I was in the Picton courthouse again this past Friday. Picton Terminals was to face charges of operating a rock quarry without a license. They had been told, I understood, that they must appear. 

But they did not appear. They did not have to. 

The Crown, acting for the Ministry of Natural Resources, had advised them it would intervene in the case to call it off. 

And it did. The Crown explained to the judge that the Ministry had given Picton Terminals permission to run an illegal rock quarry for the last eight years, so it would be a bit rich to turn around now and prosecute them for it. 

Yes, this was the reason. It is called the “officially induced error defense.” Like a rare and daring chess move, when it comes into play it is a bit astonishing. It’s not generally successful. 

In assembling their case, Picton residents Doug Pollitt, a mining engineer and financial analyst, and retired Picton resident Bill Beckett, submitted sworn affidavits alongside Google Earth surveillance history and drone footage, to show the sheer size and extent of the quarrying operations at PT. 

Their argument was simple: the definition of a quarry turns around the purpose of the quarrying. If rock must be excavated to build structures to support shipping, fine. That’s the primary purpose. Not quarrying. Shipping.

But the evidence suggests that the primary purpose of the past eight years of excavation at the Terminals was to sell quarried limestone for a profit. The four Picton residents who brought a private prosecution againt the company have evidence that ABNA Investments was paid $50 million over those years for limestone aggregate. They estimate actual sales may have been closer to $100 million. 

That means, they argue, the primary purpose of the excavation was financial, for the sale of aggregate. Picton Terminals must therefore be considered a quarry under the Aggregate Resources Act. 

It was enough to convince a justice to move the case forward to a hearing. And so here we were. But, as I said, a hearing never happened. 

“We have decided that the Crown must intervene and withdraw the charge because there is no reasonable prospect of obtaining a conviction,” said prosecutor Demetrius Kappos.  

“The Defendants are charged for operating a quarry without a license contrary to the Aggregate Resources Act. Of critical importance, the definition of “quarry” in the Act does not include land ‘excavated for a building or structure on the excavation site’.

“Excavation of limestone from the Defendants’ property has been occurring for about 8 years and the Defendants have, for the most part, informed the Ministry of Natural Resources about the work they were doing. In response, the Ministry has consistently told the Defendants that the work fits within the ‘building or structure’ exemption and therefore an ARA licence was not required.  

“That message was conveyed to the Defendants in 2016, 2018, 2020, 2021 and 2023. The Ministry also conducted a site visit in 2022. 

“The prosecution’s first hurdle would be to prove that the work did not fit within the exemption, which is contrary to MNR’s stated interpretation of the exemption.  

“Even if that hurdle could be overcome, the Defendants would have very compelling evidence that any resulting legal error was induced by the repeated assurances from MNR, thereby amounting to a defence of officially induced error.  

“In our view there is not a reasonable prospect of obtaining a conviction. In these circumstances, the Crown has determined it is in the public interest that the Crown intervene and withdraw the charge.”

Rodney Gill, the lawyer for the Picton residents who brought the case against Picton Terminals, noted simply, in correspondence obtained by the Gazette, “if all of this excavation was related to construction of buildings or structures, there would be more buildings and structures on the property.” 

The residents who brought the suit were appalled at the “officially induced error” defense. Understandably. It contravenes the basic principle that not knowing the law is not a defense against breaking it. There is a very high bar to reach to successfully employ the “misled into breaking the law defense,” and they do not believe it has been met.

The permission letters MNRF sent to Picton Terminals that have been made public, and which exempt the Terminals from the Aggregate Resources Act, note clearly that the exemption was restricted to quarrying activities directly related to building structures required for shipping.

“An ARA license will be required if excavation continues after construction is completed or if additional areas or materials are excavated beyond what is necessary,” the letters warn. 

The case against the Terminals contends that if the owners of Picton Terminals  excavated rock for other reasons, such as selling it for tens of millions of dollars, and did not clearly state that to MNRF, then no “officially induced error defense” could come into play. 

Instead, they believe that the Terminals deceived the Ministry of Natural Resources about the full extent of its quarrying. And the Ministry should prosecute. 

One key fact is this: the Ministry has refused to release the letters that came from the Terminals, the letters that detail the extent and purposes of its quarrying over eight years. Those would clear up much. But they have not been disclosed. 

The judge presiding on Friday was Christopher Peltzer. He noted that withdrawing the charge of operating an illegal rock quarry was within the Crown’s purview, but asked, “are they still excavating?” 

The crown, Mr. Kappos, said he did not know. “If they continue to quarry,” pressed the judge, “will they still be given exemptions [from the Aggregate Resources Act]? Are any limits going to be placed on their activities?” 

Mr. Kappos had no answers to these questions. “I can’t speak definitively about future activities,” was all he said. 

He wasn’t there to answer questions. He was there to say they would not be answered.

Ed Note: The text has been updated to correct the role of the Judge Christopher Peltzer in the decision to move the case to a hearing.