Recently, the BC Supreme Court issued its decision in R v Mossman, 2024 BCSC 443. The case involved two appeals from summary convictions under the Environmental Management Act and the Fisheries Act (collectively, the "Acts"). The underlying offences occurred at a gold mining site operated by a company near Prince Rupert, British Columbia.

The appeals relate to the liability of the director, president, and chief operating officer of the Company, and the designated 'mine manager' under the Mines Act. He was charged with several offences under the Acts, which the Court divided into three categories:

  1. Failing to report environmental spills and dumping (the "Failure to Report Offences");
  2. Discharging mine waste into the environment (the "Dumping Offences"); and
  3. Discharging substances in concentrations exceeding permitted amounts (the "Exceedence Offences").

The offences at issue provided for liability in two ways:

  1. Primary liability – the liability of the party who committed the office;
  2. Secondary liability – the liability of the director or officer who directed, authorized, permitted or acquiesced to a company's commission of the offences.

At trial, the individual accused was acquitted of the Failure to Report and Dumping Offences, and convicted of the Exceedance Offences. The Crown appealed the former finding, and the accused appealed the latter.

The Arguments and Outcome on Appeal

The accused's appeal centered largely around whether there was a requirement for the Crown to prove mens rea (intent, or knowledge of the circumstances of the offences), in order for him to be convicted for secondary liability in respect of the Exceedance Offences. He argued that because there had been no finding that he knew about the circumstances of the exceedance and did not react, he could not be convicted.

The Court dismissed these arguments, on the basis the regulatory offences involved were strict liability offences, such that the Crown was only required to prove the prohibited act to establish primary or secondary liability. The convictions were upheld, on the basis the accused was the controlling mind of the Company, and that it, in turn, had committed various offences. The fact the accused may not have had knowledge of the offences did not absolve him from liability.

Further, the acquittals on other counts were set aside on appeal.

The Court allowed the Crown's appeal from acquittal on the Failure to Report and Dumping Offences after finding that the trial judge had erred by focussing on the individual accused's knowledge and direct involvement with various events.

A new trial was ordered on this basis.

Key Takeaways

Directors and officers may not be able to rely on lack of knowledge to avoid liability for environmental and other strict liability offences.

Although not argued in this appeal, due diligence can provide a full defence to many strict liability offences. Indeed, proper due diligence can be critical to avoiding liability under certain statutory schemes.

This case illustrates the importance of those in leadership roles ensuring that the organizations they lead are taking appropriate steps to remain in compliance with applicable regulatory schemes.

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