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The British Columbia Court of Appeal dismissed the appeal in R. v. Mossman, 2026 BCCA 75, confirming that a director, officer, or agent can be held criminally responsible for their corporation's actions under secondary liability provisions in environmental legislation, even where the director, officer, or agent had no knowledge of the circumstances surrounding a corporation's regulatory offence.
The Court of Appeal confirmed that individuals who choose to participate in regulated industries accept heightened legal risk.
Background
The appeal arises from the long‑running prosecution related to the operation of the Yellow Giant Mine in Northwestern BC by Banks Island Gold Ltd. ("BIG"). Mr. Mossman was a director, president, and the chief operating officer of BIG, as well as the designated mine manager in charge of daily operations.
Mr. Mossman was charged with three types of offences relating to BIG's activities:
- discharging substances in excess of permitted limits (the "Exceedance Offences");
- failing to report spills and discharges to regulators (the "Failure to Report Offences"); and
- unlawfully discharging mine waste into the environment (the "Discharge Offences").
The Crown did not prosecute BIG for these offences. Instead, it charged Mr. Mossman and another employee for the company's offences.
Of importance, Mr. Mossman was charged pursuant to s. 121(1) of British Columbia's Environmental Management Act, RSC 1985, c F-14 ("EMA") and s. 78.2 of the federal Fisheries Act, RSC 1985, c F-14. Both of these secondary liability provisions impose personal liability on corporate actors who "authorize, permit, or acquiesce" in their companies' offences.
Following a retrial in provincial court, Mr. Mossman was convicted of the Exceedance Offences but acquitted of the Failure to Report and Discharge Offences. On appeal to the B.C. Supreme Court, Mr. Mossman's appeal from the convictions was dismissed, the acquittals were vacated, and a new trial on the remaining counts was ordered. For more information, read our previous blog.
Mr. Mossman appealed the summary conviction appeal.
Key Takeaways
The Court of Appeal's decision confirms that secondary liability provisions in environmental and other public welfare statutes are presumptively strict liability offences, and will be interpreted in that light. The Crown is not required to prove that a director or officer knew of the specific circumstances or activities giving rise to a corporation's regulatory offence, unless the statute expressly requires such proof.
Individuals who choose to operate in regulated industries accept a heightened risk of penal consequences without having the protections afforded under criminal offences. For directors and officers in regulatory industries, the decision underscores the importance of due diligence as the primary, and often only, route to avoid liability in regulatory offences given that liability will turn on control and the reasonable steps taken to prevent harm, not on moral fault.
The Issue Before the Court of Appeal
The appeal turned on a single question: do the secondary liability provisions in s. 121(1) of the EMA and s. 78.2 of the Fisheries Act require the Crown to prove that a director or officer knew of the circumstances surrounding the corporation's commission of the charged offences, including the activities constituting the actus reus?
Mr. Mossman argued that provisions imposing liability on directors and officers who "authorize", "permit", or "acquiesce" in a corporate offence require proof that the individual knew of the specific circumstances or activities that gave rise to the breach. He maintained that secondary liability should be different from the company's own strict liability: while the company might be responsible without proof of intent, an individual officer should only be convicted if the Crown proves that they knew about the risky or unlawful conduct and chose not to act.
Mr. Mossman urged the Court not to interpret secondary liability provisions so broadly as to presume his liability solely based on his role in the company. Doing so, he alleged, would be unfair given the quasi-criminal nature of the EMA and the Fisheries Act.
The Court of Appeal's Decision
The Court of Appeal unanimously rejected Mr. Mossman's submissions and dismissed the appeal.
The Court stated that both the EMA and the Fisheries Act are regulatory statutes that aim to protect public welfare and the environment, and that offences under these statutes are presumptively strict liability offences. The Court found that nothing in the wording, context, or purpose of the secondary liability provisions displaced that the presumption or imported a knowledge requirement. Language importing mens rea would need to be express (for example, by using language such as "knowingly" or "wilfully").
Further, the Court held that "acquiescence" in the regulatory context encompasses a failure to prevent a foreseeable offence associated with a regulated activity. A corporate actor cannot avoid liability by remaining unaware of risks that fall within the scope of their responsibilities.
The Court emphasized that regulatory offences differ fundamentally from "true" crimes. Their focus is not moral blameworthiness, but rather the enforcement of minimum standards of conduct and care to prevent future harm. Within this framework, secondary liability provisions are meant to incentivize individuals who are in a position to control corporate activities to take the necessary steps to prevent foreseeable harm.
Notably, the Court justified treating regulatory and criminal offences differently because individuals who engage in a regulated industry do so by choice and have significant control over the harm caused.
The Court was careful to note that secondary liability is not imposed automatically by virtue of a person's title. Control is the key factor: the individual must be responsible for controlling the risk that materialized. Once the Crown establishes the actus reus of the offence within a strict liability framework, the accused's protection lies not in the absence of knowledge, but in the due diligence defence.
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