R. v. Mossman

R. v. Mossman

The offences are strict liability regulatory offences; secondary liability under the EMA, Mines Act and Fisheries Act does not require proof of mens rea or knowledge of the specific breach—authorization, permitting or acquiescence can be established by omissions and failure to implement reasonable systems by a directing mind; the trial judge properly upheld convictions for the exceedance offences based on Mossman's role and systemic monitoring failures but erred in acquitting on failure to report and dumping by over‑focusing on knowledge and direct acts; those acquittals are set aside and remitted for retrial because the appellate court cannot safely make new findings of fact.

Citation
2024 BCSC 443
Parties
Crown: Rex; Defendant/appellant: Benjamin Mossman; Co Accused: Dirk Meckert
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
15 March 2024
Procedural Posture
Criminal Regulatory/environmental Offences (summary Conviction) / Appeal to the Supreme Court of British Columbia From Provincial Court Order (retrial)
Outcome
Defence appeal against convictions for exceedance offences dismissed; Crown appeal against acquittals for failure to report and dumping offences allowed in part; acquittals on failure to report and discharge counts set aside and matter remitted for new trial; convictions for counts 2–10 and 18–21 upheld.
Legal Topics
Strict Liability, Secondary Liability (director/officer Liability), Failure to Report Spills, Unauthorized Discharge/dumping, Permit Compliance and Monitoring, Remedy and Standard of Review
Source Language
English
Environmental Law Criminal Law Regulatory Offences Fisheries Law Mining Law Strict Liability Secondary Liability (director/officer Liability) Failure to Report Spills +3 more

Case Brief

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Parties

Rex

Crown

Benjamin Mossman

Defendant/appellant

Dirk Meckert

Co Accused

Procedural Posture

Criminal Regulatory/environmental Offences (summary Conviction) / Appeal to the Supreme Court of British Columbia From Provincial Court Order (retrial)

Legal Issues

  1. 1 Whether the offences are strict liability and whether mens rea or knowledge is required for primary or secondary liability
  2. 2 Whether secondary liability under EMA s.121/Mines Act s.37(5)/Fisheries Act s.78.2 requires knowledge of the breach or merely authorization/permitting/acquiescence
  3. 3 Whether the respondent as mine manager and directing mind had actus reus for primary liability for failure to report and for deposit/dumping offences

Ratio Decidendi

The offences are strict liability regulatory offences; secondary liability under the EMA, Mines Act and Fisheries Act does not require proof of mens rea or knowledge of the specific breach—authorization, permitting or acquiescence can be established by omissions and failure to implement reasonable systems by a directing mind; the trial judge properly upheld convictions for the exceedance offences based on Mossman's role and systemic monitoring failures but erred in acquitting on failure to report and dumping by over‑focusing on knowledge and direct acts; those acquittals are set aside and remitted for retrial because the appellate court cannot safely make new findings of fact.

Court Disposition

Defence appeal against convictions for exceedance offences dismissed; Crown appeal against acquittals for failure to report and dumping offences allowed in part; acquittals on failure to report and discharge counts set aside and matter remitted for new trial; convictions for counts 2–10 and 18–21 upheld.

Orders

  • Dismiss defence appeal with respect to counts 2–10 and 18–21 (exceedance offences); convictions upheld
  • Allow Crown appeal from acquittal on failure to report and discharge counts (counts 1,16,17,22,23,29) and set aside those acquittals