Punishing polluters: Can restorative justice work?

Take a look at Environment Canada's enforcement page and a pattern emerges: many companies, a handful of individuals, a lot of fines, very little jail time.

But in a week when an Edmonton dry-cleaner was imprisoned for improper storage of a toxic chemical, within days of a B.C. provincial court judge fining mining giant Teck $3.4 million for discharging heavy metals into the Columbia River, you have to wonder which punishment will have greater lasting effect.

• Edmonton dry cleaner to face imprisonment for dangerous chemical storage
• B.C. judge issues $3.4M fine to Teck mining for polluting river

It's easier to put an individual businessman in handcuffs than to pinpoint the people in a multinational corporation who should face justice.

But as Canada's premiers meet this week in Vancouver to discuss ways to combat climate change, they are also going to have to consider more effective ways of holding polluters accountable for their crimes.

To that end, British Columbia has already been experimenting with the use of an unorthodox — if ancient — solution: restorative justice. Advocates believe it's the way forward.

"By design, the court-based process is about determining guilt or innocence," says Brenda Morrison, director of Simon Fraser University's Centre for Restorative Justice.

"But if you want to address the underlying concerns of the community, then we're better able to address it when we have the courage to sit down with each other and work it out."

'Bitter' vs. 'better'

Restorative justice dates back thousands of years and is often associated with aboriginal tradition.

The practice took root in the modern Canadian justice system in 1974 after a probation officer in Elmira, Ont., asked a judge to consider forcing a pair of vandals to meet their victims and own up to their crimes.

According to the B.C. Ministry of Environment's violations database, the province has sent seven environmental cases to restorative justice since 2010.

The issues range from an outfitting company's accidental shooting of a grizzly bear to Encana's uncontrolled release of sour gas near Pouce Coupe in 2009 — an incident that resulted in the evacuation of local residents from their homes.

Teck was involved in one case stemming from the discharge of mercury into the Columbia River and a leachate overflow into Stoney Creek in September 2012.

In basic terms, restorative justice involves offenders facing victims in one way or another. The ministry has set out guidelines for offenders to qualify for "community environmental justice forums."

Those include situations where an offence resulted from an accident or where offenders have demonstrated a sincere desire to fix the damage caused by their actions. You have to admit guilt.

The ministry says the forums are not considered appropriate for offenders who deliberately commit acts with the potential for environmental or human harm.

"Punishment makes people bitter, whereas restorative solutions make people better," says Trevor Chandler, a facilitator with the Lillooet Restorative Justice Program.

"You have to admit that you goofed. And part of the discussion and part of the process you work through is what was the effect of my goof on the community and therefore on the environment? And what can I do to make sure we don't do that again. Not how can I make sure I don't get caught again."

Bad event turned good

The primary goals of any Canadian criminal sentence procedure are supposed to be denunciation of crime and deterrence. To that end, Morrison says, empirical evidence shows that accused who go through restorative justice are less likely to reoffend.

At the very least, supporters say, the fines agreed on as part of restorative justice go to community organizations as opposed to government coffers.

In the hunting case, the outfitter contributed $3,500 toward DNA analysis of the region's grizzly bear population. And as part of $250,000 in fines, Encana contributed to an upgrade of the Pouce Coupe volunteer fire department.

The community forum involving Teck resulted in a fine of $325,000. At the time, Adam Monteith was president of the LeRoi Community Foundation, one of the recipients of the money.

Monteith, who now lives in Winnipeg, says the restorative justice process recognizes the symbiotic relationship that often exists between industry and the small towns most often affected by pollution.

"The company pulls a pool of labour from the community. And the community's economic development is based on the success of that smelter continuing to exist," he says.

Monteith didn't take part in the forum itself, but says he spoke about it with a city councillor who did. "He felt that through their efforts, they could turn around a bad event into something positive for the community."

Too touchy-feely?

Perhaps that sounds a little too much like a made-for-TV movie-style intervention for you: "Dad — your addiction to chemicals is killing this family!"

And even Chandler, a fan of restorative justice, questions an approach that sees a ministry of environment employee, as opposed to a neutral facilitator, pick the so-called "victims" to represent the community.

And from a public perspective, how does government determine genuine remorse on the part of a company? When does "lack of due diligence" amount to a crime in and of itself?

Tim Ewert was one of the Pouce Coupe farmers affected by the 2009 sour gas leak that led to a community forum with Encana. He says local politicians attended, but many of those actually affected, like him, did not.

To his mind, that threatens to turn the whole process into a public relations exercise.

"A good part of restorative justice should start with prevention," Ewert says. 

"We shouldn't have industry the government fosters just go whole hog at the exploitation of a resource before we understand the inherent risks involved in it."

Unique approaches to justice are only part of the equation.

Neither courts nor community environmental justice forums will work if governments don't enforce their own environmental laws.