On October 22, 2010, the Provincial Court of Alberta sentenced Syncrude Canada Ltd to pay $3,000,000 (click here to read the decision).
As we reported earlier, on June 25, 2010 Syncrude Canada Ltd. was found guilty on two charges arising out of the death of approximately 1,600 ducks in its settling pond in Northern Alberta.1 The charges were brought pursuant to Alberta’s Environmental Protection and Enhancement Act (EPEA) and Canada’s Migratory Birds Convention Act (MBCA).2 Both the EPEA and the MBCA provide statutory "due diligence" defences.3 Syncrude raised a number of additional defences including an act of God, abuse of process and officially induced error.
While Syncrude’s sentence is not the largest penalty ever imposed in Canada for an environmental offence, it is clearly at the upper end of the range and follows the trend toward higher penalties and the increased use of creative sentencing for environmental offences.
The $3,000,000 total penalty approved by the court, on a joint submission by the Crown and Syncrude, is made up of the following:
- $300,000 fine imposed under the Migratory Birds Convention Act, 1994
- $500,000 fine imposed under the Alberta Environmental Protection and Enhancement Act of which $250,000 is to be applied toward the creative sentencing projects
Creative Sentencing Provisions
- $1,300,000 to be paid to fund the Research on Avian Protection Project at the University of Alberta
- $900,000 to be paid to Alberta Conservation Association to acquire acreage for the Golden Ranches Waterfowl Habitat Project
- $250,000 from the fine under the Alberta Environmental Protection and Enhancement Act to be paid to Keyano College to fund the development of a curriculum for the Wildlife Management Technician Diploma Program
While the joint submission on sentence was approved by the court and appears to have been generally well received by the public, the sentence imposed leaves open a number of questions of interest to the legal community:
- should a conviction have been entered on both charges when the offences alleged under each act arose out of the same circumstances and therefore a conviction on both offences arguably runs counter to the rule against double jeopardy set out in the seminal case of R. v. Kienapple  1 S.C.R. 729?;
- did Syncrude’s culpability warrant the maximum fine under the Alberta Environmental Protection and Enhancement Act and arguably the maximum fine under the Migratory Birds Convention Act, 1994?;
- did imposing a total monetary penalty in excess of the maximum fines provided for in the acts abrogate a "totality of sentence" principle that may exist in Canada following the decision in Canada v. Domtar Specialty Fine Papers, 2001 Carswell Ont. 1572, 39 C.E.L.R. (N.S.) 56 (Sup. Ct.)?
As with many sentencing decision in environmental cases, Syncrude’s sentence was arrived at by a joint submission agreed to between the Crown and the Defendant and then approved by the Court. As a result there is no detailed ruling that considers the myriad factors that are to be considered on sentencing for environmental offences, and no indication of whether the questions posed above were addressed or considered in arriving at the ruling. As stated in the Domtar case cited above, courts are entitled to consider joint-submission sentencing cases but need to recognize that such decisions have extremely little precedential value unless one knows what factors lead to the negotiated result.
The sentencing decision in Syncrude may set a new high-water mark for summary conviction environmental offences and it may have satisfied a significant portion of the Canadian public, but it has done little to advance the jurisprudence respecting how such sentences are to be determined.
One feature of this case that is also worth commenting on is the fact that the original charges were brought by a private prosecution commenced by Ecojustice, an environmental advocacy group, with the Crown subsequently assuming conduct of the prosecution.
At the time of writing, it has just been reported that Syncrude Canada is under investigation by Alberta Environment, once again, after more waterfowl landed on one of its tailings ponds less than a week after the conclusion of the court proceedings and release of Judge Tjosvold's sentencing decision. Media reports indicate that over 300 birds would have been involved in this most recent incident.