Creative sentencing- brilliant or cheap?

The same debate recurs every few years: Are “creative” alternatives to conventional fines a brilliant innovation? Or just another way for corporate polluters to get off cheaply?

We’re big fans of creative sentences; no surprise, since Dianne helped to develop them 30 years ago. They flow from three basic observations about fines, the standard way of punishing environmental offenders:

1. fines don’t help the natural environment; they just disappear into the Consolidated Revenue Fund (or now, into some municipal coffers) and get spent on other things;
2. sometimes offenders have more valuable things to offer the environment and the community than money, (especially when they don’t have much money); and
3. taking a stake in restoring the natural environment can help rehabilitate offenders, motivate them to care more about the issues, and set a good example for others.

For example, why couldn’t a construction company (going through a cash crunch during a downturn) donate its spare labour, equipment and expertise to rebuild the banks of a local creek, rather than being hit with an unaffordable fine? And if money must be the measure of remorse, why couldn’t it go directly to environmental projects, instead of to general government coffers?

Ontario led the way at first, but then got cold feet; now federal, BC and Alberta prosecutors are Canada’s leaders in creative environmental sentencing.

Modern environmental statutes often specifically authorize creative sentences. For example, the Canadian Environmental Protection Act, 1999 authorises a broad range of Environmental Protection Alternative Measures as an alternative to conviction[1]. After conviction, s. 291(1) authorises a judge to order an offender to do many useful and important things, including:

adopt a pollution prevention plan or environmental management system;

conduct environmental effects monitoring or an environmental audit;

publish details of the offence and its punishment;

pay for environmental research about the substance involved;

make grants to local environmental, health or other groups; and/or

provide environmental scholarships.

Federal departments typically direct offenders’ money into the Environmental Damages Fund (EDF), a trust account for environmental protection and restoration projects, and for research and education. Funds are supposed to be used in the region the offence occurred, and, where possible, to address the damage caused by the offence. British Columbia has established two provincial trust funds – the Habitat Conservation Trust Foundation and Grizzly Bear Trust Fund. According to its 2011 report, the Foundation had received 295 awards worth over $2.6 million by March 2009.

Between 1995 and 2010, the EDF received more than $4.5 million from 154 awards. For example, Ontario Northland Transportation Commission pleaded guilty to spilling sulfuric acid into a creek; $50,000 of the $60,000 penalty went to the EDF. Suncor pleaded guilty to depositing effluent into a river near Ft. McMurray. It was fined $200,000, of which $180,000 went to the EDF. Corner Brook Pulp and Paper pleaded guilty to spilling sodium hydroxide into a river; it paid a $5000 fine and $45,000 to the EDF.

In Alberta, Syncrude received penalties of $3 million for the 1600 ducks killed in its tailings pond. It paid $300,000 to the federal EDF under the Migratory Birds Convention Act, and $500,000 on provincial charges, half of which went to Keyano College’s environmental program in Fort McMurray. Another $1.3 million went to the University of Alberta for research into bird migration and deterrents; $900,000 went to the Alberta Conservation Association for wildlife habitat.

Other examples include:

Educational/training programs, bursaries:

• Statoil pled guilty to improperly diverting water from Argo Lake and May River. It was fined $5000, and will pay $185,000 to fund an online training portal on best practices for surface water diversion. Project stakeholders include Alberta Environment, Statoil and the Canadian Association of Petroleum.
• Dunvegan Gardens (AB) Ltd pleaded guilty to diverting water from the Clearwater River without a licence. $5000 of the $10,000 penalty was directed for education on water licensing and conservation for the Alberta Farm Fresh Producers Association.
• Devon Canada Corporation pleaded guilty to failing to identify a watercourse crossing prior to construction. It was fined $25,000 plus $60,000 to establish a bursary at Olds College’s School of Environment.
• The Compass Group Canada (Beaver) Limited and Suncor Energy Inc. pleaded guilty to violating a wastewater approval. $300,000 of the $400,000 penalty will subsidize the Alberta Water and Wastewater Operator’s Association operator training course, and fund a new scholarship to encourage attendance of operators from small, rural facilities.

Restoring habitat

• Ducks Unlimited Canada received:

•  $42,000 for wetland restoration as part of a creative sentencing order issued to Quartz Land and Developments Ltd., which also paid a $38,000 fine for altering a wetland.
• $49,000 for wetland restoration from Harvest Operations Corp, which contaminated a wetland by releasing salt water and oil emulsion and also paid a $21,000 fine.
• $60,000 to improve water circulation to prevent avian botulism, from Western Feedlots Ltd., which pleaded guilty to failing to report a spill.
• Petenco Resources Ltd. released produced water (a salt water/hydrocarbon mixture) which it failed to report or clean up. It was fined $45,000, of which $22,500 went to wetland restoration.
• Imperial Oil spilled untreated wastewater into the North Saskatchewan River. It was fined $20,000 and ordered to donate $180,000 to environmental groups for projects along the River.

Funding research

• The City of Edmonton pleaded guilty to failing to report a sewage overflow. It paid $5000 fine, and $190,000 to the University of Alberta for a study on alternate uses for City wastewater.
• Jovnic Ltd. pleaded guilty to destroying a creek and wetland. It paid a fine of $20,000 plus $180,000 to the University of Alberta to fund research on the decline of lake sturgeon.

Public education

• QIS Trucking Ltd. paid $6000 for removing shoreline vegetation at Jackfish Lake without approval. $5000 went to the Jackfish Lake Management Association for a publicity campaign on the adverse impacts of shoreline modification.

Critics argue that offenders are buying their way out of fines, or directing the money into projects that benefit them, or which they would have funded anyway. That has not been our experience, as indicated by the good projects described above. Others resent the positive publicity that offenders sometimes gain from good works, while we find such publicity motivates stronger local relationships, and greater efforts at good behaviour.

Especially at a time of government deficits and restraint, we think that Alberta and Environment Canada / Department of Fisheries and Oceans are on the right track to use creative sentences whenever possible. Ontario is turning its back on many environmental opportunities by its current boycott of creative sentences.

Dianne Saxe

Jackie Campbell

This article was first published in Canada Water, edited by the inimitable Kerry Freek.