Environmental Sentencing

A ‘creative environmental sentence’ is a sanction directed at remediating environmental harms caused by regulatory offences. These sentences may provide for 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. Unfortunately, transparency in creative environmental sentencing is poor. The Clinic has 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 request 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 then changed its basis for withholding records, asserting that the records should instead be withheld based on litigation settlement privilege. In the summer of 2024, CN Rail also got involved as a third party and applied to remove some of the 857 pages of records - arguing they are not responsive to the Clinic's request for disclosure. The matter is back in front of an adjudicator with the OIPC for Inquiry-Part 2 to rule on the assertion of litigation settlement privilege.

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. The Clinic sought records relating to the sentence quantum. This request initially returned zero releasable records from Alberta Justice, a decision that was successfully challenged before the OIPC in Re Alberta Justice (Order F-2023-37). Alberta Justice initially sought judicial review of this OIPC decision, but then withdrew the application and produced just two releasable records which it asserted were protected from disclosure because of settlement privilege. In Order F-2025-16, the OIPC ruled the records are protected by settlement privilege.

In June 2025, the Access to Information Act, SA 2024, c A-1.4, replaced the Freedom of Information and Protection of Privacy Act (Alberta), and section 4 of the Access to Information Act excludes records related to a prosecution from the application of the Act.

This matter is ongoing.