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Part of Environmental prosecutions

Environmental compliance – Creative sentencing

Creative sentencing is part of the punishment an environmental offender can face after being found guilty.

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Environmental prosecutions

Overview

Creative sentencing refers to a range of penalty options that have been available to Alberta courts since the mid ‘90s. Although these sentencing options encompass a wide variety of penalties, among them is the possibility of diverting penalty funds to projects that have a connection with the offence. That connection could be related to the type of offence, the root cause of the offence, the location of the offence, or a combination of these factors. As such, there is no 'pool' of funds for recipients to apply for, as each project is tailored to a specific offence. 

How creative sentencing works

The creative sentencing process arises when an investigation results in a prosecution and the offender subsequently either pleads guilty or is found guilty. 'Creative sentencing' is a catch-all term used to describe the various options in a section of legislation that covers court orders relating to penalty. This section appears in various pieces of legislation and includes:

  • any other measures the court may see fit to secure the offender’s good conduct
  • bond or other monetary payment
  • community service orders
  • compensation orders
  • providing specified information
  • publication orders
  • remediation orders
  • stop orders

Judges presiding over cases decide if they want a creative sentence and if the proposed ideas are suitable. The judge alone can approve the creative sentencing recommendations brought forward by the Crown prosecutor and defence counsel.

Each project idea arises from the unique circumstances of the case. An attempt is made to link the funds to the geographic region where the offence occurred. Prosecutors try to ensure that a link between the project and the type of offence exists. The form of such a link is hard to predict because of the variety and uniqueness of the environmental offences that are prosecuted in Alberta.

The amount of money dispersed each year through creative sentencing also varies widely, depending on the severity of the offences and the size of the companies involved. In addition, cases can take months, if not years, to proceed from the investigation stage to the sentencing stage. For these reasons, creative sentencing is not a regular, dependable source of funding for non-governmental organizations.

Creative sentencing is not like an out-of-court settlement and does not imply a less serious punishment. Creative sentencing is part of the punishment an environmental offender can face after a finding of guilt. While there are statutorily recognized diversion programs available for Criminal Code offences, creative sentencing does not fall into that category. Participation in a creative sentencing project can never justify withdrawing charges or agreeing to a reduced sentence. See an example creative sentencing case below – Hazardous Waste Greenways Case.

Accessing penalty diversion funds

The program prefers to work with non-profit organizations. For-profits are only chosen when they are either the only ones that can perform a particular task or they are the best organization when it comes to that particular skill set needed to complete the project.

This is not like a grant program. There is no guaranteed way of accessing these funds, as each creative sentence is tailored to a specific offence. However, it does help to share information about your organization’s current or future project plans and ambitions with the creative sentencing program liaison. The liaison is part of Alberta Environment and Protected Areas, works with Crown prosecutors in Alberta Justice to come up with appropriate creative sentencing projects, and monitors their implementation.

If your organization is chosen, the program liaison will call you to discuss a project. Often, due to the nature of the court process, the program contact will not have a lot of time to pull together the project details for the court order, so there could be pressure on your organization to quickly pull information together. The confidential nature of the court process means the liaison may not be able to share many details with you about the case or the timing of it.

Creative sentencing projects are almost always presented to the judge as a joint submission from the Crown prosecutor and defence counsel. If, for some reason, one of the parties changes their mind, then the creative sentencing idea can be cancelled. As well, the judge can reject a joint submission. This means that until the judge has approved the project, nothing should be assumed to be in place.

The project commitments vary according to the project, but there are several responsibilities that apply to nearly every creative sentencing project. Recipient organizations must have someone step forward to set up a trust account for the funds and authorize disbursement of those funds. Reports are due when the project is complete.

Reporting

Environmental compliance prosecutions – Concluded files is where sentencing decisions and creative sentencing orders are posted after they are made by the court. The final reports required for each order are also available to the public, upon request.
Summaries of progress on creative sentencing projects are noted in the Compliance Assurance Program annual reports.

Hazardous Waste Greenways Case 

Example of creative sentencing
In October 2011 Peter J. Greenways tipped an empty tank of electroplating waste over at his warehouse. A small amount of residual waste remained in the secondary containment liner of the tank.

Mr. Greenways immediately started to clean and contain the waste, but did not make a call to the proper authorities. Worrying that something was wrong, one of his neighbours called.

  • Investigation and cleanup

    Various government officials arrived on scene and conducted a large investigation.

    During the investigation, Mr. Greenways:

    • told the officials no problem was present
    • provided little information about the nature of the substance that had spilled
    • did not produce any material safety data sheets or specifics about the substance

    Faced with imperfect, incomplete information, and therefore unable to best assess how to clean up the solution in the least environmentally damaging way, City of Edmonton employees were forced to use cleanup methods that could have resulted in potential harm to the environment or themselves.

  • Charges and conviction

    After the investigation, charges were laid against Mr. Greenways. Ultimately he was convicted of improperly transporting hazardous wastes between warehouses, an offence which had nothing to do with the original spill.

    His punishment included:

    • $50,000 penalty, which included bearing the cost of publishing and distributing a document on handling hazardous spills
    • 2-year prohibition order

    For further information on Mr. Greenways' charges and creative sentencing order, see Environmental compliance prosecutions – Concluded files.

  • Hazardous waste spills

    The Greenways Case is a reminder of the sensitivity of drainage areas to potentially harmful spills and releases, and the need for commercial and industrial operators to follow proper protocol when handling such incidents.

    Spill impact on drainage areas

    The Mill Creek drainage area is frequently the victim of all kinds of spills and releases – so frequent that a special oil separator has been installed to reduce environmental damage caused by such spills and releases. Even with the separator, the only way to truly protect Mill Creek and other similar areas in our environment is to minimize the effects of spills and releases.

    The more information that first responders receive, the safer they will be and the less likely that environmental damage will result from a spill or release.

    How to handle a spill

    Everybody has to pitch in together to work with first responders in case of spills and releases. When a spill happens, contain the spill quickly and safely.

    Call the Alberta government (1-800-222-6514), and your local municipality immediately and cooperate fully with them to provide as much detail as possible about what has been spilled. Then, clean the spill as directed.

Contact

Connect with the Regulatory Programs branch:

Hours: 8:15 am to 4:30 pm (open Monday to Friday, closed statutory holidays)

Tricia Kirkpatrick
Environmental Investigations Liaison
Major Investigations and Programs
Phone: 403-340-7749
Toll free: 310-0000 before the phone number (in Alberta)
Email: [email protected] or [email protected]

Previous Concluded files