Syncrude muddies the waters

04 Mar Syncrude muddies the waters

Syncrude muddies the waters

It’s “like” unconstitutional.  On March 1, 2010, trial began for the death of 1,600 ducks in a tailing pond at the Syncrude Aurora mine north of Fort McMurray.  Syncrude had filed notice of constitutional questions, and while it opened by attacking the overlap of federal and provincial charges, any constitutional claims had the concreteness of an oil slick.

Syncrude is charged under both Alberta’s Environmental Protection and Enhancement Act (EPEA), and the Federal Migratory Birds Convention Act (MBCA).  Section 155 of EPEA requires any person storing a hazardous substance to ensure that it does not come into contact with animals.  Section 5(1) of the MBCA provides that no person shall deposit a substance hazardous to migratory birds into waters or areas frequented by those birds.

Both laws create strict liability offenses.  Syncrude has asked the media to “punish crimes, not mistakes”, but these are not true crimes and intention is irrelevant.  In this case of regulatory breach, the prosecution only needs to prove that the act occurred, after which Syncrude can argue that it showed due diligence in taking reasonable steps to prevent it.  That is the crux of the overlap issue:  It is impossible for Syncrude to claim that it took reasonable steps not to deposit tailings into a tailing pond.   It might, however, succeed in proving that it took reasonable steps to keep animals away from a stored substance.  The federal prosecutor claims that a due diligence defense is not available, but the Province accepts that it will be argued.

Prior to the trial, University of Calgary law professor Shaun Fluker noted that Syncrude’s need to eliminate the MBCA exceeds any conventional debate about the law’s constitutionality.  The going options are:

A)  Plead guilty to the provincial charge to get the federal one dropped.

B)   Argue that the MBCA only applies to natural water bodies and areas.

C)   Hook out the MBCA or supporting evidence with a stretched constitutional claim.

D)   Crook the MBCA into the provincial charge so that the easier defense serves both.

Options A and B have not been pursued yet.  Options C and D are where Syncrude’s position gets murky.

First, Syncrude did not argue that the MBCA is invalid and should be struck out.  This claim would likely fail, as it failed J.D. Irving Ltd. in 2008.   In that case, the Provincial Court of New Brunswick held that the Migratory Birds Convention itself was something that no one province could deal with and ultimately a matter of national concern.  Regulatory offenses can also fit under the broad  federal criminal power.  Irving further failed in claiming that another MBCA offense — the nest destruction provision —  was vague or overly broad so as to breach the Charter of Rights and Freedoms.  The deposit provision could also survive this challenge if the challenge is really being made.  Syncrude’s current allegation that the law requires “metaphysics” to interpret is not a direct claim that the MBCA is impossible to comply with and therefore unjust.  In fact, the deposit provision resembles section 36(3) of the federal Fisheries Act, which has stood for years.

Professor Fluker suggested a direct challenge to Canada’s power over the Convention.  The 1916 treaty between Canada and the US historically concerned hunting and harvesting, but in the 1990s it was amended to adopt an environmental protection purpose.  Canada definitely has the power to carry on British Empire Treaties under Section 132 of the Constitution Act (1867), but whether it has the power to change their terms is debatable.   Syncrude did not go that far, however.  It merely suggested that the “old treaty” does not produce any different allegations than the Alberta law.

Second, Syncrude did not argue that the laws are in conflict so therefore only one should operate.  This move would be self-defeating, as the federal law would have paramountcy. There is likely no conflict anyway, as Syncrude could comply with both laws by meeting the higher federal standard.

Third, Syncrude did not take its public statement into the courtroom and argue that:  “the feds are putting their toe into provincial natural resource regulation”.  That is politics, not law.   Modern federalism allows for overlapping laws so long as each are valid in their own spheres.   Alberta cannot not oust the federal environment power by having authorized tailing ponds.  A law with a federal purpose may have an effect on provincial matters.  The MBCA is not natural resource law in disguise.  It applies as much to ocean-going vessels and recreational sportsmen as it does to provincially licensed industrial facilities.  Some federal matters have immunity from provincial lawmaking, but the same does not work in reverse.

Fourth, Syncrude wants evidence excluded on principle, but it has already conceded that the Charter will not protect the corporation in this context.   Instead it suggested that the Crown evidence that it might rely on for its defense to one charge could preclude its defense to the other. . . “like self incrimination”.

What Syncrude finallly claimed is that facing both charges is “like double jeopardy”.  It relied the case of R. v. Kienapple, which states that one cannot be convicted twice for the same act.  Yet it conceded that it had no authority for the idea that the judge or prosecution must choose between federal and provincial charges at the start of a trial.   Past cases involving the Fisheries Act and provincial charges were not contested on this ground.  Syncrude is advancing a new proposition:   that the double jeopardy rule itself is misconstrued because the underlying issue is with having two identical offenses.  Are there really two such offenses?  Syncrude admitted that EPEA and MBCA have different wording, but maintained that they are “unclear at best”.

The prosecution stated that it was not in position to respond to new arguments.   Even the Kienapple case was circulated for the first time during Syncrude’s presentation.  The judge suggested that Syncrude’s concerns could be met by severing the provincial and federal proceedings.  No applications to sever were made, but the parties may revisit this option when the contentious evidence is introduced.

To date, Syncrude has not claimed that one charge is unavailable, nor asked that the proceedings be separated to ensure procedural fairness.  It is suggesting that two laws become one under the weight of some implied constitutional value:  something  “like” irrelevance, vagueness, overbreadth, conflict of laws, interjurisdictional immunity, self-incrimination, unlawful search and seizure, or double jeopardy, but none of these things.  It is what the ELC’s Laura Bowman calls “constitutional seepage”, and what the Supreme Court of Canada calls an error of law.

Constitutional questions must be clearly stated, so as not to pollute the mundane task of statutory interpretation.   Statutes are presumed to be constitutional (Barrie Public Utilities v. Canadian Cable Television Assn., see the dissent for discussion of the principle).  Charter values are not to be used as statutory interpretation tools except in cases of genuine ambiguity.  If a statute is unambiguous, then the courts must give effect to the intent of the legislature, not use the Charter to reach a different result  (Bell ExpressVu Limited Partnership v. Rex).

The intent of the legislature is determined by the context of a provision.  Alberta has a general environmental statute that provides for the storage of substances.   Canada has a specific treaty to which it added a habitat protection objective.  The treaty is implemented by dedicated legislation that protects designated species by prohibiting deposits in certain areas.   When faced with a constitutional question, the Court may take notice of social and legislative facts.  If it does in this case, it might discover that a leading concern at the time of the amendments was oil in water.

Syncrude needs to call the two laws identical specifically because they are different.  It will need to dive deep, as its arguments to date find little constitutional ground.

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