R. v. Mossman, 2023 BCPC 215

Citation: R. v. Mossman 2023 BCPC 215 Date: 20230927 File No: 29244-4-C Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. BENJAMIN MOSSMAN and DIRK MECKERT ORAL REASONS FOR SENTENCE RE: ACCUSED B. MOSSMAN OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: G. McDonald Counsel for the Defendants: C. Cheng and J. Mason Place of Hearing: Prince Rupert , B.C. Dates of Hearing: April 11-14, 19-21, June 20-22, July 11-14, 18-20, Sept. 26, 27, Oct. 3,4, Nov. 2,3, 2022, Feb.13, 27, April 11-14, July 7, Sept. 26, 2023. Date of Judgment: September 27, 2023

[1] THE COURT: On July 7, 2023, I found Benjamin Mossman guilty of Counts 2, 3, 4, 5, 6, 7, 8, 9, 10, 18, 19, 20, and 21 ofPrince Rupert Information 29244-4-C. As a result, Mossman is before the court for sentencing on nine counts of breaching a permit bydischarging prohibited amounts of zinc or total suspended solids (TSS) and four counts of breaching the Mine Metal Effluent Regulation(MMER) by discharging TSS over the prescribed limits. The Crown seeks a total penalty of $30,000 in fines while Mossman seeks a fineof no more than $500 on each count. [2] In my reasons for judgment after trial, reported at R. v.

Mossman and Meckert, 2023 BCPC 157, I found Mossman to be a keyoperating mind running the daily operation and possessing the power to implement safety systems at the Yellow Giant Mine site. Ifurther found that he participated in or acquiesced to the offences by failing to ensure appropriate safety measures were in place toprevent the violations in the first place. Accordingly, Mossman was found guilty according to the secondary liability provisions as thepresident of Banks Island Gold Ltd. (BIG) and mine manager of the Yellow Giant Mine site on Banks Island, British Columbia, operatedby BIG.

As this is an oral decision, I will not be referring in detail to the facts of the case which are set out in my reasons for judgment. [3] In R. v. Kalia Resources, 2022 BCPC 304, Judge Reeves sets out the basic framework for distinguishing regulatory andenvironmental offences from criminal offences. He stated: [9] Criminal offences are distinguished from regulatory offences and the objective reason for this was set out in R. v. Wholesale TravelGroup Inc., (SCC).

Justice La Forest held that conduct prosecuted as a crime is “so abhorrent to the basic values ofhuman society that [they] ought to be prohibited completely.” In contrast, regulatory offences are based upon prohibited conduct relatedto dangerous conditions that society, particularly the vulnerable, would be exposed to if left unregulated.

Regulatory legislation takes abroader consideration of the protection of the public and societal interests, in contrast to criminal law that focuses on individual intereststhat are placed in jeopardy through the moral fault of criminal conduct and which requires deterrence and punishment. “While criminaloffences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed tothe prevention of future harm through the enforcement of minimum standards of conduct and care.” As a result, regulatory offencesembody different concepts of fault than crimes.

Regulatory offences are directed towards the consequences of action and import a lesserdegree of culpability, in contrast to true crime convictions. The required degree of fault in regulatory offences is based on a standard ofreasonable care and not the moral blameworthiness found in criminal offences and thus, regulatory conviction carries with it only thestigma of having failed to meet a prescribed standard of care. As a result, within regulatory prosecutions, the protection of individualrights are to be applied less stringently and with a greater focus on enforcement than in criminal prosecutions (R. v.

Wholesale TravelGroup Inc., at pp 216 – 218). [4] In R. v. Brown, 2010 BCCA 225, a case that involved the harmful alteration, disruption, or destruction of fish habitat contrary tothe Fisheries Act, our Court of Appeal confirmed that the leading case on the principles of sentencing for environmental offences isTerroco Industries Limited, 2005 ABCA 141.

In doing so, our Court of Appeal reinforced that sentencing principles for environmentalregulatory offences require a unique approach, specifically emphasizing culpability, past involvement with the authorities, acceptance ofresponsibility, harm, and deterrence. [5] Justice Punnett released his decision six years ago in R. v. Schafhauser, 2017 BCSC 2287. Schafhauser was a

summaryconviction appeal involving a commercial salmon fisher in Haida Gwaii. Justice Punnett confirmed that environmental regulatorylegislation protects and preserves valuable resources. He stressed that infringements are to be taken seriously: [11] … Accordingly, the predominant sentencing consideration must be deterrence, both specifically of the accused and generally ofother members of the public who are inclined to act in the same manner.

Penalties must be sufficiently severe to communicate to theaccused that there is a … risk associated with their illegal activities both for the resource they are affecting and to themselves for theirconduct … [12] In this instance, the sentencing judge appropriately highlighted the need for an appropriate sentence to deter similar conduct bythe commercial fishing community generally and specifically by Mr. Schafhauser. I note that many of the authorities refer to the fact thata penalty should be more than simply a cost of doing business.

In particular, in this instance, that is significant because this is aregulatory statute designed to preserve a valuable resource. In sentencing on regulatory offences, our Court of Appeal has accepted thefollowing sentencing principles: culpability, prior record, acceptance of responsibility and remorse, the damage or harm done, anddeterrence … [6] Upon reviewing Terroco Industries Limited, Brown, and Schafhauser, I conclude that the MMER and the EnvironmentalManagement Act (EMA) protect and preserve a valuable resource, our natural environment.

Just like the Fisheries Act, the predominantsentencing consideration for offences committed contrary to the MMER and EMA is deterrence, specifically of the person beingsentenced and generally of other members of the public inclined to do the same or similar acts. Contraventions of the MMER and EMAare taken seriously. [7] In crafting a sentence unique to Mossman, I have considered his culpability, prior record, acceptance of responsibility andremorse, the damage or harm done, and deterrence.

I have paid particular attention to the submissions of counsel, including the rationalebehind the respective parties' sentencing positions and the interplay between the principles and purposes of sentencing set out in ss. 718,718.1, and 718.2 of the Criminal Code. I have also recognized that Mossman’s convictions result from secondary liability provisions inhis capacity as the president of BIG and mine manager of the Yellow Giant Mine site.

As required, I have considered Mossman’s abilityto pay fines given his current unemployed status, personal financial situation, and the fact that over eight years have passed since theoffences occurred. Finally, I have read and considered the community impact statements prepared by the elected chief and council of theGitxaala Nation, the Hereditary Table of Gitxaala Nation, and house leader, Matthew Hill. Culpability

[ 8 ] I accept Mossman feels horrible about breaking the law and accepts full responsibility for the offences. Nonetheless, based on the evidence led at trial, Mossman knew the actual rules for operating the mine and, as mine manager, he failed to have safeguards in place to avoid breaking the law. In other words, there was a failure to exercise due diligence. He was running the day-to-day operations of the mine. He was the designated mine manager and had the authority to implement safety procedures to prevent breaches.

As the mine manager, he was obligated to ensure all “works necessary to operate [the] mine [met] acceptable standards of practice" as set out in s. 6.1.1(1) of the Health, Safety and Reclamation Code for Mines in British Columbia (the Code ). He failed to do so.

The Court was not told of the system in place in 2014 and the Yellow Giant Mine continued operations without regard to what they were discharging. [ 9 ] On the other hand, except for the offences for which Mossman has been convicted and the June and July 2015 events on Banks Island, the Yellow Giant Mine site operation appears to have been well run and without a record of failed inspections. It may be that the financial strain of trying to get an old mining site productive led to the offences in the first place. We do not know as Mossman has no specific recollection as to why the lab was not being paid.

The permits were clear and the testing had to be completed. [ 10 ] Accordingly, while I reject the Crown’s submission that Mossman’s culpability is high, and despite the able submission of counsel on behalf of Mossman, I find that Mossman’s culpability is not at the low end of the scale, but instead in the middle. By failing to ensure that the Yellow Giant Mine had protocols in place to avoid the very failings for which he was convicted, Mossman is the author of his own misfortune. Past Involvement with the Authorities [ 11 ] Mossman does not have any previous involvement with the authorities.

Acceptance of Responsibility [ 12 ] Despite the Crown’s submission that Mossman has not accepted responsibility, I find that Mossman has personally taken full responsibility for the offences. I further acknowledge that in the summer and fall of 2015, despite eventually finding itself in bankruptcy, BIG and Mossman, as president of BIG, changed how BIG did business. Mossman implemented changes at the Yellow Giant Mine site to ensure full compliance with the law, albeit too late to help BIG avoid bankruptcy.

Finally, I am mindful that Mossman made numerous admissions at trial and did not attempt to raise a due diligence defence. Harm [ 13 ] Counsel for Mossman has argued that the offences are minor and no actual harm resulted. Concerning the damage and harm done in this particular case, the offences Mossman committed enabled BIG to avoid its permitted responsibilities and the early detection of violations of its permits. Indeed, the evidence does not allow for a determination of the potential for harm and there is evidence that there was no harm. The nature of zinc and TSS is not foreign.

They are naturally occurring and are considered harmful only in excessive concentrations. The extent of that harm, particularly in the relatively low volume and the infrequent duration, suggests that the amount of damage is null. [ 14 ] During the trial, Officer Bailey testified that before the site inspection at Banks Island in 2015, he conducted a thorough file review of the Yellow Giant Mine records, including BIG’s annual report for 2014, which identified the exceedances.

He testified that he analyzed the exceedances and concluded they did not justify any significant ministerial response. [ 15 ] The exceedances were discharged in an isolated and remote area and characterized by high tide to increase dilution. Mossman has admitted that the area is an Indigenous fishery. However, there is no evidence respecting the site's sensitivity, including its proximity to population and fragile environments. [ 16 ] Even so, the Court has to consider the impact if all mining operations acted as BIG did in 2014. Ignoring the basic conditions of a mining permit cannot be allowed.

Not only does violating mining permits potentially jeopardize the environment, but in the present case, the offences jeopardized the rich resources and economy of the Gitxaala Nation as well as the spiritual beliefs of its people. [ 17 ] The comments of Judge Mrozinski in paragraphs 46 in R. v. McKinnell Fishing Ltd. , 2016 BCPC 466 , a case that dealt with British Columbia’s crab fishery, are equally applicable to the present case: Seen in this light, while the defendant's transgressions may, to it, have seemed innocuous, they clearly are not.

The failure to comply with its licence and regulations has the potential to contribute to a failure of this fishery, particularly if all fishers were of the same view. It is for this reason, clearly, that virtually all of the case law before me in this sentencing emphasizes the importance of the sentencing objectives of specific and general deterrence in regard to these regulatory offences. [ 18 ] The failure of the Yellow Giant Mine to comply with its permit had the potential to contribute to an environmental disaster.

The fact that the Crown has not proven an environmental impact by BIG failing to abide by its permitted conditions in 2014 does not change the reality. Perhaps a better way of looking at it is that BIG and Mossman, as president and mine manager, are lucky that an environmental disaster did not occur due to their failure to abide by the terms of the permit. [ 19 ] In R. v.

Henneberry , 2009 NSSC 95 , a Nova Scotia fishing case on appeal by the Crown from the Provincial Court to the Nova Scotia Supreme Court, Justice Edwards noted that counsel for Henneberry had argued in the Provincial Court that the offence was properly characterized as a technical breach of the law because the halibut had been legally caught. It was only the sloppy recording by Mr. Henneberry, in failing to record an up-to-date record of his fishing activities correctly and all catch in his logbook, that was unlawful.

In dismissing the argument, Justice Edwards stated the following: [39] In his submission to the sentencing judge, Respondent’s Counsel had argued: “So I submit there’s nothing illegal about the catch… if they had fished them illegally, is they had caught them illegally, I submit there would be a much stronger case for a much stronger penalty. These were not caught illegally. These were not properly accounted for.”

[40] That is an argument that invites a strong rebuttal. As I noted earlier, the catch is not legal unless it is properly recorded. The recording requirement is a fundamental condition of the licence to catch halibut. Any halibut caught but not “properly accounted for” are illegally caught. It is an illegal catch. Fishers have to understand that the Court will not treat the failure to make a log entry as a mere lapse in accounting. [41] The foregoing deserves extended emphasis. A fisher who does not comply with the conditions of his/her licence is effectively unlicenced. He/she is not fishing legally.

There is no wiggle room in the conditions; you are either in compliance or you are not. If you are not, as a minimum, the unrecorded portion of your catch is illegal and subject to forfeiture. [ 20 ] In the present case, a mining company that does not comply with the conditions of its permit is effectively unpermitted. The discharges were illegal. The testing results were not accounted for promptly and remedial action was not undertaken. Accordingly, the offences should not be treated as mere technical violations.

Deterrence [ 21 ] Given Mossman’s present circumstances, the negative press his long arduous court battles over the past seven years have received, and the stigma attached to his convictions, I accept what his counsel has urged upon the Court, that this entire experience has specifically deterred Mossman. [ 22 ] On the other hand, general deterrence demands a significant financial penalty for Mossman to dissuade other mine managers, mining officials, and public members from committing the same or similar acts. [ 23 ] The basic rule in environmental cases is that, without being harsh, the fine must be substantial enough to warn others that the offence will not be tolerated.

It must not appear to be a mere licence fee for illegal activity. Aggravating Factors [ 24 ] There are several aggravating factors present: a. The offences occurred on Banks Island in the pristine territory of the Git Tga guk (Wreck Islands) and Git Kwduunsda (Survey Bay) houses of the Gitxaala people. Banks Island holds high spiritual, cultural, and traditional importance for the Gitxaala Nation. b. The offences occurred during a mining exploration that, while permitted, was opposed by the Gitxaala Nation. c. The offences represent a fundamental breach of the permit allowing BIG to operate on Banks Island. d.

The offences resulted from a lack of systemic safeguards that appear to have resulted in BIG management prioritizing the way the working cashflow of the company was spent over the needs of testing to ensure environmental protection and compliance with the permit. e. Mossman ran the day-to-day operations at the Yellow Giant Mine site and had the authority and ability to implement safety procedures to prevent breaches. f. As the mine manager, he was obliged to ensure all “works necessary to operate [the] mine [met] acceptable standards of practice" as set out in

section 6.1.1(1) of the Code . He failed to do so. Mitigating Factors [ 25 ] Counsel for Mossman has highlighted several mitigating factors, including: a. Mossman's culpability is reduced through his secondary liability as a director for acquiescing to BIG's offences rather than directly as a primary actor who commissioned the violations. b. There is no reliable evidence Mossman knew or consented to the exceedances. c. The exceedances were the passive result of a systemic failure rather than a purposeful violation in the blind pursuit of profit. d.

The criminality or gravity of the offences is low because the substances released are not inherently deleterious, or harmful, but are considered deleterious only in specific concentrations. e. BIG was allowed under its permits to release zinc and TSS at the dilution zone at Barge Channel. f. Mossman has no prior record or disciplinary history. g. Mossman has a long compliance history with regulators, enjoying cooperative and collaborative relationships with government officials. h.

Mossman has accepted responsibility as CEO and president of BIG, including through his engagement with the communities affected and by directing changes at BIG to prevent recurrence before its closure. i. Mossman has expressed remorse for the circumstances leading to BIG's environmental obligations violations. j. There is no evidence that the exceedances caused any harm. BIG's annual report for 2014 says there is no pattern or statistical difference in TSS or effect on the environment.

k. According to the Ministry of Environment's evidence, the exceedances were "low to moderate" with minimal potential for adverse effects such that only the lowest level of administrative response would have been required. l. The extreme public scrutiny this case attracts will have long-lasting and significant deterring effects for Mossman and others in the industry. Mossman's Current Personal Situation [ 26 ] Mossman is 46 years of age, married with two children, and the sole financial support for his family. He currently resides in California.

Mossman’s counsel has told me, and the Crown has not led evidence to the contrary, that Mossman is presently unemployed, having been recently let go by the mining company he was working for in California. Accordingly, his only current source of income is the 10,000 United States dollars he earns annually by being on the board of directors of the mining company that recently terminated his employment as their chief executive officer. He does not own his home and has assets of approximately 100,000 United States dollars. In the previous six years, he earned an income of 134,000 United States dollars.

Still, he invested much of his remuneration into the mining company for which he is currently on the board of directors. Conclusion [ 27 ] In fashioning a sentence specific to Mossman, I have kept in the forefront of my mind the Supreme Court of Canada’s teachings in R. v. Lacasse , 2015 SCC 64 , and I have considered the caselaw provided by counsel. I have also considered how Mossman did not set out to break the law.

Still, nevertheless, his failure to implement adequate safeguards failed whatever system Yellow Giant Mines had in place at the time, directly resulting in the violation of the permit. [ 28 ] On the other hand, if he did have a system in place, Mossman failed to supervise his employees and ensure the protocols were followed correctly. He did not contact government officials to confirm that the Yellow Giant Mine’s procedures for water testing were adequate.

He did not ensure that the chief financial officer or other employees of BIG did what needed to be done to ensure compliance with the permit. [ 29 ] In Lacasse , the Supreme Court of Canada instructed that the overarching principle is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, the latter of which means the offender's moral blameworthiness.

The principle of parity, which requires a consideration of sentences imposed on similar offenders in similar circumstances, informs the proportionality analysis, ensuring that the punishment is both individually proportionate and proportionate with sentences given to other offenders in similar situations. [ 30 ] That said, we are cautioned in paragraph 40 -- sorry, 54 in Lacasse : The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account.

Once again, however, it is up to the trial judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed. The principle of parity of sentences … is secondary to the fundamental principle of proportionality.

This Court explained this as follows in [ C.A.M. ]: It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. … Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. [ 31 ] Each of the 13 counts of which Mossman has been convicted must receive an individual sentence.

The final total fines must meet the sentencing principles on environmental files and the fines cannot be viewed as a licencing fee or the cost of doing business. [ 32 ] I agree with the prosecutor that Mossman indirectly profited from the offences. How? The offences allowed BIG to continue mine operations at the Yellow Giant Mine site in 2014 when it might otherwise have had to cease operations until the exceedances were corrected.

This, in turn, allowed Mossman to continue receiving his remuneration at the time, an annual income of approximately $300,000. [ 33 ] While I am not sure if the global sentence of $6,500 sought by Mossman’s counsel would, as the prosecutor submitted, be patently absurd or grossly inappropriate for Mossman’s conduct, thereby opening the justice system to public ridicule and contempt if the court acceded to it, I do agree that it is insufficient.

Given the size of BIG and the operation on Banks Island in 2014, where approximately 100 people were employed by BIG, a global $6,500 fine fails to address the sentencing objectives of environmental caselaw. [ 34 ] As stated above, the combination of the fines I am imposing plus the entire experience will serve as a specific deterrence to Mossman. I have confidence that the penalties I am imposing will meet the goal of general deterrence and encourage compliance by others. [ 35 ] Counsel tells me that Mossman can pay a fine of $30,000 despite his financial situation.

I am mindful that $30,000 in penalties for a person who makes $300,000 a year in income is not the same as $30,000 in fines for a person earning British Columbia's minimum wage of $16.75 per hour, nor for a person such as Mossman, who is currently living off of a 10,000 United States dollar annual income, has a family of four to support, and declared assets of approximately 100,000 United States dollars. Nonetheless, as submitted by the prosecutor, Mossman is a highly educated and experienced mining executive with good future employment prospects.

Furthermore, as set out by Justice Punnett in paragraph 13 of Schafhauser , where there is an issue with the ability to pay: … this should be remedied by additional time to pay and not by diluting the deterrent nature of the sentence by lowering the sentence amount …

[ 36 ] Considering the submissions of counsel and all the factors required by the caselaw and the realities of Mossman’s life, I am imposing a fine on each count representing a significant portion of Mossman’s current remuneration and net worth. I do so with the knowledge that, while specific deterrence has been met, general deterrence requires others in similar roles to know the hefty consequences of failing to abide by the rules. [ 37 ] There will be a fine of $2,090 on each of the 13 counts. That is a total of $27,170 in fines.

The time to pay all 13 fines will be September 26, 2028. [ 38 ] Furthermore, as required by the Victim Surcharge Levy Regulation , there will be victim surcharge levies of $314 on Counts 2 through 10 for a total of $2,826. The victim surcharge levies must be paid by September 26, 2028. [ 39 ] Thank you. That is my decision. (REASONS FOR SENTENCE CONCLUDED)