Saturday, August 21, 2010

Syncrude - The day of reckoning hath not come...yet

On Friday, Syncrude and its new lawyer Jack Marshall appeared in St. Albert provincial court (just outside Edmonton) requested that the company's sentencing for the deaths of migrating waterfowl in its tailings ponds be adjourned. The company was convicted back on June 25th, 2010 under the Migratory Birds Convention Act for the deaths of 1600 ducks in April 2008 (my posting here). Originally, sentencing was to take place on August 20th, but Syncrude said that it has requested the adjournment because it has hired a new team of lawyers to respresent its interests through the "creative sentencing" phase of the case. During the trial phase of the case, Edmonton attorney Robert White represented Syncrude, however, apparently other clients now require his time and efforts.

As it stands now, Syncrude is discussing with both federal and provincial prosecutors about a creative sentence where assessed fines can be donated to conservation projects or research initiatives or other organizations. In this case, the fines could be used to improve the situation for migratory birds. If the penalties assessed in this case were to follow the letter of the law, the federal charges could bring a fine of $300,000, which could be applied per bird, for a total of as much as $481 million (extremely unlikely), with the provincial price tag ringing in at a maximum of $500,000.

Syncrude was expected to use the Kienapple principle; under that decision, the Supreme Court of Canada established that an accused cannot be convicted of multiple offences when they arise out of the same conduct or action; this basically protects Canadians from being punished twice for a single offence. The Kienapple decision was made when in 1974 during the Kienapple v. The Queen case when the accused was charged with rape and unlawful sexual intercourse with a female under 14 years of age. At trial, he was convicted on both charges, however, the conviction for unlawful sexual intercourse was overturned on appeal to the Supreme Court of Canada. The use of this defence could become moot if Syncrude and the prosecutors agree on a creative sentence.

Just in case you forgot, I did have three creative sentence options as follows:

1.) Require the three top executives of Syncrude to swim or wade across one of the tailings ponds with no protective gear.

2.) Require the three top executives of Syncrude to drink one glass of water from the tailings pond.

3.) Require the three top executives to publicly re-enact the deaths of the waterfowl (since the death of one of the birds was caught on video) after which they will recite in unison an apology to the families of the waterfowl killed in the incident.

Now we have to wait until October to see if Crown prosecutors are as creative as I am.

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