Prison for Environmental Violations Becoming More Common

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  • Six months in prison for a company’s sole director for failing to comply with an MOE order to remove oil-contaminated soil from its property—his third conviction for an environmental offence [Ian Herd];
  • Four months in prison—plus a $71,000 fine—for the president of two companies convicted of releasing PCB-contaminated sediment [James Sinclair, Thermosets Ltd. and Demolition and Recycling Inc.];
  • 45 days in prison—and a $10,000 fine—for a property owner who pleaded guilty to numerous environmental violations and then disobeyed orders to clean up the property [Manuel Fagundes]; and
  • 33 days in prison for a mechanic who refused to obey MOE orders to remove more than 5,000 used tires from his company’s illegal waste tire operation [Pierre Sleiman and AAA Auto Parts Mechanics and Wrecking Inc.].

THE PROBLEM

A company that commits an environmental violation is subject to fines and other monetary penalties. But individuals convicted of violating an environmental law may face another kind of penalty—jail. Prison sentences have been a sentencing option in the environmental laws for individuals who commit environmental offences for years. But as these cases indicate, jail sentences are becoming more common—even for defendants who don’t cause extensive environmental damage.

THE EXPLANATION

Individuals may be jailed for environmental offences if:

The offence was egregious or resulted in serious environmental harm. Jail sentences are more common for environmental violations that lead to serious environmental damage and injuries or deaths (to humans or wildlife) and for egregious conduct. For instance, in BC, anyone who intentionally causes damage or loss of use to the environment can be sentenced to up to three years in jail [Environmental Management Act, Sec. 126]. Prison is even more likely if the wildlife affected by a violation is endangered.

Example: An Ontario resident was convicted of unlawful capture and possession of Blanding’s turtles, which died, and a spotted turtle in violation of the Species at Risk Act. The court sentenced him to nine months’ jail and three years’ probation [Pak Sun Chung].

The individual was in a position of power. If the individual responsible for the violation is in a position of power within the company, the court is more likely to impose a jail sentence. So it’s not surprising that all four of the cases cited above involved company presidents, directors and property owners.

The individual has prior convictions for similar conduct. Individuals with prior environmental violations can expect to get harsher sentences for subsequent offences—especially if they engage in the same conduct. A court may conclude that because fines weren’t enough to deter the commission of future violations, a prison sentence is now necessary.

Example: After Pierre Sleiman’s conviction noted above for running an illegal waste tire disposal site, he began operating another illegal tire site. He was convicted again and this time, the court fined him $5,000 and sentenced him to 90 days’ jail [Pierre Sleiman].

The offence involved failure to comply with a government order. Courts take it very seriously when companies and individuals openly defy government orders, such as to remediate environmental damage or get a certificate of approval. In fact, several of the cases noted above involved individuals who failed to comply with explicit government orders.

THE LESSON

When an individual is convicted of an environmental offence, a fine is still the most likely penalty. But individuals can go to jail for environmental violations. And as these cases illustrate, courts are becoming more and more comfortable throwing people, especially officers and directors, in jail for harming the environment. So you can’t assume that only your wallet is at risk if you’re convicted of an environmental violation.

SHOW YOUR LAWYER

Pak Sun Chung, Govt. News Release, Aug. 5, 2009

Ian Herd, Ontario Govt. News Release, May 1, 2009

Manuel Fagundes, Ontario Govt. News Release, May 15, 2009

James Sinclair, Thermosets Ltd. and Demolition and Recycling Inc., Ontario Govt. News Release, Dec. 4, 2008

Pierre Sleiman and AAA Auto Parts Mechanics and Wrecking Inc., Ontario Govt. News Release, July 24, 2009; Pierre Sleiman, Ontario Govt. News Release, Sept. 15, 2010