The oil sands company charged with killing 1,606 ducks in its toxic waste pond wants one of the charges against it to be thrown out.
Syncrude Canada Ltd. has been charged under both provincial and federal laws after the ducks died in April, 2008 in its 12-square-kilometre tailings pond. The incident stirred international furor, and, to oil sands critics, has come to symbolize the environmental destruction of the massive crude-extracting projects around Fort McMurray.
But in the first day of a two-month trial against the company, its lawyer, Robert White, argued that forcing it to face both charges at the same time would be akin to "double jeopardy," the legal principle that bans multiple convictions for the same offence.
Mr. White asked Alberta provincial judge Ken Tjosvold to force prosecutors to choose which charges to proceed with.
"There are points at which this defence, if facing both charges simultaneously, can be put in a position where it cannot defend each equally," Mr. White argued.
He acknowledged that there is no precedent for such a ruling at the outset of a trial. He also agreed that the trial could proceed through its first week as the judge contemplates the request. Crown prosecutors expect to call testimony from the first responders who helped to investigate the death of the ducks in Syncrude's tailings pond.
In a brief opening statement, provincial prosecutor Susan McRory argued that Syncrude did not respond quickly enough to the arrival of birds in the area. Syncrude has said it did not install noise cannons to scare birds off the toxic water due to a late snowstorm that prevented their installation.
However, the snowstorm came on a day the Syncrude employees charged with installing bird deterrent devices were not on the job, Ms. McRory argued. The death of the 1,606 ducks also came after two had previously died, Ms. McRory said. That may be an indication that Syncrude had warning that it should erected its deterrents.
"I expect the evidence you'll hear, sir, is that they were too late," Ms. McRory told the court, and described the ways bitumen can kill a bird, by drowning it, trapping it and destroying its insulating abilities.
"The death of at least 1,600 birds - I'd suggest, sir, the number of birds is important in that it speaks to the degree of negligence," Mr. McRory said.
Outside of the court on Monday, Mr. White told reporters he believes that Syncrude made a "mistake," but committed not legal wrongdoing.
"There's no question that the settling basin [the tailings pond]and its contents was the reason that these birds died. And there is no question at all that the settling basin is Syncrude's responsibility, and [the company]is morally culpable. But they are not guilty of criminal offences," he said.
Syncrude's case could turn on the narrow wording of legislation that bans it from harming migratory birds.
"What the statute says is that we're not supposed to bring any hazardous substance into contact with these birds," Mr. White said. "The problem arises when the birds come into contact with our hazardous substance. Is there a way that we can ensure that that not happen? That's the big problem. We've learned a lot since April 2008. For example, the [noise]cannons … - the ducks stop being afraid of them in two hours."
The trial continued Monday morning after the judge ruled against a Syncrude request that he remove himself from this case. The judge, in previous work with the Alberta government, supervised Ms. McRory, and Syncrude lawyers argued that he should leave the case lest he appear biased.
However, the judge ruled that his association with the government had ended in 2006, well before the Syncrude case had begun.