and government are now looking at putting together a task force to examine how environmental protection and enforcement is carried out, according to Hayden.

"We estimate that several hundred thousand dollars have been spent to date on this case. It would have been much more productive to invest those dollars in high-risk watersheds rather than in the courts," said Hayden.

Docherty feels the court battle has cost him customers and tarnished the reputation of Island agriculture.

"We lost a fairly significant export deal," said Docherty. "They wanted us to explain why our own government was taking us to court." 

Two years ago, Docherty was fined $1,000 under provincial legislation in relation to the fish kill investigation. Investigators found Docherty had allowed his pesticide applicator's licence to expire.

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