More On Killing Birds With Buildings As An Environmental Offense

More On Killing Birds With Buildings As An Environmental Offense

Ecojustice has settled its bird-killing prosecution against the Menkes Developments (Consilium Place) office complex.

As described in a previous post, Ecojustice (as counsel for Ontario Nature) charged Menkes with environmental offences. They proved that these buildings were unusually dangerous to birds, killing or injuring 900 birds during 2008 and 2009 as a result of collisions with their reflective glass. At trial, the Justice of the Peace (JP) dismissed the charges.

Ecojustice appealed. In fact, we understand from Ecojustice Staff Lawyer Albert Koehl, both parties agreed that the JP had failed to provide intelligible reasons for his decision. His reasons did not address key conflicts in the evidence or demonstrate an appreciation of key issues, contrary to the test set out by the Supreme Court of Canada in R. v. Sheppard.

On November 12, 2013, the appeal court allowed the appeal, on consent.

At that point the charges would normally have been sent back for a re-trial. However, the prosecution (Ecojustice as counsel for the Informant Ontario Nature) asked for the charges to be withdrawn because:

a. Menkes has now fully retrofit the Consilium Place complex, at substantial cost, in order to reduce bird strikes;

b. Subsequent to the JP’s decision in the Menkes case, Judge Melvyn Green in Podolsky v. Cadillac Fairview Corp. gave a comprehensive decision that definitively resolved the same statutory interpretation issues raised in the Menkes case. Judge Green found that the defendants breached the Environmental Protection Act and the federal Species at Risk Act by reflecting light from their mirrored buildings, resulting in the deaths or injuries of hundreds of migratory birds, including a number of birds listed as threatened species.

As a result, the Cadillac Fairview decision has created a binding precedent in terms of interpreting s. 14 of the EPA and s. 32 of SARA. Killing birds with buildings, due to window collisions, is a serious environmental offence, and a further trial against Menkes was not necessary.

Congratulations to everyone involved for a sensible resolution.

    By Dianne Saxe, Ontario Environmental Lawyer

Reprinted with permission from the Environmental Law and Litigation Blog.

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