Report on the Review of the Federal Environmental Fines and Sentencing Regime – 10 years later

Executive Summary

On behalf of the Minister, Environment and Climate Change Canada (ECCC) and Parks Canada conducted a review of the environmental fines and sentencing provisions under ten federal environmental Acts (the Review) 10 years after the provisions were adopted. The Review was mandated by law, which also required the Minister of Environment and Climate Change to table this report in both Houses of Parliament.

The purpose of the Review was to evaluate whether the fine amounts and sentencing principles in the ten Acts (the Review Acts) advance the goals of the regime and remain consistent with the public values, as well as economic and other circumstances. The Review looked at the three elements of the fines and sentencing regime: the fundamental purposes of sentencing (e.g. deterrence and denunciation), the sentencing regime itself (e.g. fines, sentencing principles, and aggravating factors), and ancillary clauses (e.g. absolute or conditional discharges, the due diligence defence, limitation periods, injunctions, and jurisdictional issues). It considered whether these provisions continue to advance the goals set out in the Acts; that is, deterrence against committing offences, denunciation of unlawful conduct, application of the polluter pays principle, and recovery and restoration, as the case may be in each Act (the Fundamental Purposes of Sentencing) and whether the regime as a whole remains consistent with public values, as well as economic and other circumstances. The Review was not meant to review the enforcement activities of ECCC and Parks Canada or to result in any definitive proposal for law reform.

The Review included desk research and analysis, and incorporates results from both internal, as well as external engagement efforts. In spite of changes in the context, such as the relationship Canadians have with the environment and climate change, the relationship between Indigenous Peoples and all Canadians and efforts to promote reconciliation, the concern for environmental justice, and the economic landscape in Canada, the fines and sentencing regimes remain consistent with public values, as well as economic and other circumstances. While there is great variation in the fines, the highest fines imposed by courts under the Review Acts are much higher (several in the millions) than the highest fine imposed under the Acts prior to when the provisions were adopted ($100,000). The Review also found that the fundamental purposes of sentencing remain relevant, minimum fines for environmental offences are important because they provide clear legislated goal posts to courts of the seriousness of environmental offences, the fine ranges allow for appropriate flexibility, and the Acts have a comprehensive list of non-fine sentencing orders and aggravating factors, which are key to environmental sentencing.

A number of concepts were identified as areas that may be further explored, researched and consulted upon in the event there is an opportunity for legislative reform in the future. For example: further categorizing offenders for sentencing purposes to include other legal entities, such as limited liability partnerships, municipalities, very large corporate offenders; formally prioritizing deterrence among the Fundamental Purposes of Sentencing; and adjusting the fine ranges to reflect inflation. The Review also highlights trends in environmental sentencing that may impact the Review Sections in the future.