Environmental compliance – Creative sentencing – Overview

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 – Hazardous Waste Spill 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.

Cancelling a project

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.

Project commitments

The 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. As well, reports are due when the project is complete.

Reporting

Currently, the Communications branch of Alberta Environment and Protected Areas posts information bulletins on their external website when sentencing decisions are made by the court.

• Environmental compliance prosecutions – Concluded files

Creative sentencing orders are posted along with the bulletins.

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 an annual report on the program, which is posted at:

• Compliance Assurance Program

Contact

For further information on creative sentencing, contact:

Tricia Kirkpatrick
Phone: 403-340-7749
Toll free: 310-0000 before the phone number (in Alberta)
Email: [email protected]

Environment and Protected Areas Outreach Services
Hours: 8:15 am to 4:30 pm (open Monday to Friday, closed statutory holidays)
Phone: 1-877-944-0313
Toll free: 310-3773 before the phone number (in Alberta)
Email: [email protected]