B.C. court rejects appeal of mining CEO's pollution convictions

A mining executive convicted of numerous environmental violations on B.C.'s North Coast will have to face a new trial after the province's Supreme Court rejected his appeal on Friday.

Benjamin Mossman, former chief executive officer and president of the now-defunct Banks Island Gold company, was charged in 2016 with more than 20 counts of releasing harmful mining waste into the environment and failing to report the pollution.

Both he and Crown prosecutors appealed a lower court decision that had found him guilty on all but a few of the charges and ordered him to pay nearly $30,000.

On Friday, Justice Carol Ross not only rejected Mossman's appeal, but also said the previously dropped charges of failing to report the pollution to authorities would have to be heard at a new trial because of errors in an earlier ruling.

"The appeal against the conviction is dismissed," Ross wrote in Friday's decision. "The appropriate remedy is to remit this matter for a new trial."

Mossman's rejected appeal is the latest development in a protracted legal saga over Banks Island Gold's release of zinc and other harmful substances into the environment in fall 2014 through to the summer of 2015. The firm declared bankruptcy early the following year.

Banks Island, known as Lax k'naga dzol to members of Gitxaała Nation, is in the Hecate Strait roughly 100 kilometres south of Prince Rupert, B.C. It is the site of the former Yellow Giant Mine, which faced opposition from the First Nation prior to opening.

A lower court found Mossman guilty of exceeding the amounts of "deleterious substances" his mines were permitted to release into the environment.

But it acquitted him of several allegations his mine discharged waste into the environment and failed to report it — ultimately only convicting him of exceeding the concentrations of discharged waste under the company's permits.

'Everyone knew the mine was discharging zinc'

The appeal judge examined whether Mossman's convictions were valid partly based on whether he was conscious of wrongdoing, known in legal jargon as "mens rea."

In Mossman's appeal, his lawyers had argued that "the trial judge erred because there was no finding that Mr. Mossman knew about the circumstances of the exceedance and did not react," Justice Ross said, summarizing their arguments. 

But as Ross described in her judgment, provincial prosecutors countered "the Crown is not under a burden to prove mens rea or to establish that the accused had knowledge of the circumstances of the breach.

"Everyone knew the mine was discharging zinc ... into the environment ... Mossman's admission that the system his mine operated was insufficient to meet its regulatory obligations is not a defence. To the contrary, it shows he failed to take all reasonable steps to prevent the offence."

On these points, Justice Ross sided with prosecutors, and though she said she couldn't determine the actual facts of what happened, she concluded there were enough errors in the previous trial judge's rulings to warrant a new trial on the dropped charges.

"The trial judge based the acquittal on a lack of evidence of knowledge and direct involvement" by Mossman about releasing the pollutants, Ross wrote. 

And on the charges related to the company's alleged failure to report the incidents when required, she wrote, "The trial judge's focus on whether Mr. Mossman knew and was the cause of the delayed reporting was flawed."

No trial date has yet been set to re-examine the charges against Mossman.