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.3Syncrude 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
The $3,000,000 total penalty approved by the court, on a joint
submission by the Crown and Syncrude, is made up of the
$300,000 fine imposed under the Migratory Birds Convention
$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
$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
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. Mediareports indicate that over 300 birds would
have beeninvolved in this most recent incident.
Ontario's Ministry of the Environment and Climate Change continues to roll out its Climate Change Action Plan with its proposed GHG guide for projects that are subject to the province's Environmental Assessment Act.
The Imperial Oil refinery pled guilty to one offence for discharging a contaminant, coker stabilizer, thermocracked gas, into the natural environment causing an adverse effect and was fined $650,000...
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