Environmental Violations Sentencing Scorecard

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SENTENCING FACTOR SCORECARD

FACTOR

AGGRAVATING/

MITIGATING

EXAMPLE(S)

Nature of environment impacted by violation

Aggravating

A company knowingly dumped landfill outside of the permitted area. When environmental officials ordered it to stop dumping in that area, it didn’t comply. The company and its principal were convicted of violating BC’s Waste Management Act. In sentencing the principal to pay a $75,000 fine, the court noted that the area affected by the illegal dumping was a unique ecological area supporting rare flora and fauna, as well as an essential wildlife habitat [R. v. Alpha Manufacturing Inc., [2005] BCSC 1644 (CanLII), Nov. 29, 2005].

Amount of harm

Aggravating

In the Alpha case discussed above, the court observed that the harm to the environment was serious. The illegally dumped landfill would have to be removed before the affected area could slowly return to a “bog transition zone.” The cost to remove that material was between $69,000 and $278,000.

Mitigating

A company pleaded guilty to storing an excessive amount of “leachable toxic waste” in violation of BC’s Waste Management Act. The court penalized the company $15,000, noting that no actual environmental damage was done [R. v. Snowline Enterprises Ltd., [2004] BCPC 244 (CanLII), March 15, 2004].

Culpability/extent of the company’s efforts to comply with the law

Aggravating

Over a period of eight years, a company released cyanide and chrome VI compounds into the environment due to improper storage methods. The company pleaded guilty to violating Alberta’s Environment Protection and Enhancement Act. The court fined it $125,000. There was ample evidence that the company’s irresponsible conduct stretched over a significant period of time and involved huge quantities of ill-stored hazardous material that “even the most undiscerning eye” wouldn’t have considered environmentally friendly [R. v. Centennial Zinc Plating Ltd., [2004] ABQB 211 (CanLII), March 17, 2004].

 

An Ontario company was convicted of illegally importing refrigerators containing Freon, a substance banned under the federal CEPA. In increasing the trial court’s fines, the appeals court said that the company was clearly negligent and had “taken no meaningful steps to comply with the relevant regulatory law.” In fact, its chief environmental officer’s response to the charges was that the government was “out to get” the company [R. v. Canadian Tire Corp. Ltd., [2004] CanLII 4462 (ON S.C.), July 21, 2004].

Mitigating

The federal Ministry of Transportation pleaded guilty to depositing a hazardous substance into a lake. At sentencing, the BC court said that the Ministry had made “extensive attempts to comply,” noting that it had spent $1.5 million trying to comply with the law [R. v. Her Majesty the Queen (Ministry of Transportation), [2005] BCPC 492 (CanLII), Sept. 27, 2005].

Attempts to alleviate the damage

Mitigating

An AB court found that a company’s willingness to clean up an affected site “at its own expense” and voluntary agreement to pay “all costs associated” with the violations was a mitigating factor calling for a lower fine [R. v. Terroco Industries Ltd., [2005] ABCA 141 (CanLII), April 8, 2005].

Notice of a problem

Aggravating

In fining a company $80,000 for an illegal discharge of 275 kg. of fish oil into fish-populated waters in violation of the Waste Management Act, a BC court noted that an environmental officer had notified it of the problems that lead to the discharge. But the company ignored this notification and failed to implement an

effective plan to address the issues in light of the officer’s recommendations [R. v. Ewos Canada Ltd., [2000] BCPC 87 (CanLII), Feb. 25, 2000].

Prior record

Aggravating

In the Ewos case discussed above, the fact that this conviction was the company’s third in six years was an important factor in determining the appropriate fine.

Acceptance of responsibility/remorse

Aggravating

A BC court found it an aggravating factor when a senior company official who came to court to express remorse actually “downplayed” the company’s offence [R. v. Island-Sea Marine, [1995] CanLII 689 (BC S.C.) Jan. 27, 1995].

Mitigating

A BC shopping centre development company pleaded guilty to depositing silt into waters populated by fish in violation of the province’s Fisheries Act. The court ruled that the company had shown remorse and fined it $40,000, less than half of what the prosecution requested. It noted that the company had immediately brought in experts to develop short-term remedial actions as well as permanent, structural changes to the company’s EHS program [R. v. First Prince George Developments Ltd., [2006] BCPC 231 (CanLII), June 1, 2006].

 

During maintenance of a tanker trailer, an aluminum hose coupling failed, spilling 7,400 litres of caustic soda, which flowed into the storm system and ultimately a bay. The company pleaded guilty to a Fisheries Act violation. Although the company didn’t properly train workers, which would have prevented the violation, it did immediately report the spill, clean the spill up and take steps to prevent a reoccurrence. So the NL court fined it $5,000 and ordered it to pay $45,000 to the Environmental Damages Fund [R. v. Corner Brook Pulp and Paper Ltd., [2010] CanLII 33018 (NL P.C.), June 18, 2010].

 

In the Ewos case discussed above, the BC court lauded the company’s president for personally appearing in court “to express genuine regret and the company’s future plans to avoid a repetition.” It said it would have hit the company with “a substantially higher fine” had the company not “undertaken a comprehensive review of its spill prevention system and taken action to prevent future spills.”

Financial benefit gained from the offence

Aggravating

A Nova Scotia fishing company and the five family members who owned it were convicted of catching blue fin tuna in violation of the Fisheries Act. The court imposed basic fines ranging from $500 to $25,000 and an additional fine of $643,000 based on the nearly $1.2 million they made from the illegal tuna sales [R. v. Henneberry, [2009] NSCA 112 (CanLII), Nov. 13, 2009].

Company’s size and finances

Aggravating

In the Canadian Tire case discussed above, the appeals court considered the fact that the company was a “large and wealthy enterprise” in fining it $75,000.

Mitigating

A city in the Yukon pleaded guilty to violating the Fisheries Act after its sewage treatment plant discharged effluent toxic to fish into a river. At sentencing, the court noted that the city was a small, incorporated municipality with less than 1,900 permanent residents and limited financial means [R. v. City of Dawson, [2003] YKTC 16 (CanLII), March 5, 2003].