On April 28, 2008, several hundred migrating ducks died after they landed on a Syncrude settling pond at Syncrude's Aurora Oil Sands operation. Syncrude was charged pursuant to s.155 of the Environmental Protection and Enhancement Act EPEA that requires a person keeping or storing a hazardous substance (in this case, bitumen from the oil sands) to do so in a manner that ensures the hazardous substance does not come into contact with or contaminate an animal, and s.5.1(1) of the Federal Migratory Birds Convention Act (MBCA. Justice Tjosvold ruled the Crown (federal and provincial) established that Syncrude committed the actus reus elements in each of these offences beyond a reasonable doubt, and that Syncrude did not have a defence (due diligence or otherwise) on the evidence. As a result, he found Syncrude guilty on both counts.
Syncrude sought to establish the defence of due diligence (that it took all reasonable steps to avoid harm to the ducks). The foundation for this defence was predicated upon the virtually unprecedented weather patterns that occurred during April 2008, Syncrude's bird deterrent practices and its internal accounting of relatively low annual bird deaths caused by its settling basins, which indicated to Syncrude that its practices were sound.