It's a horror story – the beautiful glass-walled
building you may work, shop or live in are wastefully killing
millions of migratory birds. Many readers are likely familiar with
the distressing thud of a bird breaking its neck or wing on those
lovely glass panes, often at night when the lights are left on.
At least 1 million migratory birds die in Toronto alone each
year due to collisions with buildings. The birds become confused by
reflections and lights in urban areas and fly into windows at full
speed. Often killed or badly injured, they fall to the ground where
they may be eaten by gulls or raccoons or simply tossed into the
garbage by maintenance staff. It is a wholly unnecessary
These building owners did not intend to slaughter
migrating birds, but are they responsible for the harm that their
buildings cause, year after year after year? According to basic
environmental law principles, yes, they are. In R. v. Sault Ste. Marie, the Supreme Court of
Canada discussed the tension in public welfare offences:
Public welfare offences obviously lie in a field of conflicting
values. It is essential for society to maintain, through effective
enforcement, high standards of public health and safety. Potential
victims of those who carry on latently pernicious activities have a
strong claim to consideration. On the other hand, there is a
generally held revulsion against punishment of the morally
Most environmental offences involve strict liability– a
"half-way house" between absolute liability and mens rea.
The prosecutor need not prove intent, but the defendant can escape
liability if she had been duly diligent, i.e. if all reasonable
measures were taken to prevent the commission of the offence.
And due diligence is possible. Even mirrored buildings built
on flyways can significantly reduce the number of birds killed,
through retrofits and turning off lights; see Toronto's Bird Friendly Development Guidelines. Menkes,
for example, undertook substantial renovations to reduce bird
strikes after Ecojustice laid its charges.
Surprisingly, Justice of the Peace Turtle found that the
owners of Consillium Place were not responsible. Although he found
that hundreds of birds were indeed killed or injured after striking
the windows of Consillium Place, he dismissed the charges against
the property owners, Menkes Developments.
He found that the Legislature did not intend that reflected
sunlight be considered a "contaminant" under the EPA; the
EPA governs only "harmful" radiation. Further, Menkes did
not discharge, cause or permit the discharge of the light –
the windows on the building merely reflected the light from the
sun. Even if the reflected light were a contaminant, he found that
Menkes had been duly diligent in preventing the harm. There were,
apparently, no standards in place at the time the building was
constructed setting out bird-safety considerations.
The charges under the OSPCAA were also dismissed. Justice of the
Peace Turtle found that cruelty under the OSPCAA must be
deliberate. (We do not know why he found that this offence requires
mens rea.) Section 11.2 of the OSPCAA states that "no person
shall cause an animal to be in distress." Distress is defined
as "the state of being in need of proper care, water, food or
shelter or being injured, sick or in pain or suffering or being
abused or subject to undue or unnecessary hardship, privation or
Fortunately, Ecojustice plans to appeal. Meanwhile, another
court's decision regarding the charges against Cadiallac
Fairview, under the EPA, OSPCAA and SARA, is under reserve.
As always, litigation is only one route to solving a problem.
One of the simplest answers: TURN OFF YOUR LIGHTS in any room
you're not using, especially in the shiny towers, and doubly if
there is a creek or ravine nearby. It saves lives, and it saves
money. Will your lights be off when you go home tonight?
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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