Syncrude — $3 Million Creative Sentence

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:

Fines

$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 [1975] 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...