Law360 Canada (April 29, 2026, 9:05 AM EDT) --

John L. Hill

On what basis can an officer and director of a corporation be held personally liable when the business they run breaks the law? Benjamin Mossman was a businessman who was personally charged with infractions incurred by the company he ran.

Mossman served as president, chief operating officer and designated mine manager of Banks Island Gold Ltd. (BIG) and was the central decision-maker responsible for day-to-day operations and regulatory compliance at the Yellow Giant Mine in British Columbia. He oversaw permitting, environmental compliance and mine operations, all of which were subject to strict environmental regulations governing waste discharge and reporting.

In 2014-2015, BIG committed several environmental violations: it exceeded permitted discharge limits for zinc and suspended solids, failed to properly monitor after failing to pay its testing lab, discharged waste into fish-bearing waters and failed to report spills at two sites. Despite lacking test results, the company continued operating and, in one instance, even dumped waste after a spill had begun.

The Crown charged Mossman and another corporate officer, Dirk Meckert, with multiple offences under the Environmental Management Act and the Fisheries Act, including failing to report spills, unlawful discharges and exceeding permitted contaminant levels. These were treated as strict liability offences, meaning the Crown did not need to prove intent, but the accused could avoid liability by demonstrating due diligence.

At trial, the judge found Mossman to be the key operating mind with ultimate authority over the mine. However, largely due to unreliable testimony from the main Crown witness and insufficient evidence of his direct involvement or knowledge, the judge acquitted Mossman of the failure-to-report and discharge offences. All charges against Meckert were dropped (R. v. Mossman, 2023 BCPC 157).

The judge convicted Mossman of the “exceedance” offences. He held that, regardless of direct knowledge, Mossman failed in his duty to ensure proper environmental monitoring and compliance. By allowing operations to continue without a functioning system to track discharge levels, particularly after the lab withheld results due to non-payment, Mossman acquiesced in the violations. No evidence of due diligence was presented, leading to his conviction on those counts.

The summary conviction appeal judge held that both appeals turned on whether the trial judge properly applied strict liability principles and the statutory provisions governing secondary liability under the Environmental Management Act and the Fisheries Act.

At trial, the starting point was that regulatory offences are strict liability offences that do not require the Crown to prove mens rea (Lévis (City) v. Tétreault, 2006 SCC 12; R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299). The key issues were whether liability could flow from Mossman’s role as mine manager, what “acquiescence” means, and whether knowledge of the breach is required for liability (R. v. Mossman, 2024 BCSC 443).

Justice Carol Ross confirmed that the offences are strict liability: the Crown needs only to prove the prohibited act (actus reus), not intent (mens rea), and that concepts such as control are central. She rejected the argument that secondary liability requires proof of knowledge and upheld the trial judge’s approach to the exceedance offences, dismissing Mossman’s appeal on those convictions.

However, she found errors in the acquittals on the Failure to Report and Discharge Offences. The trial judge wrongly focused on Mossman’s knowledge and direct involvement, rather than assessing his responsibility and control, and whether his acts or omissions amounted to acquiescence under the statutes. He also failed to properly consider whether Mossman fell within the class of persons legally required to report spills. Mossman appealed the dismissal of his appeal of conviction to the British Columbia Court of Appeal. The Appeal Court decision was delivered on Feb. 26 (R. v. Mossman, 2026 BCCA 75).

Because of these legal errors, the appellate court set aside the acquittals on those counts and ordered a new trial, concluding that the original findings did not necessarily establish liability under the correct legal framework.

Mossman’s appeal raised a single core issue: whether the Crown had to prove that he knew the circumstances and activities underlying his company’s offences to establish secondary liability under the Environmental Management Act and the Fisheries Act.

The court rejected his argument and upheld the summary conviction appeal judge’s decision. It held that the statutes constitute regulatory regimes aimed at preventing harm to the public and the environment, not at punishing moral wrongdoing. Accordingly, offences are presumed to be strict liability and do not require proof of mens rea (intent or knowledge). The secondary liability provisions (ss. 121(1) of the Environmental Management Act and 78.2 of the Fisheries Act) impose liability on corporate actors who “authorized, permitted, or acquiesced” in a company’s offence. These terms do not require knowledge unless expressly stated. “Acquiescence” in this context includes passive failure to prevent a foreseeable offence, not merely conscious agreement based on actual knowledge.

The Crown needs only to prove: (a) that the company committed the offence; and (b) that the accused, given their role and responsibility, was actively or passively involved in a way that failed to prevent foreseeable harm. The burden then shifts to the accused to show due diligence (i.e., that they took all reasonable steps to prevent the offence). Requiring proof of knowledge would undermine regulatory enforcement and allow corporate actors to avoid liability through wilful blindness.

The court held that the Crown need not prove Mossman knew the specific circumstances or activities constituting the company’s offences. Secondary liability rests on control, responsibility and failure to prevent foreseeable harm, not on subjective awareness.

John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). His most recent book, Acts of Darkness, (Durvile & UpRoute) has been shortlisted as one of five nominees for the Crime Writers of Canada’s Brass Knuckles Award for Best Nonfiction Crime Book. Contact him at johnlornehill@hotmail.com.

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