A tampered wetland near Stittsville is the subject of an ongoing court case between a property owner, a contractor and the local conservation authority.
The issue dates back to February 2012, when the Mississippi Valley Conservation Authority (MVCA) received a tip that something was environmentally amiss with the property along Rothbourne Road near Highway 7.
When the MVCA regulations enforcement officer, Andy Moore, went to check out the property he discovered an excavator at work beside a pile of dark soil. He noted that the site had been disturbed within the 120-metre regulation limit of a provincially significant wetland — part of the Goulbourn Wetland Complex.
Development or site alteration near water bodies within the Mississippi Valley requires a permit and neither the landowner Rodolfo Mion nor his contractor Peter Delhey had one. A notice of violation was sent to Mion and Delhey but the work continued.
On May 8, 2012, the MVCA charged Mion and Delhey under the Ontario Conservation Authorities Act for interference with a wetland without written permission, development within the 120 metre regulated area of a provincially significant area and interference with the existing channel of a watercourse.
If found guilty, they could each face a fine of up to $10,000 or a prison term of up to three months. (The court can also order the convicted to remove, at that person’s expense, the development and to rehabilitate the watercourse or wetland.)
After extensive conversations and failed attempts to settle out of court the issue was brought to trial on Oct. 29 at the Ottawa Provincial Offenses Court.
The first day at court on Thursday had a rocky start. The defendants, Mion and Delhey, didn’t show up. The defence lawyer, Terry Green, is legally blind and was without his assistant (who Green said was ill), who had all of the case files in Smiths Falls. The court adjourned early at 10:30 a.m to try again the following day.
On Friday, Oct. 30 only the defendant, Mion, was present. Green’s assistant was still absent so Mion took the role of his lawyer’s assistant by taking notes and explaining the maps and photos in question. Unfortunately the case files were still in Smiths Falls. Judge Girault Louisette noticed Green’s lack of material and asked if he still wanted to continue.
“It’s been dragging on a long time. Mr. Mion would like to get it over with,” Green said.
The defendants pleaded not guilty to the three charges, with Green speaking for Delhey.
The first witness to take the stand was Moore, the enforcement officer for the MVCA, who had spoken directly to Mion and Delhey to warn them about the unauthorized work being done on the wetland.
The prosecutor, Helmut Brodmann, asked Moore to describe the photos he took of the property on Feb. 17, Feb. 28 and March 9. Moore then pointed out photos of an excavator working within the wetland without permission from MVCA.
He explained how he sent notices of violation on Feb. 28, 2012 and made contact with Delhey on March 12. Moore told the contractor that he needed a permit to continue his work. After a few attempts Moore eventually spoke to Mion on April 27 to warn him of permission requirements.
When Moore returned to the property on May 8 he said that work was still taking place in the wetland area.
The defense argues that it was working within the authority of the Department of Fisheries and Ocean (DFO). Mion altered the original water channel that ran across his property to divert water through a new channel along the boundary of his property.
The alteration to the water channel, which disturbed fish habitat, led the DFO to write a letter on June 14, 2010 to the property owner to complete a voluntary restoration plan and block the upstream end of the original channel.
Green also stated that according to the letter the property owner had to maintain sediment control and work had to be done to achieve that.
Moore pointed out that the DFO letter specified one issue, blocking one end of the drain, and that it was “obvious that a further violation occurred on wetland area.”
After lunch, the prosecution presented an expert witness, Shaun Thompson, a former district ecologist for the Ontario Ministry of Natural Resources and Forestry, who mapped out this particular wetland complex in 2003. Thompson took the stand and explained to the court why the area in question was in fact a wetland.
Thompson referred to the photos Moore took and identified cattails and the dark brown soil as a characteristic of wetlands. He also examined the aerial photos taken by the City of Ottawa over Mion’s property and pointed out standing water and scarring from wheels.
The day ended before the defense could present its case and the court scrambled to schedule another trial date before the new year. Nov. 30 was tentatively scheduled and Green said he plans to call on two witnesses.