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Wednesday, June 23, 2010

Sentencing Principles for Corporations in Environmental Spill Cases

From the judgment of Gorman, P.C.J. in R. v. Corner Brook Pulp and Paper Limited, 2010 CanLII 33018 (NL P.C.):

THE PRINCIPLES TO BE APPLIED


The principles to be applied have been considered in many cases (see for instance, R. v. United Keno Hill Mines Ltd. (1980), 1 Y.R. 299 (T.C.) and R. v. Domtar, [1998] O.J. No. 6408 (C.J.)). I would summarize them as follows:

(1) The Nature of the Harm Inflicted: Serious environmental damage will be considered as a significant aggravating factor. However, the Court must also consider the potential damage which might have occurred as it does not have to wait for environmental degradation to occur before imposing a sentence designed to prevent it from occurring;

(2) The Size of the Corporation: This is a factor which is designed to ensure that any financial penalty imposed is a meaningful one, but a disproportionate fine cannot be imposed solely based upon the size of the offender;

(3) The Degree of Culpability of the Corporation: Under this heading the Court must consider the nature of the offence which occurred and why it occurred. Purposely committing an environmental offence will normally be seen as being more serious than the commission of one through negligence or a lack of care. However, this distinction must not be taken too far. For instance, the accidental spilling of a deleterious substance in to water frequented by fish will have the same degrading impact upon the environment as will doing so purposefully. In addition, these are regulatory offences which demand that reasonable care be taken with potentially dangerous substances. These are offences involving a high degree of moral culpability no matter how they are committed;

(4) Attempts to Alleviate Harm: The Court must consider whether the corporation immediately reported the offence having occurred and what steps they took to; for instance, contain a spill of a deleterious substance;

(5) Was a Safety Plan in Place: The Court must consider whether the corporation was ready to respond to; for instance, the spill of a deleterious substance by having a plan in place or whether there was a lack of means to limit the spill once it was discovered;

(6) Any Previous Convictions: The Court must consider whether the corporation has any previous convictions, particularly for related offences; and

(7) The Plea: A plea of guilty can have the same mitigating impact when entered by a corporation as when entered by an individual.


Read the decision at: R. v. Corner Brook Pulp and Paper.