As regulatory statutes, the purpose of environmental protection legislation is to protect the welfare of the public and to protect the environment. Individuals may be held directly liable for the commission of environmental offences, but they may also be held liable for a corporation’s offences through the application of secondary liability provisions. In the context of environmental offences, there has been some confusion as to whether secondary liability provisions include a mens rea element. That is, whether the individual must be shown to have had knowledge or intent with respect to the corporation’s offence or the circumstances of the corporation’s offence.
On February 26, 2026, the British Columbia Court of Appeal (the Court) released its decision in R. v. Mossman,[1] addressing the question of whether a mental element is required to impose liability under secondary liability provisions of environmental protection legislation. The Court dismissed the appeal, holding that absent express statutory language imposing a mens rea element, strict liability principles apply to secondary liability provisions, such that knowledge or intent is not required for an individual to be held liable.
Background
Benjamin Mossman (Mossman) was the director, president and chief operating officer of Banks Island Gold Ltd. (BIG), a mining company that operated the Yellow Giant Mine sites on Banks Island. As the designated mine manager, Mossman oversaw the “Discovery” and “Bob” sites. Mossman acted as the key operating mind, applied for permits, was the primary contact for regulators and ran daily operations.[2]
In January 2015, lab results of BIG’s discharged mine waste demonstrated that BIG had discharged zinc and total suspended solids at rates that exceeded permissible amounts on several dates in 2014. Between March and June 2015, BIG dumped mine waste at the site directly into a creek and failed to report the discharge to regulators. On June 24, 2015, at the Bob site, BIG stored waste in an open stope, which overflowed and spilled into a nearby stream due to heavy rainfall. BIG failed to report the spill and continued to dump mine waste into Bob for hours after the spill.
Mossman was charged with secondary liability for failing to report the environmental spills and dumping (the Failure to Report Charges), discharging mine waste into the environment (the Discharge Charges) and discharging substances in concentrations exceeding permitted amounts (the Exceedance Charges),[3] under the Environmental Management Act (EMA),[4] and the federal Fisheries Act (FA).[5] BIG was not charged.
Legislative framework
Section 121(1) of the EMA states that if “a corporation commits an offence under [the] Act, an employee, officer, director or agent of the corporation who authorized, permitted or acquiescedin the offence commits the offence whether or not the corporation is convicted.”
Similarly, section 78.2 of the FA provides that “any officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence [by the corporation] is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted.”
Trial court decision[6]
The trial judge dismissed the Failure to Report and Discharge Charges, but convicted Mossman of the Exceedance Charges. The trial judge outlined the principles of strict liability in the regulatory context, stating that the Crown is not required to prove mens rea. To hold Mossman liable under secondary liability, the Crown is required to prove his involvement in the offences by establishing positive acts, the failure to act or the lack of action to prevent the foreseeable offence.[7]
The judge convicted Mossman of the Exceedance Charges on the basis that he was responsible for ensuring compliance with permits and seeing that environmental monitoring was completed as required.[8] By failing to cease operations until discharges were within permitted ranges, Mossman acquiesced to the continuation of mining operations and exceedance discharges.[9]
With respect to the Failure to Report Charges, the trial judge had a reasonable doubt that Mossman knew of the dumping at Discovery or the spill at Bob, such that the Crown failed to prove that he directed, authorized, permitted or acquiesced in the failure to report.[10]
Similarly, the trial judge refused to convict Mossman on the Discharge Charges since it was not clear that the discharge at Discovery was reported to Mossman and Mossman may not have been aware of the wastewater levels rising dangerously at Bob.
Summary conviction appeal decision[11]
Both Mossman and the Crown appealed. The summary conviction appeal judge dismissed Mossman’s conviction appeal, allowed the Crown’s appeal on the dismissal of the remaining charges and remitted the dismissed counts for a new trial.
The summary conviction appeal judge focused on whether liability flowed from Mossman’s position as the mine manager, the meaning of acquiesced and whether knowledge of the circumstances amounting to the breach was a requirement for a finding of secondary liability.
The summary conviction appeal judge held that the trial judge had correctly applied the principles of strict liability to the Exceedance Charges, but erred with respect to the Failure to Report Charges by focusing on Mossman’s knowledge and his direct involvement in the breaches committed by BIG.[12] Similarly, the trial judge erred with respect to the Discharge Charges by focusing on Mossman’s knowledge and direct involvement in the discharges rather than by assessing whether Mossman was strictly liable by act or omission.[13]
Court of Appeal decision
On appeal, Mossman argued that the summary conviction appeal judge erred in law in holding that ss. 121(1) of the EMA and 78.2 of the FA do not require the Crown to prove he knew of the circumstances surrounding the company’s commission of the charged offences.[14]
The Court dismissed the appeal, holding that sections 121(1) of the EMA and 78.2 of the FA did not displace the presumption of strict liability or require proof that an accused knew of the circumstances surrounding the company’s commission of the charged offences.
The Court noted that the purpose of the EMA and FA, as regulatory statutes, is to protect the welfare of the public and the environment by directing the prevention of future harm through the enforcement of minimum standards of conduct and care.[15] Regulatory offences are presumed to fall into the strict liability category, absent express statutory language to the contrary. While the Crown does not have to prove mens rea, an accused can avoid liability through an affirmative due diligence defence by showing that they met the prescribed standard of care and took all reasonable care to avoid the risk of harm.
From a policy perspective, strict liability offences are designed to put pressure on persons acting as the directing or operating mind of a company. Whether an individual should be held liable through secondary liability will depend on their role and responsibilities, but the failure to take steps to prevent a foreseeable offence may constitute involvement in the offence or inactivity that would enable or allow a foreseeable offence to occur.
The Court held that words such as “cause” and “permit” connote strict liability. In particular, “permit” centers on a defendant’s lack of interference or its failure to prevent a foreseeable occurrence. In contrast, words such as “wilfully”, “with intent”, “knowingly”, or “intentionally” and “for the purpose of” import a mens rea element to the offence.[16]
The Court rejected Mossman’s arguments that the words “directed”, “authorized”, “permitted” and “acquiesced” required personal involvement in an offence committed by a company, and that the Crown must prove that the accused knew or was aware of the circumstances or activities to prove that the accused actively or passively agreed to allow the offence to occur.[17] Further, there was no language in either provision displacing strict liability principles or incorporating an intentional or mental element. To import a knowledge requirement without express language would render regulatory schemes unduly difficult to enforce, and would allow officers, directors or agents to avoid secondary liability by remaining wilfully blind.[18]
Takeaway
Mossman adds appellate clarity to a somewhat uncertain area of regulatory liability. The Court confirmed that absent express statutory language importing a knowledge or intent element, secondary liability in the environmental regulatory context is strict liability. That is, directors, officers and agents do not need to know or be aware of the circumstances surrounding the commission of the offence. If an offence was foreseeable, and an individual holds responsibility for preventing the commission of that offence, the individual may be held liable through secondary liability provisions. Nonetheless, directors, officers and agents may avoid liability by establishing that they met the prescribed standard and took all reasonable care to avoid the risk of harm.
In light of the Court’s decision in Mossman, it is imperative that directors, officers and agents who engage in a regulated activity understand and comply with their roles and responsibilities.
For more information on this topic, please reach out to the authors, Dina Awad and Janson Fu.
[1] 2026 BCCA 75 [Mossman].
[2] Ibid at para 5.
[3] Ibid at para 10. Mossman was also charged with unauthorized works in and about a stream, which was not the subject of the appeal.
[4] Environmental Management Act, SBC 2003, c 53.
[5] Fisheries Act, RSC 1985, c F-14.
[6] R v Mossman and Meckert, 2023 BCPC 157.
[7] Mossman, supra note 1 at para 19.
[8] Ibid at paras 28-29.
[9] Ibid at paras 30-32.
[10] Ibid at paras 23-27.
[11] R v Mossman, 2024 BCSC 443.
[12] Mossman, supra note 1 at para 38.
[13] Ibid at para 40.
[14] Ibid at paras 42-43.
[15] Ibid at para 44.
[16] Ibid at para 54.
[17] Ibid at para 61-68.
[18] Ibid at para 71.
