A lawyer for Syncrude Canada Ltd., the oil sands giant on trial after 1,606 ducks died on one of its tailings ponds two years ago, asked a judge Wednesday to throw out all the charges in the high-profile case.
Robert White told court the Crown's eight weeks of evidence haven't applied to the actual charges.
"The public thinks that Syncrude's being tried for killing ducks," Mr. White said. "We are being prosecuted under a section which has nothing to do with the facts at hand."
The provincial charge is that Syncrude failed to prevent toxic bitumen in its tailings pond from contacting the birds; the federal charge is of storing a substance in a way that is harmful to migratory birds.
The ducks landed on the toxic pond, which is used to settle byproducts of oil sands mining, some time before the morning of April 28, 2008. The Crown has said the company didn't have enough mechanisms in place to scare the birds away. Photos of the dying birds have become a rallying point for environmentalists opposed to oil sands development.
Mr. White argues the provincial law under which his company is charged is intended to deal with seepage, such as an oil spill, and does not apply to a case in which the ducks came to a contained pond. He said the toxic substance was not active or moving, and therefore is not to blame. Provincial prosecutor Susan McRory countered that it's an "absurdity" to interpret the law as pertaining only to the substance, and not those in charge of it.
Mr. White then argued a broader implication of a guilty verdict - saying the province, which licenses tailings ponds, would be complicit and that a guilty verdict would apply to all tailings ponds, shutting down half of Alberta's energy sector.
"That means government is complicit in the crime, and the industry will come to a stop," Mr. White told reporters. "It is that high-stakes... I'm sure it passed your minds: Why is it for all these weeks, sometimes with four lawyers here, we've been working so hard on this case? And now you know."
Ms. McRory rejected that vision.
"The concept that a successful prosecution under this legislation would shut down oil companies does not make sense," she said.
Ms. McRory and federal prosecutor Kent Brown told the judge they believed their evidence indeed related directly to the charges.
Judge Ken Tjosvold is expected to rule on dismissal Thursday morning. If he rules against Mr. White, the Crown will proceed to its closing arguments.