Creative sentencing initiatives and ISO 14001.

• Author: Graydon, Charalee F.

Courts across Canada have recognized new sentencing alternatives to address environmental violations. As early as 1980, the court recognized its broad sentencing powers. In the decision of R. v. United Keno Hill Mines, 1980, the court stated, "Fines alone will not mould law abiding corporate behavior. Fines are only one part of sentencing arsenal to foster responsible corporate behavior. A greater spectrum of sentencing options is required to ensure effective deterrence and prevent illegal economic advantages accruing to corporations willing to risk apprehension and swallow harsh fines as operating costs."

One of the new initiatives has involved the implementation of ISO 14001 Environmental Management Systems in an attempt to incorporate preventative measures in sentences and to encourage responsible corporate behavior. Evidence of sentencing decisions involving ISO 14001 Environmental Management Systems can be found in two cases.

The well-known case of R. v. Prospec Chemicals Ltd., 1996, was the first reported Canadian sentencing initiative involving ISO 14001. In R. v. Prospec Chemicals Ltd., an offence dealing with contravention of a condition of an approval, the Court accepted a joint sentencing submission from the Crown and Prospec Chemicals Ltd.: in addition to any other penalty imposed under the Alberta Environmental Protection and Enhancement Act, Prospec Chemicals Ltd. would obtain and provide evidence of certification under the ISO-CD 14001 Environmental Management Systems specification. To ensure compliance with the Order, Prospec Chemicals Ltd. was also ordered to post a letter of credit in the amount of $40,000 to Her Majesty the Queen in Right of the Province of Alberta. In the event of non-compliance with the Court's Order, the letter of credit was to be forfeited to Her Majesty the Queen.

A recent decision from the Ontario Provincial Court has echoed the initiative of the Prospec decision. In R. v. Prototype Circuits Inc., now known as Coretec Inc. and Mohammed Zadeh, 1998, the Court accepted a sentencing submission consented to by the parties. Coretec involved offences committed in relation to failure to give notice of the proposed export of a substance specified on the list of Hazardous Wastes Requiring Notification under the Canadian Environment Protection Act (CEPA). Under the CEPA legislation, the Court could, instead of convicting the offender, order that the offender be discharged on conditions having any or all of...