Court of Appeal Confirms Director and Officer Liability for Environmental Offences Does Not Require Knowledge of the Offence

On February 26, 2026, the British Columbia Court of Appeal released its unanimous decision in R. v. Mossman, confirming that corporate directors and officers can be held personally liable for environmental offences without requiring the Crown (prosecutors) to prove they had knowledge of the circumstances surrounding the commission of the offence. These “secondary liability” offences are strict liability offences, meaning that the defence of due diligence continues to apply.

Background

Mr. Mossman was charged with various offences under the Environmental Management Act (EMA) and the Fisheries Act in relation to Banks Island Gold Ltd.’s (BIG) Yellow Giant mine (Mine). The charges included offences related to discharges of mine waste into the environment, discharging substances above permitted amounts, constructing or operating unauthorized works in a stream and failing to report. Mr. Mossman was a director, president and chief operating officer of BIG and the mine manager of the Mine.

In July 2023, the British Columbia Provincial Court found Mr. Mossman guilty of breaching the Metal and Diamond Mining Effluent Regulations (Regulations) and discharging substances above the limits allowed by BIG’s waste discharge permit. The Provincial Court found Mr. Mossman not guilty of the other charges. See our previous Blakes Bulletin on the Provincial Court’s decision: “The Buck Stops at the Top” – Lessons Learned: Mining Company Executive Found Guilty of Environmental Offences.

Mr. Mossman and the Crown both appealed the Provincial Court’s decision. On appeal, Mr. Mossman argued that knowledge of the circumstances surrounding the non-compliance was a requirement for finding secondary liability. In R v Mossman, 2024 BCSC 443, the Supreme Court of British Columbia dismissed Mr. Mossman’s appeal and allowed the Crown’s appeal of the acquittals of other charges, remitting those matters for a new trial.

Mr. Mossman was granted leave to appeal the Supreme Court’s decision on two issues related to the scope of secondary liability. Both grounds of appeal essentially raised the same question — whether the secondary liability provisions of the EMA and the Fisheries Act require the Crown to prove Mr. Mossman knew of the circumstances surrounding BIG’s commission of the offences, including BIG’s activities that constitute the prohibited conduct of its offences.

The Court of Appeal Decision

The Court of Appeal dismissed Mr. Mossman’s appeal of the Supreme Court’s decision.

The secondary liability provisions provide that directors and officers of a corporation who “directed,” “authorized,” “permitted” or “acquiesced” in the commission of an offence also commit the offence, regardless of whether the corporation is convicted. The key question before the Court of Appeal was whether these terms require the Crown to prove the accused director or officer had knowledge of the specific circumstances surrounding the prohibited conduct.

Mr. Mossman’s position was that the words “directed,” “authorized,” “permitted” and “acquiesced” indicate a level of personal involvement in the offence committed. In particular, the word “acquiesced” suggested an agreement to the circumstances that resulted in BIG’s prohibited conduct. He argued that the Crown must therefore prove the accused knew or was aware of the activities that led to the offence to prove the accused actively or passively agreed to allow them to continue.

The Court of Appeal rejected Mr. Mossman’s position, finding that, because the EMA and the Fisheries Act are both regulatory statutes designed to protect the environment and public welfare, the offences were presumed to be strict liability offences and the Crown is not required to prove intent. The Court of Appeal also disagreed with Mr. Mossman’s position that the inclusion of “acquiesced in” in the secondary liability provisions means that the Crown must prove a director or officer had knowledge of the circumstances of the offence. Rather, the Court of Appeal held that in this context the words “acquiesced in” encompass a failure to prevent a foreseeable event that arose from a regulated activity.

Establishing Mr. Mossman’s liability required two aspects: proving the company’s commission of the offence and Mr. Mossman’s active or passive involvement in the offences considering the nature of his responsibilities. His personal liability flowed from his voluntary assumption of responsibility, which carried a corresponding power to control or prevent the harm from occurring. The Court of Appeal noted that requiring proof of subjective knowledge would incentivize corporate leaders to remain “willfully blind” to foreseeable risks, which would ultimately undermine the objectives of environmental protection legislation.

Key Takeaways

The Court of Appeal’s findings with respect to secondary liability will be of particular interest to officers and directors of companies with environmental compliance obligations. If a director or officer has the authority, capacity and responsibility to implement systems, ensure compliance or stop harmful environmental practices, a failure to act can constitute acquiescence, particularly where the risk was foreseeable and within the individual’s operational or managerial purview — even if the director or officer did not have knowledge of the specific conduct at issue.

The decision is expected to have a broad reach. The language of “permitted” and “acquiesced” are commonly used in secondary liability provisions in a variety of environmental statutes beyond those at issue in the decision. Although charges against officers and directors personally have been relatively uncommon under environmental statutes in British Columbia, they have become far more common in other provinces in recent years. This decision could reinforce the significance of director and officer liability and could result in increasing enforcement action.

Due diligence remains the most common and complete defence to environmental offences. Directors and officers of companies with environmental compliance obligations should ensure there are adequate systems in place to ensure environmental compliance and prevent the commission of an offence.

For more information, please contact the authors or any other member of our Environmental group.