Environmental Sentencing

A ‘creative environmental sentence’ is a sanction that has the potential to address or remediate environmental harms caused by regulatory offences more effectively than a typical monetary fine. It may provide for such things as 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. Alberta was one of the first jurisdictions in Canada to enact legislation that provides for this type of environmental sentencing under the Environmental Protection and Enhancement Act (Alberta), and Alberta Justice has used creative environmental sentencing extensively since 1996. However, transparency in creative environmental sentencing is poor. The Clinic filed requests with Alberta Justice under the Freedom of Information and Protection of Privacy Act (Alberta) for information and records in relation to two major environmental sentencing decisions.

The first was filed in July 2017 in relation to a $110,000 creative sentence imposed on CN Rail in response to a hydrocarbon release in 2015. In particular, the Clinic is seeking records that would have informed the actions of the Crown Prosecutor as the creative environmental sentence was negotiated. The Clinic initially received only 35 out of 857 pages of responsive records from Alberta Justice, and so filed an application with the Office of the Information and Privacy Commissioner (OIPC) seeking an order for full disclosure.  In 2021 the Commissioner granted disclosure of the records (Order F-2021-45), denying claims by Alberta Justice that the records were properly withheld based on solicitor-client privilege. However, Alberta Justice has filed for judicial review of that order and has changed its basis for withholding records, asserting that the records should instead be withheld based on litigation privilege. In the summer of 2024, CN Rail applied to remove some of the 857 pages of records - arguing they are not responsive to the Clinic's request for disclosure.

The second request, filed in October 2020, concerns one of the largest environmental sentences ever imposed in Canada (R v Syncrude, 2010 ABPC 229): a $3 million sentence, of which $2.2 million comprised creative sentencing provisions, imposed in response to bird deaths at a tailings pond. Specifically, the Clinic is seeking records relating to the amount of the fine agreed to in the deal between Crown Prosecutors and counsel for Syncrude. This request initially returned zero releasable records, a decision that was successfully challenged before the OIPC in Re Alberta Justice (Order F-2023-37). However, Alberta Justice is seeking judicial review of that decision, with a hearing set for early 2025.

This matter is ongoing.