Brad Gilmour comments in The Lexpert Special Edition – Energy, on how Canada’s changing environmental legislation will affect regulatory law and litigation. He says the potential for larger fines has also increased significantly in environmental prosecutions, particularly under the Fisheries Act and the Migratory Birds Convention Act, since increased penalties were introduced in 2013 and 2017.

“The trend over the last decade is upward in terms of increasing inspections, prosecutions and amendments to legalization to increase penalties,” Gilmour says. Under the two Acts noted above, maximum fines have increased significantly, he adds; for example, if the Crown chooses to proceed summarily for a second offence, the fines could reach as high as $8 million, with the potential to multiply by the number of days an environmental incident is not successfully managed. 

The trend has crystallized into considering five sentencing factors, Gilmour adds: culpability, prior record, damage or harm, remorse and deterrence. “The courts have said the most important is culpability, which goes back to having proper procedures in place [to] prevent an incident from occurring” in the first place; this will provide a defence and may lower the penalty. “Due diligence is key.” The second most important factor would be the degree of damage or harm, he says.