A group fighting to save Lemay Forest from development has taken the rare step of filing for a private prosecution against the landowner and planner, alleging the removal of trees on the land — where a graveyard once stood — violates provincial cemetery legislation.
The developer also took new action Thursday, filing a notice of motion that seeks to have the Court of King’s Bench find a spokeswoman for the opposition group, Louise May, in contempt of an interim injunction order issued last week — and to compel her to terminate the private prosecution.
The injunction order has barred protesters from impeding the owner’s access to the land, though they’ve been allowed to remain on adjacent city-owned property.
MIKE DEAL / FREE PRESS
Some area residents have fought to preserve the trees in the forest amid concerns about protecting potential unmarked graves of Métis children and others in a former Catholic orphanage that used to stand on the site.
Politicians from all three levels of government have been drawn into the fray, while the Manitoba Habitat Conservancy made a public offer for about $5.25 million to buy the St. Norbert-area land, but the developer has said that’s too low a figure for the land’s $8 million market value.
Tochal Development Group has sought approval to build a large assisted-living facility. Winnipeg city council rejected the plan, but the developer intends to appeal the decision before the provincial government Municipal Board in February.
Some area residents have fought to preserve the trees in the forest amid concerns about protecting potential unmarked graves of Métis children and others in a former Catholic orphanage that used to stand on the site.
The project planner and the developer’s lawyer said the group has conducted extensive consultation and worked on protecting the area where the cemetery is thought to have been with buffer zones.
May, a spokeswoman for the Coalition to Save the Lemay Forest, filed an information in provincial court Wednesday, alleging project planner John Wintrup and landowner Mazyar Yahyapour committed a provincial offence by cutting trees contrary to the Cemeteries Act that same day.
May and lawyer Ian Histed also filed summons, ordering the two men to attend a court date in February.
“They can be arrested now,” said May.
Private prosecutions involve an individual — rather than authorities such as police or the Crown — with evidence of reasonable and probable grounds asking the court to lay a charge against a person they believe committed an offence.
Under provincial Department of Justice policy, Crown attorneys must assess private prosecutions to determine if there’s a reasonable likelihood of conviction and if continuing it would be in the public interest before it proceeds through court.
Kevin Toyne, a lawyer for the developer, said he expects Crown prosecutors would quash the private prosecution as baseless.
“There’s no reasonable prospect of conviction, so I would expect that’s what will take place here,” said Toyne.
Toyne said the developer has been conducting consultations on the cemetery issue for four years.
“There were extensive consultations with the provincial archaeologist and the Historic Resources Branch,” said Toyne. “The landowner retained an expert to prepare a heritage resource protection plan.”
Histed argued in court Monday the whole of the land, not just buffer zones set up by the developer, should be considered as containing potential unmarked graves.
Toyne said cemeteries are technically defined in the law, requiring the land to be set apart for the purpose.
“The Historic Resources Branch isn’t taking the position that all of the land is a cemetery, and the reason why is that technical definition,” said the lawyer.
“The fact that keyboard warriors are taking a look at legislation and then throwing around really serious allegations is problematic and it’s unfortunate, it contributes to this sense that there’s something wrong happening there, when the landowner has been working with the appropriate regulatory authority for years.”
On Wednesday, after Court of King’s Bench Justice Sarah Inness continued an injunction that barred protesters from impeding access to the land, Wintrup and an equipment operator attempted to gain access, while May and others at a city-owned access point demanded Winnipeg police be present for a negotiation over the alleged violations of graveyard legislation.
The developer’s notice of motion alleges May, whose pickup truck is parked at the access point next to an Indigenous sacred fire, impeded access for the developer’s agents and their heavy equipment.
The motion also seeks, if May “has not purged her contempt” within a day, an order allowing the developer to remove and retain possession of the truck until a further court order at her expense.
It also seeks to send her to jail for at least 10 days, a fine of $25,000, and an additional daily fine of $2,500 until she stops her alleged contempt.
The motion will be heard Jan. 20.
Another contractor crew got on the land elsewhere and began cutting trees Wednesday.
Histed alleged that crew cut “upwards of 20 large trees.”
An individual found guilty of violating cemetery legislation can be fined between $1,000-$10,000 and jailed for a year. The Lemay coalition is also working on filing for an injunction of their own to halt to the tree clearing.
“If they continue to (cut trees), I’m sure folks won’t restrain themselves from speaking to police about ‘there needs to be arrests,’” said Histed.
erik.pindera@freepress.mb.ca
Erik Pindera
Reporter
Erik Pindera is a reporter for the Free Press, mostly focusing on crime and justice. The born-and-bred Winnipegger attended Red River College Polytechnic, wrote for the community newspaper in Kenora, Ont. and reported on television and radio in Winnipeg before joining the Free Press in 2020. Read more about Erik.
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