I fought the law

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In a week of big news from all over the world, we have a major story breaking in our own community with the announcement by CAPP and JOG of their legal appeal against the province’s plans for a prison in Kemptville. On a side note: some people object to the word “prison”, preferring the more palatable “correctional facility”. However, one of the Solicitor General’s people used the word “prison in one of the few public relations exercises they put on, so that makes the term acceptable usage. The Application with the Divisional Court of Ontario for a Judicial Review of the Ontario government’s proposed plan is a major initiative and has real ramifications on a number of levels. To begin with, it is based on the original decision to build a prison, and how that decision was reached and announced by the SOLGEN’s office. It has always been the position of the Times that this was the aspect of the entire case that was most objectionable, literally and practically. The complete lack of consultation with either the municipality or the community, is what should have been the basis for complaint by the municipality from the beginning.

The new Appeal is based on the claimed illegality of that decision-making process, as it contravened both provincial law and the North Grenville Official Plan, which does not allow for land zoned agricultural to be used for a prison. The appeal also claims that the use of the land for use as a prison also contravenes the Planning Act, clauses of which also protect agricultural land. The Planning Act also provides that ministers “shall consult with” municipalities affected by their decisions. In spite of the doubts expressed during the course of this controversy, it is clear that there was no such consultation before the announcement of the prison was made by the provincial government.

The fact of this Appeal does not mean that it is based on sound legal grounds, whatever the analysis of the lawyers hired by CAPP and JOG may say, of course. There has been some question raised by local experts about the quality of much of the farmland not being of a good standard, and that the College did not utilise it for that reason. That remains to be argued under the Appeal.

The argument is also raised in the Appeal that the land is unceded Algonquin territory, something that has been confirmed by the Draft Agreement on the Algonquin Land Claim entered into by the Canadian Government in 2012. As unsurrendered Indigenous territory, there is an onus on the Province of Ontario to consult and negotiate with the Algonquin Nation on future uses of the tract in question.

There are a number of legal issues involved in the Judicial Appeal process that will be decided by the courts and not by either party. But there are also issues that will be raised by this initiative which will be more immediately relevant to this community. It has been the constant position of the NG Mayor and Council that they had no power to do anything to change the provincial decision: the SOLGEN’s office, and MPP Steve Clark, agreed and declared that it was a fait accompli. There would be no going back. And it is true that municipal government had to take into account other aspects and issues in their relations with the Ford Government. Taking a hard stand against the prison might jeopardise other projects needing provincial funding. That is a fair point, in spite of politically necessary denials on all sides. But anyone with any experience of politics knows that such threats and implications are part and parcel of that strange world, even if no-one will say it openly.

In addition, Mayor and Council cannot be faulted for believing the assurances given by Steve Clark and the SOLGEN about new and exciting economic opportunities and jobs which the prison would bring to North Grenville. And, although these have been shown to be, let’s say, inaccurate, they continue to be repeated by Clark even recently during the provincial election. The issue of increased policing and taxation costs have been raised by the municipality, and their position made clear. But opponents would say that the truth about those provincial statements have also been debunked and it is time for Mayor and Council to say so publicly.

One other point that this appeal raises: could the municipality have taken this step? CAPP and JOG are voluntary groups using their own money to fund this action, as well as the many Freedom of Information requests they have (ineffectually) pursued. Could, or should, the municipality have paid for these and other moves to force the province to reveal the facts and stats connected with the proposed prison? Or is it better that these moves have been undertaken by residents, by community groups, rather than through government agency? Does the municipality have the power to take court action such as this one?

There needs to be a clear and transparent statement by the municipality about what exactly is their position on all of these things. There has been constant talks, not always in friendly terms, between the municipality and the province. The results of these talks needs to be made known to the people of North Grenville, especially in the context of a municipal election. Mayor Peckford met with the Solicitor General this week at the Association of Municipalities of Ontario conference in Ottawa, specifically concerning the prison and policing costs associated with it. Will she and her Council colleagues make a public statement about where those discussions have led?

The action by CAPP and JOG is significant, but only potentially game-changing. Their statements give one side, and one analysis of the legal position. It will be fascinating indeed, to see and hear the response of the Province in the courts, not to mention the final judgment as it will be handed down at some point. Like the song says: “I fought the Law…and the Law won”. And there is an important point to make: will there be a decision before the election in October, or will this still be hanging over that process. That seems unfair on all sides, so let’s hope the courts can deal with the case in a speedy and conclusive fashion.

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