ENVIRONMENTAL VIOLATIONS: What Factors Can Impact Your Company’s Sentence?

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Courts have a lot of discretion in deciding how much to fine a company (or individual) for an environmental violation. But they are required to consider certain sentencing factors spelled out either in the environmental laws or in “case law”—that is, the sentences imposed by courts in other cases. By understanding the sentencing principles that apply to environmental offences, a company can put itself in a position to get the most favourable sentence possible if it’s convicted of an environmental offence.

Here’s a look at the factors that can impact your company’s sentence for an environmental offence and a Scorecard of actual cases illustrating those factors at work.

SENTENCING FACTORS

Courts use sentencing guidelines to determine how much to fine a company for an environmental violation. These guidelines come from two places:

Environmental laws. In Fed and ON, the primary environmental laws spell out the factors courts must consider when sentencing a company or individual for violations. For example, Sec. 287.1 of the federal CEPA requires the court to consider the following “aggravating” factors—that is, factors that weigh in favour of a harsher sentence:

  • The offence caused damage or risk of damage to the environment or environmental quality;
  • The offence caused damage or risk of damage to any unique, rare, particularly important or vulnerable component of the environment;
  • The offence caused harm or risk of harm to human health;
  • The damage or harm caused by the offence was extensive, persistent or irreparable;
  • The company committed the offence intentionally or recklessly;
  • The company failed to take reasonable steps to prevent the offence despite having the financial means to do so;
  • By committing the offence or failing to prevent it, the company increased revenue or decreased costs (or intended to increase revenue or decrease costs);
  • The company committed the offence despite having been warned by an enforcement officer of the circumstances that subsequently became the subject of the offence;
  • The company has a history of non-compliance with legislation that relates to environmental or wildlife conservation or protection; and
  • The company attempted to conceal the offence; failed to take prompt action to prevent, mitigate or remediate its effects; and/or failed to take prompt action to reduce the risk of committing similar offences in the future.

Insider Says: Under the CEPA, courts must consider the above factors in addition to any other factors they’re required to consider, such as those contained in Secs. 718.1 to 718.21 of the Criminal Code. See the box on page X for the sentencing factors for organizations under the criminal law.

Case law. Courts will also consider factors developed in prior cases involving environmental violations. These factors are similar to those used in cases involving violations of other kinds of regulatory laws, such as the OHS laws. But as the Alberta Court of Appeals noted in R. v. Terroco Industries Ltd., the sentencing principles for environmental offences require “a special approach.” The environmental sentencing factors based in case law are similar to those in the federal and Ontario environmental laws and include both aggravating and “mitigating” factors—that is, factors that weigh in favour of a lesser sentence.

The leading case on sentencing companies for environmental violations is R. v. United Keno Hill Mines Ltd., in which the Yukon court said that courts should consider:

  • The “criminality” of the conduct—that is, whether the company acted intentionally, recklessly or negligently;
  • The extent of the company’s attempts to comply with the law;
  • Remorse and acceptance of responsibility;
  • The company’s size;
  • Any financial benefit gained from the offence; and
  • The company’s prior record of environmental violations, if any.

In addition, courts will also typically consider the nature of the environment impacted by the violation and the extent of the damage done to it.

SENTENCING SCORECARD

There’s a Scorecard that illustrates how some of the factors mentioned above have played out in the sentencing of companies for environmental violations in actual cases. As you’ll see, sometimes a factor may reduce a company’s fine, while the same factor may result in a higher fine in another case.

BOTTOM LINE

By understanding the sentencing factors, you can help put your company in the best possible position for sentencing. For example, ensure that your company does the following:

  • Takes all reasonable steps—particularly simple and inexpensive ones—to minimize all foreseeable environmental risks;
  • Acts quickly after an environmental incident to minimize the effects of the violation, remedy any damage already done and contact the appropriate authorities; and
  • Voluntarily takes responsibility and shows remorse when the company’s at fault.

SHOW YOUR LAWYER

R. v. Terroco Industries Ltd., [2005] ABCA 141 (CanLII), April 8, 2005

R. v. United Keno Hill Mines Ltd., [1980] Y.J. No. 10, Oct. 31, 1980

 


Sentencing Factors for Organizations under the Criminal Code


Sec. 718.21 of the Criminal Code says that courts must consider the following when sentencing an organization for a crime:

  • Any advantage realized by the organization as a result of the crime;
  • The degree of planning involved in carrying out the crime and the crime’s duration and complexity;
  • Whether the organization has attempted to conceal its assets, or convert them, in order to show that it isn’t able to pay a fine or make restitution;
  • The impact that the sentence would have on the organization’s economic viability and the continued employment of its workers;
  • The cost to public authorities of the crime’s investigation and prosecution;
  • Any regulatory penalty imposed on the organization or one of its representatives for the conduct that formed the basis of the crime;
  • Whether the organization was—or any of its representatives who were involved in the crime’s commission were—convicted of a similar offence or sanctioned by a regulatory body for similar conduct;
  • Any penalty imposed by the organization on a representative for their role in the crime’s commission;
  • Any restitution that the organization is ordered to make or any amount that the organization has paid to a victim of the crime; and
  • Any measures that the organization has taken to reduce the likelihood of it committing a subsequent offence.