Defending executives in historic prosecution of mine spill in B.C.


The Ascendion team returns to Prince Rupert, British Columbia to defend two executives in the only trial associated with an alleged tailings pond spill.

Our clients were executives of a gold mine in northern British Columbia operating under exploration and major mines permits. Due to circumstances beyond their control, there were discharges into the environment. However, the Ministry of Mines and Ministry of Environment were not satisfied with charging the company with violations of environmental statutes (the Environmental Management Act, Water Sustainability Act, and the Fisheries Act). Instead, the Crown insisted on charging the individual persons with the exact charges.

This is a retrial. Out of 124 counts on the Information (the charging document), our client was convicted of only two in the original trial. In that first trial, we successfully excluded certain statements made by our clients because the statements were obtained in a manner contrary to the principle against self-incrimination under s. 7 of the Canadian Charter of Rights and Freedoms. The government used its power to compel our client’s cooperation under administrative statutes to provide statements against their interests, which were then used against them in a criminal prosecution. Anyone who works in a heavily regulated industry, such as mining, forestry, fisheries, professional services, securities, oil and gas, energy, or anyone who employs employees will know that the statutes under which they operate compel them to cooperate with regulators. However, what happens when a police officer stands behind a compliance officer when cooperating with the regulator? The Crown appealed certain aspects of the trial decision. And the nature of the evidence excluded meant that the Crown’s appeal resulted in a new trial being ordered.

We believe that a properly functioning state separates regulatory and criminal functions. Suppose regulated persons in any industry believe their cooperation with regulators may lead to criminal sanctions, such as jail. In that case, the jeopardy impairs the collaboration necessary to make successful regulation work. Conversely, it offends the principles of any liberal democracy to force people to incriminate themselves, even when it involves the use of regulatory powers exercised by the state.

We aim to advance a vigorous defence in this long (scheduled at eight weeks) and complex trial. We invite anyone working in regulated industries, including employers, resource companies, and companies operating in financial sectors, to monitor this case and follow our feed for the latest news.