As environmental problems have grown more widespread, as public knowledge has increased regarding the extent of non-compliance with regulatory controls, and as environmental emergencies have occurred from time to time, there has been more political will to adopt aggressive approaches to enforcement of environmental laws. Nowhere is this more apparent than in the increased number of environmental prosecutions. Once the prosecution results in a conviction, the courts then address the penalties and remedies available in sentencing.

Modern environmental statutes provide a wide array of sentencing options, offering the potential for creative, environmentally productive sentences. Until recently, however, prosecutors and the courts had yet to utilize the wide range of sentencing options available to them. The case law indicates that the monetary fine or punishment continues to be the sentence most frequently imposed in responding to environmental offences. Since there is the availability and growing interest in alternative approaches to dispute resolution across the complete legal spectrum, there are sound reasons to review and analyze the trends and opportunities for environmentally constructive sentencing alternatives in the environmental law area.

The most frequently stated objective of sentences in environmental cases is general deterrence. General deterrents are very popular as a leading concept behind modern theories of sentencing, even though they have some rather obvious limitations. To paraphrase one of my favourite critics of general deterrents, C.S. Lewis has said that punishment through general deterrents amounts to punishing the offender for what others might do wrong in the future rather than for what the offender did wrong in the past. Nonetheless the deterrent theory of punishment prevails.

In seeking to achieve deterrents, the courts have imposed fines on the offending parties for at least two reasons. First, to act as a specific deterrent, by penalizing the party responsible through economic sanctions. Secondly, to act as a general deterrent to the public at large, by sending a message to the community that violating environmental laws is not a profitable manner of carrying on business.

Generally, the fines levied by courts against offending parties have risen dramatically and are continuing to rise. The same environmental offence today has a much greater potential fine for a corporation or an individual than ten years ago. Fines imposed against a corporation have remained significantly higher than fines against individual directors of a corporation. In the punishment by fines, however, a blunt "big stick" approach governs the complex behaviour and knowledge of companies and individual alike in achieving environmental compliance. Big sticks, especially blunt ones, are rarely if ever the most effective means of encouraging environmental compliance.

There have been, however, some glimmers of enlightened application of the monetary penalties in recent years by the courts. The courts, in some instances, have become more creative in determining the manner in which these fines are to be used. Some examples of the courts creative use of fines are: requiring a convicted company to pay $100,000 to promote the conservation of fish habitat; ordering a company to pay $30,000 to develop a local toxic waste program; or directing a corporation to pay their fine to a local school board for the purpose of environmental education. There is little doubt that fines will continue to be used by the courts in sentencing environmental offenders.

A much overlooked power of the courts in sentencing in environmental prosecutions is the flexible tool of the probation order. The courts have at their disposal a general power to impose a probation order on the offending party that is convicted. In other words, the court is given a general power to order the offender to comply with conditions that the court considers reasonable and just under the circumstances.

As a condition of probation the court may require an offender to publish the facts of their conviction. Publication of conviction information, for example, provides the court with an alternative to imposing fines and provides information to the public regarding an organization's poor environmental record. In the well known case of R. v. Bata Industries Ltd., the court ordered the company to publish on the front of their newsletter for international distribution, the facts leading to their conviction, the name of the directors involved and the details of the penalties and terms of probation. The use of publication as a condition of probation is especially effective in circumstances where the reputation of the company is a vital component to their success in the market-place.

In addition to having a potentially far reaching effect, a condition requiring the sharing of information is consistent with the fundamental purpose of environmental sentencing, which is to deter or prevent future environmental harm. For these reasons this type of probationary condition is likely to continue to have much appeal to the courts.

Another option with the probationary order authority available to the court is to sentence an offender to perform community service. Such an order may be useful in cases where an offender does not have the economic resources to pay a fine or where an offence is committed by a public organization. This sentencing tool provides the court with a great deal of flexibility in tailoring the sentence to meet the particular circumstances of the offender, and, to some extent, to meet the needs of the affected community.

Although director liability is a relatively new area in environmental law, the courts have imposed substantial fines and, albeit rarely, prison sentences against directors of corporations. However, despite the efforts of the courts to hold directors of corporations responsible for environmental damages resulting from their acts or omissions, with respect to fines the courts have been unable to prevent indemnification of corporate directors.

The most significant decision on the issue of indemnification of fines against directors is found in the recent Court of Appeal decision in R. v. Bata Industries Ltd. Bata Industries Limited was charged and convicted under the Ontario Water Resources Act with permitting the discharge of industrial waste into the ground. Two directors of Bata were also charged and convicted under the OWRA with failing to take all reasonable care to prevent the discharge of the material into the ground. They were each fined $12,000. Furthermore, as part of the company's probation order, inter alia, the court imposed a condition that Bata was prohibited from indemnifying the directors for the amount of the fine. On appeal, the Ontario General (Division Court) reduced the fine to $6,000 stating that "this would be a sufficient amount to deter them personally (the directors) and to convey a message to other corporate officers and directors who failed to comply with environmental laws". The court at the first level of appeal, however, upheld the condition of the probation order providing that the company could not indemnify the directors.

Bata sought and received leave to appeal on the indemnification provision in the probation order. The Court of Appeal held that the indemnification provision was improper because the Provincial Offences Act provides that the court may prescribe as a condition in a probation order such other conditions relating to the circumstances of the offence as the court considers appropriate to prevent similar unlawful conduct or to contribute to the "rehabilitation" of the defendant. The Court of Appeal concluded that, by imposing the prohibition order against Bata, the intention of the court was not to deter Bata or other corporations from engaging in environmentally objectionable activities, but rather, the focus of the probation order was on the directors.

In addition, the court also noted that any probation order made under the Provincial Offences Act can only remain in force for a maximum of two years. Therefore, the imposition of a non-indemnification provision as a condition of probation would have little effect. For these reasons the Court of Appeal in the case of Bata struck out such a provision.

Therefore, any type of probation order imposed by the courts in an environmental prosecution needs to be legally directed at rehabilitation. Rehabilitation of the offender and the environment is also the clear intention of environmental legislation generally. Therefore, in the scope of sentencing in environmental offences, the flexibility and authority of a creative, fact specific probation order is arguably the best means to achieve the purposes of the environmental legislation.

One final thought on the sentencing option of imprisoning an individual accused. Although imprisonment is available to be used as a sentencing option against individual offenders, the courts have only imposed such a sentence in very limited circumstances. Imprisonment is generally utilized by the courts in situations where the offenders have acted knowingly and with a contempt for their legal obligations. These situations are rare. Furthermore, the use of imprisonment as a tool for general deterrence of future offences or general education is limited, for obvious reasons, to officers and directors of corporations. Therefore, the low effectiveness and the poor educational benefit by the threat of imprisonment demonstrates that it should only ever be seen as punishment of last resort.

In summary, as long as governments prosecute for environmental offences, a critical issue will be the appropriate sentencing and punishment theories and practice. Practical and appropriate sentences, including creative probationary orders should be sought after as a primary focus of the sentencing process. In the writer's view, the mere "big stick" theory of large fines is both inappropriate and ineffective as the primary or only sentencing approach by the courts.

Time will tell if the revenue driven, cash strapped governments can place environmental improvement in the sentencing process above current fiscal interests. For the sake of an improved environment, one should hope that the courts start to move in that direction regardless of the motivation and self-interests of governments and their prosecutors.