Fish kill appeal dismissed

Judge upholds lower court decision that evidence inadmissible

A P.E.I. Supreme Court judge has dismissed an appeal of a lower court decision to exclude evidence in a fish kill case.

Skye View Farms Ltd., Alex Docherty and Logan Docherty were charged in 2018 with a violation of the Fisheries Act after torrential rain fell within a few hours in the area in July 2016.

Provincial court Judge Nancy Orr acquitted them after ruling that evidence the Crown presented was inadmissible.

The Crown appealed the decision to exclude the evidence, and in a recent decision, P.E.I. Supreme Court Justice James Gormley said he found no cause to interfere with Orr’s ruling.

In July 2016, provincial environment officers and federal fisheries officers went to the site of a fish kill in the Clyde River near Skye View Farms.

A later report from UPEI’s climate research lab noted more than 75 millimetres of rain from a localized storm fell in fewer than two hours on the day of the fish kill.

The Crown argued Orr’s decision was flawed when she ruled fisheries officers needed a warrant.

Fisheries officers collected evidence from Skye View Farms’ property without a warrant and the Crown argued it was as part of an inspection before an investigation began.

The Crown argued fisheries officers did not require a warrant to do an inspection and didn’t have enough information at that time to apply for one.

It was only after receiving a report about samples sent for analysis that an investigating fishery officer had grounds to believe an offence had been committed, the Crown argued.

In Gormley’s decision, he wrote that he found no reason to criticize or overturn Orr’s conclusions in deciding the defendants’ Charter rights were breached.