'Proposed provincial prison in Kemptville, Ont. is illegal,' group filing for Judicial Review

Two Kemptville residents have filed a Notice of Application with the Divisional Court of Ontario for a Judicial Review of the Ontario government's proposed plan to pave over prime farmland on the former Kemptville Agricultural College to build a provincial prison.

The site, selected by the Ministry of the Solicitor General, is classified as Class 2 agricultural land according to the Canadian Land Inventory and the province's own soil classification, confirming the site's agricultural value.

The plans would bulldoze existing farm buildings on approximately 180 acres of farmland. The land has yielded various crops for decades. Victor Lachance, a member of the Coalition Against the Proposed Prison (CAPP), and Kirk Albert, a member of the Jail Opposition Group (JOG), are filing the motion in the interest of many residents, community organizations, and agri-food groups who have been frustrated by the province's refusal to consult with North Grenville residents. 

Speaking on behalf of Lachance and Albert, Stéphane Émard-Chabot of the law firm Sicotte Guilbault notes, "Through our legal research, our firm has determined that when the provincial government announced in August 2020 that it planned to build a correctional complex on farmland of the former Kemptville Agricultural College they broke the law by not abiding by its own Provincial Policy Statement and the local Official Plan, as it is obliged to do under the Planning Act." He adds, "The Judicial Review launched today by my clients is challenging the legality of the decision and is seeking a Prohibition Order that will save the farmland and several farm buildings located on the property by stopping the construction of the proposed prison."

Under an old principle called "crown immunity," the provincial government is not bound by most laws passed by the Legislative Assemble. Unless a statute specifically asks the Crown to respect its provisions, the provincial government is free to disregard the statute in question. Court decisions confirm the province is not bound by the Planning Act, meaning they can bypass a number of regulations that other property owners cannot, such as zoning, site plan control, and the payment of development charges.

However, Lachance and Albert say the Planning Act sets out three specific obligations which all ministers are to respect:

• All ministerial decisions must be 'consistent with' the Provincial Policy Statement 2020. This province-wide planning regulation, approved by Cabinet, provides strict protections for prime agricultural lands throughout Ontario. The decision to take approx. 180 acres of Class 2 farmland to build a correctional facility is not consistent with the safeguards set out in the Policy Statement. See section 3(5) of the Planning Act.
•  All ministerial decisions must 'have regard for' local planning policies. The North Grenville Official Plan specifically designates the selected site as Agricultural, a designation used for prime agricultural land. The local Official Plan also sets out strict safeguards to protect prime farmland from development. A specific policy for the selected site recognizes the historical vocation of the land as an educational and research resource. The Official Plan does not contemplate the construction of facilities like correctional institutions on farmland, at this loca,tion or elsewhere in the municipality. A decision that completely disregards the North Grenville Official Plan cannot be said to have regard for local planning policies. See section 6(2) of the Planning Act.
• The Planning Act also provides that ministers shall consult with municipalities affected by their decisions. All the information available to date, from the Province and the Municipality, indicates that no consultation took place prior to the announcement on August 27, 2020. See section 6(2) of the Planning Act.

By violating these obligations, the Minister overstepped the authority given by the Legislature. The group argues the decision to build on the proposed site is therefore illegal. 

"Ontario is losing over 300 acres of farmland a day," says Victor Lachance. "How can the province justify its cavalier approach of destroying farmland and farm buildings for a prison that nobody asked for and that experts argue we do not need?" He adds, "Up to $499 million has been earmarked for a 30-year public-private partnership to design, build, finance, and maintain the proposed prison. The contract for this P3 has not been signed so these funds should be used to help farmers and their communities, not to build cages for people who have been pushed to the margins of our society and are seeking support and care instead of imprisonment."

The Judicial Review applicants are calling on the Ontario government to look at the grounds for the application and agree they should not proceed with the proposed prison plans. "It’s not too late to change course on their prison plan," states Lachance. A Judicial review is a process used by the courts to make sure anyone who is exercising a power given by a statute or regulation is not abusing that power.

"For two years, residents of Kemptville have been requesting details about the proposed prison from the province through correspondence and Freedom of Information requests about its site selection and due diligence activities, including the environmental assessment. The province has refused to share substantive information about its process or its decision to pave over valuable farmland in Kemptville for a prison," says Albert. He adds, "From many perspectives, the province has failed in its commitments to our local government and residents since announcing its plan in August 2020 and we hope the North Grenville Municipal Council will support this Judicial Review to save not only the land, but the Green and Growing vision for Kemptville and North Grenville’s future, that they themselves championed for the community."

A press conference is being held at the Ottawa Courthouse to announce legal action being taken against the provincial government to stop the construction of the prison.

For more information visit www.cappkemptville.ca.

- With files from CFRA's Sara Capeloa