Editorial: Oilsands giant gets it right in court battle

An interesting legal issue is shaping up at the ongoing Syncrude Canada Ltd. duck trial near Edmonton.

As the Edmonton Journal reported last week, the company was battling the Crown’s attempt to enter statements from 28 Syncrude employees as evidence at the trial.

Authorities took the statements in the aftermath of revelations that an estimated 1,600 ducks had died in the Fort McMurray, Alta., company’s tailings pond in 2008, an incident that brought worldwide condemnation on Syncrude and later federal and provincial charges against it.

Alberta provincial court Judge Ken Tjosvold ruled against the company last week in allowing the Crown’s request. Syncrude had vigorously fought the move. At first blush, it appears an unwise decision by the company given the public-relations fiasco it was already facing over the duck deaths. To then try to stymie evidence in the case worsens that image.

But the company does, in fact, have a point. It’s arguing that to enter statements shared with the government after the incident will complicate such co-operation in the future.

As a result, authorities will have to resort to subpoenas and warrants to get the information if companies and their employees believe it could later count as evidence in criminal proceedings. Instead, Syncrude lawyer Robert White suggested the Crown call the employees as witnesses to testify at trial.

That would be better, he argued, than allowing prosecutors to enter uncontested statements as evidence.

For its part, the Crown said the statements provide the freshest evidence from the immediate aftermath of the incident that’s free of influence by company officials. That’s certainly true, but the company makes a valid argument that having its staff give direct evidence in court would work just as well while satisfying its concerns.

While the employees’ court testimony might in some cases be different from their statements, the Crown has access to those documents and can therefore question them on any inconsistencies before the judge.

That’s how most criminal proceedings work. Witnesses say what they saw, after which the lawyers have an opportunity to compare what they say in court to what they told police during the investigation.

Of course, the Crown’s position neglects the fact that police statements can be problematic anyway. While the prosecutors in the Syncrude case are emphasizing their validity, it’s not unusual for police to struggle to find witnesses who will tell them the truth given their concerns for their own welfare.

As a result, there’s a good argument to make that court testimony given under oath in some cases has a greater likelihood of eliciting the truth.

In the wake of last week’s ruling, White called the move a “perversion of the basics of law.” While many people would argue Syncrude should simply co-operate and allow the full story to come out, the company is right.

Given that the Crown and the court had other options, the decision is unnecessary and one that could create complications for investigations in the future.
-Glenn Kauth

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