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Burke’s wind farm case tossed by province

Concerned well owner Christine Burke’s second day in court took place in a shorter time span than her first one two months ago.

And there won’t be another. At least not in regard to her charges against several wind turbine companies, a provincial ministry and its cabinet minister.

That’s all thanks to the Attorney General’s office, who stepped in Oct. 30 at Provincial Offences Court to take over the case.

Brian Wilkie, the AG’s representative in the courtroom, immediately withdrew all charges under the Environmental Protection Act (EPA) against Ontario Environment Minister Jeff Yurek, the Ministry of the Environment and three industrial wind companies with projects in Chatham-Kent – Pattern Energy Group, Samsung Renewable Energy Inc., who operate the North Kent Wind 1 and 2 projects in the former Dover and Chatham townships, and Engie Canada Inc. which operates the East St. Clair wind farm.

Mere minutes after the Justice of the Peace took his seat, Wilkie made his announcement that left rural homeowners in attendance with well issues stunned, and Burke in tears.

In the Aug. 14 court appearance, Wilkie asked the court for an adjournment for 60 days to review the information surrounding the case, which was put forward by Burke’s lawyer, Eric Gillespie, of Toronto. On Oct. 30, Wilkie said he reviewed the material and made recommendations to the Crown.

“Based on the review, I’ve been instructed to intervene and also to withdraw the charges,” he said.

Wilkie added the belief is there is too little likelihood for a conviction.

“The allegations are that the wind farms north of Chatham contaminated the well water,” he said. “Our conclusion was that there wasn’t sufficient evidence. If we were to go to court, we would have to prove beyond a reasonable doubt that was the case.”

Outside the court, Wilkie added, “There wasn’t sufficient evidence to connect the wind farms to the wells.”

Nearby, Burke was in tears.

“We’re moving forward with our lawyer to pursue other options, and that’s all I’m going to leave it at,” she said, and declined further comment.

The decision did not sit well with other members of the public who attended the proceedings. One man looked at the Provincial Offences Court signage and muttered, “Kangaroo Court of Ontario.”

It’s an abrupt ending to Burke’s efforts through this legal route. In mid-July, Burke, with the assistance of Gillespie, took her plight to an Ontario Justice of the Peace who determined there were “reasonable and probable grounds” to bring EPA charges against Yurek, his ministry and the turbine companies.

Burke, a well owner in the East St. Clair wind farm project area, brought the complaint to the courts.

Following Wilkie’s request for an adjournment on Aug. 14, Gillespie and Burke remained hopeful and confident.

The lawyer said at the time it was common practice for the Ministry of the Attorney General to review all private prosecutions in the province.

“They can chose to participate; they can choose to not participate and allow us to conduct the prosecution, which has happened in cases we’ve conducted in the past; or they can choose to say, ‘We think these matters should be withdrawn,’” Gillespie said after that first court appearance. “It’s entirely their discretion.”

He added at the time the latter course is not something he has often seen.

There is a limited opportunity to appeal.

“It is possible to appeal the decision in a different forum. But that would be a decision that could only be made after we see what their rationales are,” Gillespie said back in August.

In preparing for this case, he said Burke had compiled more than 2,000 pages of disclosure material in the case.

According to court documents obtained by the media, the three respondent companies were charged under the EPA with “unlawfully discharging contaminants, including black shale and potentially hazardous metals into the natural environment in an unlawful manner that caused, or is likely to cause, an adverse effect.”

Both the Ministry of the Environment and the minister had been charged for allegedly “failing to take all reasonable care to prevent the installation and operation of the wind turbines” at the wind farms, which resulted in the well water contamination.

According to Gillespie, any person residing in the province can launch a private prosecution by appearing before a justice of the peace and swearing under oath about an alleged violation of the law, including offences under the EPA.

Burke is a well owner who has had black water issues since the East St. Clair turbines were constructed in 2012.