BC Court of Appeal confirms that executives can be held accountable for environmental infractions

The British Columbia Court of Appeal recently confirmed that company executives can be personally liable for environmental infractions.

In R. v. Mossman and Meckert, 2023 BCPC 157, a British Columbia trial court found the President and COO of a BC mining company guilty of multiple counts of discharging substances above permitted amounts in relation to the company’s mining operations. The defendant was acquitted of the other charges laid against him, including failure to report the emission discharge.

These offences fall under regulatory statutes designed to protect the public and the environment. They are strict liability offences, meaning that if the Crown proves that the offence occurred, the accused can only avoid liability by showing they were duly diligent (i.e. they took all reasonable care to prevent the offence).

The defendant appealed his convictions to the BC Supreme Court and, in return, the Crown appealed the acquittals. In 2024, the BC Supreme Court upheld the convictions and sent the acquittals back for another trial. The defendant then appealed the BC Supreme Court order to the BC Court of Appeal, in hopes of avoiding a re-trial.

Before the BC Court of Appeal, he argued that in order for an officer, director or agent of a corporation to be liable for environmental offences committed by the corporation, the Crown had to prove that the officer, director or agent had personal knowledge of those activities. This argument was rejected by the Court, which clarified that in cases of strict liability, the Crown must only establish that:

• The corporation committed the offence
• The accused was actively or passively involved in the offence
• The nature of the breach was logically connected to the accused’s responsibilities

The Court’s reasoning for this distinction lies in the purpose behind regulatory offences in environmental statutes. They are not intended primarily to punish past criminal conduct. Rather, they exist to incentivize corporations to do everything in their power to prevent future environmental harm. By voluntarily assuming responsibility for the corporation’s operations, an officer, director or agent becomes responsible for taking all reasonable care to avoid the harm materializing in the first place.

If the defendant can prove that he or she did everything required of them, they will be acquitted. If the defendant is unable to establish a due diligence defence, then they will be convicted – regardless of whether the circumstances were known to them or not.

Key Takeaways

This decision confirms that directors and officers with environmental compliance duties can be liable for compliance infractions, even without any knowledge or intent of a specific incident. Company executives must take reasonable care to prevent offences from happening, including putting systems in place to proactively monitor compliance with environmental laws.

With the policy goal of preventing environmental offences from occurring in the first place, courts, legislators and regulators will seek to hold accountable those who have the power to prevent environmental offences.

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