Creative Environmental Sentencing in Alberta
Creative environmental sentencing has been used in Canada since the late 1980s to impose sanctions which have the potential to more effectively address or remediate environmental harms caused by regulatory offences. A ‘creative environmental sentence’ is a sanction other than a monetary fine which may provide for such things as the forfeiture of benefits accruing from the offence, clean-up or remediation of pollution, revocation of a permit or license, funding for environmental research, education or remedial projects, and other forms of community service. Federal and provincial legislation across Canada includes specific provisions that provide for this type of environmental sentencing. Alberta was one of the first jurisdictions in Canada to enact this legislation in 1993 under the Environmental Protection and Enhancement Act (Alberta), and Alberta Justice has used creative environmental sentencing extensively since 1996.
In July 2017, the Clinic agreed to assist an individual conducting research into the outcomes of creative environmental sentences, including one of the largest environmental sentences ever imposed in Canada (R v Syncrude, 2010 ABPC 229), with accessing information on how or why creative sentencing orders are made and how remediation or research projects are selected for funding by these orders. The Clinic filed a request for records under the Freedom of Information and Protection of Privacy Act (Alberta) with Alberta Justice in relation to a creative environmental sentence imposed in June 2017 for the release of hydrocarbons into the North Saskatchewan River in Edmonton. The Clinic received only 35 out of 857 pages of responsive records from Alberta Justice, and accordingly the Clinic filed an application with the Office of the Information and Privacy Commissioner seeking an order for full disclosure. In 2021 the Commissioner granted disclosure of the records, denying claims by Alberta Justice that the records were properly withheld based on solicitor-client privilege.
In 2022, Alberta Justice filed for judicial review of the Commissioner’s order. These proceedings are currently in abeyance, and the matter is back before the Commissioner as Alberta Justice has changed its basis for withholding records, and now asserts the records should be withheld based on litigation privilege.
This matter is ongoing.
- Shaun Fluker “Let’s Shine Some Light into Creative Environmental Sentencing” (21 June, 2017)
- Fluker, Shaun and Paskey, Janice and Balaton, Fiona, Funding Environmental Projects with Regulatory Prosecutions: Transparency and Accountability in Creative Environmental Sentencing (July 19, 2019). Forthcoming, Journal of Environmental Law and Practice (2019), Available at SSRN: https://ssrn.com/abstract=3468332
- Re Alberta Justice and Solicitor General, ORDER F2021-45