Government lawyers oppose request for ‘laundry list’ of documents related to Kemptville jail site selection process

A judge’s ruling is expected within two to three weeks.

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The court battle to halt Ontario’s plan to build a jail on heritage farmland in Kemptville continued last week with government lawyers opposing a request to release a “laundry list” of documents related to the site-selection process.

In a virtual hearing, opponents of the province’s plan asked Superior Court Justice Robyn Ryan Bell to compel the government to release a “full and accurate” record of the procedure behind its initial decision to build the 235-bed Eastern Ontario Correctional Complex (EOCC) on agricultural land at the former Kemptville College campus.

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The application, filed by Kemptville residents Kirk Albert and Victor Lachance, seeks the release of documents that predate the government’s August 2020 announcement that Kemptville, along with Brockville and Napanee, would be host communities for new or renovated provincial jails.

“More than three years after the decision to build the Kemptville prison was announced, and more than a year after my clients brought forward their judicial review application, we’re no closer to knowing whether the province fulfilled its obligations under the Planning Act regarding development on agricultural land,” Stéphane Émard-Chabot, lawyer for the grassroots opposition groups, said in a statement. “The government has submitted no records on how the project emerged, nor any records on how they decided to select the Kemptville site.”

Stephane Emard-Chabot Victor Lachance Kirk Albert Kemptville jail
A 2022 photo shows Kemptville residents Kirk Albert and Victor Lachance, far right, looking on as lawyer Stéphane Émard-Chabot speaks outside the courthouse after the filing of a court application for a judicial review of the Ontario government decision for construction of a jail at the former Kemptville College campus. Photo by Coalition Against the Proposed Prison /HANDOUT

Opposition groups cleared a legal hurdle in April, when Justice Robert Smith dismissed the province’s efforts to toss the case and allowed the review to proceed to a full judicial panel of the Divisional Court. Those hearings are scheduled for February.

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The judge noted in that decision he believed the government “failed to follow several provisions of its provincial policy statement when deciding to build a correctional facility in the town of Kemptville.”

Counsel for the Ministry of the Solicitor General, led by Susan Keenan, responded Wednesday by labelling the opposition efforts a “fishing expedition” for “buckets of unspecified documents that we don’t know (if they) exist.”

Keenan said the opposition request covered territory that was “much broader than what is permissible in a judicial review” and likened opposition efforts to a “public inquiry into provincial correctional policy.”

If the application is allowed, Keenan said, the ministry’s subsequent search for the requested documents will threaten to “derail” and delay the schedule set for February’s judicial review.

She urged the judge to deny the request and said “millions” in public funds had already been committed to the “frozen project.”

‘Shifting criteria’

In the opposition’s application, Émard-Chabot requested internal documents illustrating the government’s shifting criteria during the search for a site for the jail.

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The opposition groups requested materials demonstrating the shift in the province’s plan, from the 2015 proposal to build one 700-bed jail in Ottawa, then known as the Ottawa Correctional Complex, which was later abandoned in favour of building or renovating three jails in smaller Ontario communities. The groups also requested documents demonstrating the government “widening the radius” of its search for a site, and other documents outlining the evolving criteria, including the potential site’s proximity to a four-lane highway.

Keenan countered that request by saying those documents would be irrelevant to the questions the judicial review panel must consider.

The only reviewable questions for the judge to consider, Keenan argued, focused on whether the selected site in Kemptville was designated as agricultural land and whether the government breached its obligations under the Planning Act that regulate the development of farmland.

“It’s whether this is farmland in the (Municipality of North Grenville’s) Official Plan and, therefore, whether there was a breach of the Planning Act because it was inconsistent with the provincial policy statement and local planning policies,” Keenan said.

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The sole focus for the judicial panel in February, Keenan continued, should be on “land use” restrictions in the Planning Act.

“Do they apply to this particular property? And, if they don’t apply, the judicial review has to be dismissed,” Keenan told the judge.

“There’s nothing beyond that … If it wasn’t inconsistent with the Planning Act, if a correctional institution was a permissible use of this property in Kemptville, the application has to be dismissed.”

Kemptville jail opponents
A 2021 file photo shows some of the opponents of the jail proposal gathered on the farm in Kemptville. Photo by Tony Caldwell /POSTMEDIA

‘A done deal’

Émard-Chabot countered by saying the documents were relevant to the opposition case because they would prove the Kemptville jail was considered “a done deal” before the 2020 announcement.

“The applicants argue that the government’s mind was made up by August 2020. It is entirely legitimate to inquire whether the solicitor general had turned its mind to its obligations under the Planning Act and whether it had done so properly under the principles of administrative law,” Émard-Chabot said.

“At that point, had the solicitor general turned its mind to the requirements under the Planning Act? That is the question that has been asked for three years, and we don’t have that answer … In not providing any documents that led to the selection of this site, the province is essentially handcuffing the applicants, preventing them from making their case.”

The judge said she expected to make a ruling on the request within two to three weeks.

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