R. v. Syncrude Canada Ltd.,

• Judge: Tjosvold, P.C.J.
• Citation: (2010), 489 A.R. 117 (PC),2010 ABPC 229
• Court: Provincial Court of Alberta (Canada)
• Date: 29 April 2010

R. v. Syncrude Can. Ltd. (2010), 489 A.R. 117 (PC)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. JL.022

Her Majesty The Queen v. Syncrude Canada Ltd. (090157926P1; 2010 ABPC 229)

Indexed As: R. v. Syncrude Canada Ltd.

Alberta Provincial Court

Tjosvold, P.C.J.

June 25, 2010.

Summary:

Almost 1,600 waterfowl died after landing on Syncrude's bitumen laden tailings pond. Syncrude was charged with failing to store a hazardous substance in a manner that ensured it did not come into contact with animals (provincial Environmental Protection and Enhancement Act, s. 155) and with depositing a substance harmful to migratory birds in an area frequented by migratory birds (federal Migratory Birds Convention Act, s. 5.1(1)). Syncrude's defence was that the wording of both charges did not disclose an offence known to law, due diligence, the defence of impossibility, the defence of Act of God, abuse of process/officially induced error, and de minimis non curat lex.

The Alberta Provincial Court found Syncrude guilty on both counts.

Criminal Law - Topic 7287

Summary conviction proceedings - Informations - Surplusage - Syncrude was charged with "failing" to store a hazardous substance in a manner that ensured it did not come into contact with animals (provincial Environmental Protection and Enhancement Act, s. 155) and with "unlawfully" depositing a substance harmful to migratory birds in an area frequented by migratory birds (federal Migratory Birds Convention Act, s. 5.1(1)) - Syncrude argued that because "failing" and "unlawfully" were not included in ss. 155 and 5.1(1), the Crown failed to charge it with offences known to law - The Alberta Provincial Court held that since neither "failing" or "unlawfully" were definitional elements of the offence, their inclusion was mere surplusage - The inclusion of the additional words did not "require proof of any additional element or disproof of any additional defence, justification or excuse" - See paragraphs 51 to 60.

Pollution Control - Topic 4084

Water - Dumping - Deleterious substances - [See Pollution Control - Topic 9122].

Pollution Control - Topic 9122

Offences - Strict liability offences - Improper storage or disposal of hazardous materials - Almost 1,600 waterfowl died after landing on Syncrude's bitumen laden tailings pond - The pond was 8.15 quarter sections (640 football fields) - Syncrude was charged with the strict liability offences of failing to store a hazardous substance in a manner that ensured it did not come into contact with animals (provincial Environmental Protection and Enhancement Act, s. 155) and with depositing a substance harmful to migratory birds in an area frequented by migratory birds (federal Migratory Birds Convention Act, s. 5.1(1)) - Syncrude pleaded due diligence - Syncrude's deterrent system was based on auditory and visual deterrents (sound cannons and effigies) - The Alberta Provincial Court held that Syncrude established due diligence if it exercised reasonable care to establish a proper system to ensure birds were not contaminated and exercised reasonable care to ensure that the system operated effectively - Syncrude did neither - Syncrude significantly cut back on the number of deterrents used over the years - Sufficient equipment and staff were not in place early enough to deploy adequate deterrents - Other reasonable alternatives existed - The loss of 1,600 birds at that time of the year was foreseeable - Due diligence was not established - See paragraphs 95 to 128.

Pollution Control - Topic 9127

Offences - Strict liability offences - Defence of due diligence - [See Pollution Control - Topic 9122].

Pollution Control - Topic 9129

Offences - Strict liability offences - Officially induced error of law - Almost 1,600 waterfowl died after landing on Syncrude's bitumen laden tailings pond - The pond was 8.15 quarter sections (640 football fields) - Syncrude was charged with the strict liability offences of failing to store a hazardous substance in a manner that ensured it did not come into contact with animals (provincial Environmental Protection and Enhancement Act, s. 155) and with depositing a substance harmful to migratory birds in an area frequented by migratory birds (federal Migratory Birds Convention Act, s. 5.1(1)) - Syncrude argued officially induced error in relying on federal and provincial regulatory officials - The Alberta Provincial Court rejected the argument, stating that "federal officials made representations that probably led Syncrude representatives to conclude that the company would not be prosecuted under the Migratory Birds Convention Act if it used due diligence to keep birds from landing on its tailings ponds. That is not sufficient for the defence of officially induced error to apply" - See paragraph 156.

Pollution Control - Topic 9130

Offences - Strict liability offences - Defence of Act of God - Almost 1,600 waterfowl died after landing on Syncrude's bitumen laden tailings pond - The pond was 8.15 quarter sections (640 football fields) - Syncrude was charged with the strict liability offences of failing to store a hazardous substance in a manner that ensured it did not come into contact with animals (provincial Environmental Protection and Enhancement Act, s. 155) and with depositing a substance harmful to migratory birds in an area frequented by migratory birds (federal Migratory Birds Convention Act, s. 5.1(1)) - Syncrude pleaded the defence of Act of God - The Alberta Provincial Court held that the convergence of adverse weather, an open tailings pond with natural water bodies frozen over and bird migration was an unavoidable natural event - However, the defence did not apply where it was not an overwhelming circumstance that could not have been foreseen and guarded against - Syncrude put itself in a position where it was unable to exercise due diligence to ensure that migratory birds did not land in the tailings pond - See paragraphs 133 to 142.

Trials - Topic 265

Prosecution - General - Abuse of process - Almost 1,600 waterfowl died after landing on Syncrude's bitumen laden tailings pond - The pond was 8.15 quarter sections (640 football fields) - Syncrude was charged with the strict liability offences of failing to store a hazardous substance in a manner that ensured it did not come into contact with animals (provincial Environmental Protection and Enhancement Act, s. 155) and with depositing a substance harmful to migratory birds in an area frequented by migratory birds (federal Migratory Birds Convention Act, s. 5.1(1)) - Syncrude argued that it was an abuse of process to prosecute it where complied with all required federal and provincial environmental approvals - The Alberta Provincial Court held that there was no abuse of process - The court stated that "there was nothing in the evidence to suggest that Syncrude was promised that, even if it failed to take all reasonable steps to deter birds from its tailings ponds, it would not be prosecuted. Nor could Syncrude reasonably take from the provincial approval process any assurance that, if it simply complied with the approval process, its bird deterrent efforts would be viewed as due diligence. ... There is no basis for finding that the charges are a violation of the public's sense of decency and fair play amounting to an abuse of process." - See paragraphs 143 to 155.

Trials - Topic 1114

Summary convictions - Defences - Impossibility of compliance - Almost 1,600 waterfowl died after landing on Syncrude's bitumen laden tailings pond - Syncrude was charged with, inter alia, failing to store a hazardous substance in a manner that ensured it did not come into contact with animals (provincial Environmental Protection and Enhancement Act, s. 155) - Syncrude pleaded impossibility, arguing that it was not physically or morally possible to "ensure" that birds did not come into contact with the bitumen in the tailings pond - The Alberta Provincial Court rejected the defence - Perfect compliance was not required, as this was a strict liability offence requiring due diligence - Exercising due diligence was not impossible - See paragraphs 129 to 132.

Trials - Topic 1115

Summary convictions - Defences - De minimis non curat lex - Almost 1,600 waterfowl died after landing on Syncrude's bitumen laden tailings pond - The pond was 8.15 quarter sections (640 football fields) - Syncrude was charged with the strict liability offences of failing to store a hazardous substance in a manner that ensured it did not come into contact with animals (provincial Environmental Protection and Enhancement Act, s. 155) and with depositing a substance harmful to migratory birds in an area frequented by migratory birds (federal Migratory Birds Convention Act, s. 5.1(1)) - The Alberta Provincial Court rejected the defence of de minimis non curat lex, stating that "Syncrude's conduct in connection with the offences is not minimal or trivial. Unfortunately some waterfowl will die in the tar sands tailings ponds regardless of deterrent efforts. More birds will die without effective deterrents. I have no doubt that, in this context, the failure to take all reasonable steps to deter waterfowl from the Aurora Settling Basin was not at all trivial." - See paragraph 165.

Trials - Topic 1172

Summary convictions - Strict liability offences - Defence of due diligence or error of fact - [See Pollution Control - Topic 9122].

Cases Noticed:

R. v. Côté and Vézina, [1986] 1 S.C.R. 2; 64 N.R. 93, refd to. [para. 59].

R. v. Hawkshaw, [1986] 1 S.C.R. 668; 66 N.R. 350; 15 O.A.C. 308, refd to. [para. 59].

R. v. Rooke and De Vries, [1990] 1 S.C.R. 1020; 108 N.R. 234, refd to. [para. 59].

R. v. Pierce Fisheries Ltd., [1971] S.C.R. 5, refd to. [para. 61].

R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161, refd to. [para. 61].

Lévis (City) v. Tétreault, [2006] 1 S.C.R. 420; 346 N.R. 331, refd to. [para. 61].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 63].

R. v. Consumers Distributing Co. (1980), 57 C.C.C.(2d) 317 (Ont. C.A.), refd to. [para. 71].

R. v. Edmonton (City), [2006] A.R. Uned. 285; 2006 ABPC 56, refd to. [para. 71].

R. v. B.C. Hydro and Power Authority, [1997] B.C.T.C. Uned. A98 (S.C.), refd to. [para. 74].

R. v. Synergy Group of Canada Inc. et al. (2006), 421 A.R. 253; 2006 ABPC 196, refd to. [para. 75].

R. v. Perka et al., [1984] 2 S.C.R. 232; 55 N.R. 1, refd to. [para. 75].

R. v. Pearson (E.), [1998] 3 S.C.R. 620; 233 N.R. 367, refd to. [para. 78].

R. v. Hoben (2009), 243 C.C.C.(3d) 268; 2009 NSCA 27, refd to. [para. 81].

R. v. Rojas (M.A.) et al., [2008] 3 S.C.R. 111; 380 N.R. 211; 260 B.C.A.C. 258; 439 W.A.C. 258, refd to. [para. 82].

Boardwalk Reit LLP v. Edmonton (City) et al. (2008), 437 A.R. 347; 433 W.A.C. 347 (C.A.), refd to. [para. 85].

R. v. MacMillan Bloedel Ltd. (2002), 173 B.C.A.C. 22; 283 W.A.C. 22; 2002 BCCA 510, refd to. [para. 96].

R. v. Starosielski (T.) (2001), 302 A.R. 226; 2001 ABPC 208, refd to. [para. 96].

R. v. J.D. Irving Ltd., [2008] N.B.J. No. 371, refd to. [para. 99].

R. v. Commander Business Furniture Inc. (1992), 9 C.E.L.R.(N.S.) 185 (Ont. C.J. Prov. Div.), refd to. [para. 100].

R. v. Goebel (W.) (2003), 338 A.R. 201 (Q.B.), refd to. [para. 100].

R. v. Gonder (1981), 62 C.C.C.(2d) 326 (Yuk. Terr. Ct.), refd to. [para. 100].

R. v. Carriere (G.) (2005), 272 Sask.R. 13; 2005 SKPC 84, refd to. [para. 106].

R. v. Heinrich (W.R.), [1995] B.C.T.C. Uned. F83 (S.C.), refd to. [para. 107].

R. v. Lonkar Well Testing Ltd. (2009), 473 A.R. 1; 2009 ABQB 345, refd to. [para. 121].

R. v. Daishowa Canada Co. (1991), 118 A.R. 112 (Prov. Ct.), affd. (1993), 135 A.R. 179; 33 W.A.C. 179 (C.A.), refd to. [para. 121].

R. v. Rio Algom Ltd. (1988), 29 O.A.C. 349; 66 O.R.(2d) 674 (C.A.), refd to. [para. 122].

R. v. Royka (1980), 52 C.C.C.(2d) 368 (C.A.), refd to. [para. 129].

R. v. 605884 Saskatchewan Ltd. (2004), 245 Sask.R. 182; 2004 SKPC 16, refd to. [para. 129].

R. v. Belman, [2001] O.J. No. 2288 (C.J.), refd to. [para. 129].

R. v. Latimer (R.W.), [2001] 1 S.C.R. 3; 264 N.R. 99; 203 Sask.R. 1; 240 W.A.C. 1, refd to. [para. 130].

R. v. North Canadian Enterprises Ltd. (1974), 20 C.C.C.(2d) 242 (Ont. Prov. Ct.), refd to. [para. 135].

R. v. Byron Creek Collieries Ltd. (1978), 8 C.E.L.R. 186 (B.C. Co. Ct.), refd to. [para. 139].

R. v. Springbank Sand and Gravel Ltd. (1976), 25 C.C.C.(2d) 242 (Ont. Co. Ct.), refd to. [para. 139].

R. v. Jack Crewe Ltd. (1975), 23 C.C.C.(2d) 237 (B.C. Co. Ct.), refd to. [para. 139].

Victoria School District No. 61 v. Goudie, [1984] B.C.J. No. 2783 (Co. Ct.), refd to. [para. 139].

Albert and McAffery Ltd. v. Arrow Transportation Systems Inc., [1984] B.C.J. No. 3096 (Co. Ct.), refd to. [para. 139].

R. v. Matchewan Consolidated Mines Ltd. (1992), 20 W.C.B.(2d) 202 (Ont. C.J. Prov. Div.), refd to. [para. 139].

R. v. Pioneer Timber Co., [1979] B.C.J. No. 1565 (Co. Ct.), refd to. [para. 139].

R. v. Northwest Territories (Commissioner), [1994] 8 W.W.R. 405 (N.W.T.S.C.), refd to. [para. 139].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159, refd to. [para. 144].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201, refd to. [para. 144].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63, refd to. [para. 144].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161, refd to. [para. 144].

R. v. Abitibi Paper Co. (1979), 24 O.R.(2d) 742 (C.A.), refd to. [para. 145].

Western Pulp Ltd. Partnership v. British Columbia, [1988] B.C.J. No. 3127 (S.C.), refd to. [para. 146].

R. v. BHP Diamonds Inc., [2003] 6 W.W.R. 282; 2002 NWTSC 74,, refd to. [para. 147].

R. v. Boise Cascade Canada Ltd. (1995), 82 O.A.C. 142; 24 O.R.(3d) 483 (C.A.), refd to. [para. 148].

Krieger et al. v. Law Society of Alberta, [2002] 3 S.C.R. 372; 293 N.R. 201; 312 A.R. 275; 281 W.A.C. 275, refd to. [para. 153].

R. v. Nixon (O.) (2009), 464 A.R. 1; 467 W.A.C. 1; 2009 ABCA 269, leave to appeal granted (2010), 407 N.R. 391 (S.C.C.), refd to. [para. 153].

Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031; 183 N.R. 325; 82 O.A.C. 243, refd to. [para. 161].

Ship Reward, Re (1818), 2 Dods. 265; 165 E.R. 1482, refd to. [para. 161].

R. v. St. Paul (Town) (1993), 150 A.R. 372 (Prov. Ct.), refd to. [para. 163].

R. v. T.G. (1990), 102 A.R. 289 (Prov. Ct.), refd to. [para. 163].

R. v. Petro-Canada, 2009 ONCJ 179, refd to. [para. 164].

Statutes Noticed:

Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12, sect. 155 [para. 51]; sect. 229 [para. 64].

Migratory Birds Convention Act, S.C. 1994, c. 22, sect. 5.1(1) [para. 52]; sect. 13(1.8) [para. 65].

Authors and Works Noticed:

Ewaschuk, Eugene G., Canadian Criminal Pleadings and Practice in Canada, pp. 9:10010 [para. 59]; 12:6155, 12:6160 [para. 144]; 16:15037, 16:15070 [para. 81]; 21:10055 [para. 58].

Libman, Regulatory Offences in Canada, pp. 6-18 to 6-59 [para. 55]; 7-2, 7-3 [para. 99]; 7-17, 7-18 [para. 100]; 7-21 to 7-24 [para. 99]; 7-50, 7-51 [para. 103]; 7-99 to 7-101 [para. 107]; 8-13, 8-14, 8-15 [para. 129]; 8-106 to 8-115 [para. 144].

Swaigen, John, Regulatory Offences in Canada, Liability and Defences (1992), pp. 104 to 112 [para. 100]; 193 [para. 73]; 194 [para. 129]; 195 to 199 [para. 129]; 200 to 202 [paras. 73, 129, 134].

Counsel:

Susan L. McRory, for the Attorney General of Alberta;

Kent C. Brown and Alex Bernard, for the Public Prosecution Service of Canada;

Robert B. White, Q.C., Alexandra Bochinski, Kate Saunders and Patty Ko, for the defendant company.

This matter was heard between March 1 and April 29, 2010, at St. Albert, Alberta, before Tjosvold, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on June 25, 2010.