Judge orders new trial for Brookfield Gardens on pesticide charge

P.E.I. Supreme Court has ordered a new trial for Brookfield Gardens.

The farm, operated by members of the Dykerman family, in Brookfield, P.E.I., had been acquitted of a charge related to use of pesticides, under the Fisheries Act, following a provincial court trial in 2015.

The Crown prosecutor in that case appealed the acquittal.

"The learned trial judge erred in overlooking, rejecting, and misapprehending facts and evidence," wrote Justice Nancy Key, in a written judgment issued March 30, following a Supreme Court hearing in December.

• Brookfield Gardens acquitted on charge related to fish kill

The Supreme Court ruled the provincial court judge did not give adequate consideration to an "agreed statement of facts" that was signed by the farmers and admitted as evidence at trial.

The Supreme Court ruled the agreed statement of facts clearly demonstrated that Brookfield Gardens violated the federal Fisheries Act.

Brookfield Gardens was charged with the unlawful release of a "deleterious substance" into a waterway.

'Over-riding error' by trial judge

The charge resulted from an investigation by environment officials starting in August 2014, following heavy rain and a fishkill on the North River.

Court heard investigators collected 1,155 dead fish along a 3.8 km stretch of river, starting adjacent to land leased and farmed by Brookfield Gardens, and extending downstream.

Brookfield Gardens had planted rows of carrots in thefield, surrounded by a buffer zone of sorghum grass.

It seems to be never-ending for them- Robert MacGregor, defence lawyer

Chemical testing revealed three pesticides in the river. One of those pesticides, Diazinon, had been applied to the land farmed by Brookfield Gardens, but had not applied to any other row crops in the fishkill area.

The Supreme Court ruled the trial judge did not give adequate consideration to these facts, and others. The Supreme Court ruled the trial judge's mistakes constitute a "palpable and over-riding error."

'Hard working farmers'

The clock is now ticking on Brookfield Gardens' 30 day window to launch an appeal. The company's lawyer, Robert MacGregor of Charlottetown, said his clients are considering their options.

"They were surprised they're disappointed," said MacGregor. "After the trial, they thought that was the end. It seems to be never-ending for them."

• Farm pleads guilty to buffer zone violations

Travis Dykerman, Gerald Dykerman and Eddie Dykerman testified at the original trial on behalf of their family-run company, Brookfield Gardens.

In her written judgment, Justice Key called them "hard working farmers trying to make a decent living often under circumstances beyond their control."

"The Dykermans have been nothing but helpful to those responsible for the laying of the charges against them. There is nothing in their evidence to indicate anything other than a concern over the loss of the fish," she wrote.

No date has been set for the trial.

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