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or indirect contact with or con-
tamination of animals, plants,
food or drink.
The MBCA is specifically
directed to the protection of
migratory birds in accordance
with Canada’s commitments
under the Migratory Birds Con-
vention, and the section at issue in
the case prohibits the deposit in
waters or areas frequented by
migratory birds of substances
harmful to them. The question of
whether conviction under both
would offend the multiple convic-
tions rule was left for later argu-
ment. This in itself was disappoint-
ing, as this issue rears its head
repeatedly, but for one reason or
another tends to never receive the
thorough treatment it deserves.
Ontario Bar Association Conference Center
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permitted provincially — an
Syncrude is particularly
instructive on due diligence
defences, not so much as to the
law of due diligence, but as to the
kind of factual matrix which constitutes due diligence in such
cases. Syncrude was obliged to
have, and did have, a bird deterrence program. Justice Tjosvold
found that in its 2008 implementation of its bird deterrence program, Syncrude failed to deploy
early and quickly enough, and
that reduced personnel levels also
impacted on the program. Justice
Tjosvold compared evidence of
other companies’ activities in this
regard, and decided that Syncrude
had fallen short in its implementation when compared to the
While circumstances and context vary from one case to the next,
the judgment’s description of Syncrude’s practices, other companies’
deterrent systems and Justice
Tjosvold’s criticisms of Syncrude’s
system, constitute a useful road
map for the construction of a due
diligence system. Justice Tjosvold’s findings on Syncrude’s
administration of its bird deterrence program are of particular
interest. Justice Tjosvold faulted
Syncrude’s written procedures
and practices, as well as aspects of
its training and expertise. The
judgment suggests that “
logbook”-type records are extremely useful,
if not indeed vital, elements in
establishing a due diligence
defence in such cases.
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seems to have
operated to prohibit
what was permitted
provincially — an
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On a broader basis, Syncrude
illustrates the need for rationalization of rules relating to protection of the environment. While it
may be unrealistic to expect it
across the board, there is clear
need for simplification and harmonization of environmental laws
and regulations within and across
jurisdictions. No one would argue
in 2010 that protection of the
environment is not a valid concern, but it can and should be
done in such a way that industry
and business have the clearest
possible set of rules by which to
make decisions and operate.
Nick Spillane is an environ-
mental lawyer with the firm
Brisset Bishop s.e.n.c. in Montreal.
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