R. v. Mossman, 2023 BCPC 229

Citation: R. v. Mossman 2023 BCPC 229 Date: 20230927 File No: 29244-4-C Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. BENJAMIN MOSSMAN and DIRK MECKERT RULING ON KINEAPPLE APPLICATION 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 11-12, 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 of Prince Rupert Information 29244-4-C. My reasons for judgment after trial are reported at R. v. Mossman and Meckert , 2023 BCPC 157 , so I will not repeat the facts in detail.

[2] Mossman now asks the court to apply what is commonly known as the Kienapple principle against multiple convictions, asdefined in the Supreme Court of Canada’s decisions in R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729, and R. v. Prince, (SCC), [1986] 2 S.C.R. 480, and enter a judicial stay of proceedings on Counts 6, 7, 8, 9, 10, 18, 19, 20, and 21.

In thealternative, Mossman asks the court to enter a judicial stay of proceedings of the Metal Mine Effluent Regulations (MMER) relatedcounts, which are Counts 18, 19, 20, and 21, and enter convictions only on Counts 2–10. [3] In making his application, Mossman submits that: 1. Counts 18–21 duplicate the violations described in Counts 6, 8, 9, and 10 of the information, being the accepting or agreeing toBanks Island Gold (BIG) discharging excessive levels of total suspended solids (TSS) defined by a permit issued to BIG and regulationsunder the Fisheries Act. 2.

Counts 2–5 duplicate the violations described in Counts 6, 8, 9, and 10 of the information, being the accepting or agreeing to BIGdischarging excessive levels of zinc and TSS in circumstances where the excessive concentration levels of harmful substances werefound in the same grab samples taken from the permitted discharge point. 3. It is unfair to Mossman that he should be convicted and sentenced to multiple offences that essentially duplicate each other; that is,the court should not sentence Mossman for multiple crimes arising from the same test tubes gathered at a permitted discharge site. 4. iv.

Our law protects against the unfairness of being convicted and sentenced to multiple offences that duplicate each other byutilizing the rule against multiple convictions, referred to as the Kienapple principle. 5. In this case, the Supreme Court of Canada’s modern formulation of the Kienapple principle - requiring both a factual and legal nexus- is satisfied.

Therefore, the court should give life to the Kienapple principle and stay the counts sought by Mossman to be stayed. [4] With respect, I cannot accede to Mossman’s request for a judicial stay of proceedings on any of the counts. [5] The Kienapple principle is only applicable to counts that are factually and legally the same. There cannot be additionaldistinguishing factual or legal elements between the offences.

The Supreme Court of Canada clarified this point in para. 32 of Prince: I conclude, therefore, that the requirement of sufficient proximity between offences will only be satisfied if there is no additional anddistinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienappleprinciple. [6] In the present case, the offences are under different statutes created by different legislative bodies with different purposes andlegal elements.

As submitted by counsel for Mossman, there is a factual connection between the counts due to how the water sampleswere taken. However, as submitted by the Crown, there are distinguishable legal elements between the offences. [7] Exceeding the allowed rate of zinc discharge is separate from exceeding the allowed rate of discharge of TSS. Moreover, notevery exceedance of the permitted limits for TSS will include zinc. Accordingly, the acts prohibited by the MMER and theEnvironmental Management Act (EMA) are not the same.

Furthermore, the MMER and EMA, combined with the Waste DischargeRegulation (WDR), are very different statutory instruments with different purposes enacted by separate legislatures. The essentialelements of the offences under the regimes are distinct from each other. [8] The MMER is part of Parliament’s regulatory regime to protect and manage fisheries and waters under federal jurisdiction. Itspurpose is explicitly limited to fisheries and protecting the habitat that the fisheries rely upon. [9] The MMER offences I found Mossman guilty of have the following elements: 1.

Mossman, as a principal, party, or according to the secondary liability provisions, was part of a “mine” that produced effluent, andthe effluent contained a deleterious substance; 2. The deleterious substance was harmful to fish or fish habitat; 3. The mine produced more than 50 m3 of effluent per day; 4. The effluent was deposited in waters frequented by fish or another place in conditions where the effluent may enter water frequentedby fish; and 5. The effluent discharge contained TSS in amounts that exceeded one of the three limits set out in MMER

Schedule 4 for TSS. [10] The EMA is provincial legislation designed to protect the environment generally - land, air, and water. The EMA offences Ifound Mossman guilty of have the following elements: 1. Mossman, as a principal, party, or according to the secondary liability provisions, took

part in an operation that was a prescribedindustry, trade, or practice; 2. BIG had been issued a permit that authorized it to discharge specified waste into the environment in a prescribed manner; 3. The permit authorized the discharge of zinc into the environment up to specified maximum amounts; 4. BIG discharged zinc exceeding the amounts allowed by the permit; 5. The permit authorized the discharge of TSS into the environment up to the specified maximum amounts; and

6. BIG discharged TSS exceeding the amounts allowed by the permit. [ 11 ] There is no legal or factual nexus between the various offences I found Mossman guilty of committing, nor do the facts overlap. [ 12 ] There were different legal elements between the offences I convicted Mossman of. I agree with the Crown that the presence of the distinguishing aspects of the various offences is an expression by Parliament and the British Columbia Legislature that they intended separate, distinct offences. [ 13 ] The permit BIG received set out distinct conditions for zinc and for TSS.

The distinct conditions were breached, and there is nothing objectionable about convictions for each breach. As mine manager and president of BIG, Mossman is to be held to account for the prohibited zinc and TSS the Yellow Giant Mine discharged into the environment contrary to the permit BIG had obtained. [ 14 ] Convictions will be recorded concerning Counts 2, 3, 4, 5, 6, 7, 8, 9, 10, 18, 19, 20, and 21. (RULING CONCLUDED)