Ecojustice has settled its bird-killing prosecution against the
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
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.
On November 12, 2013, the appeal court allowed the appeal, on
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Informant Ontario Nature) asked for the charges to be withdrawn
Menkes has now fully retrofit the Consilium Place complex, at
substantial cost, in order to reduce bird strikes;
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
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
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