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Fortification Bylaws: What are the risks?
Picture this: it’s a beautiful fall day. The leaves are golden, the sky is blue, and the air is fresh. Front porches are lined with pumpkins and families are gathering for Thanksgiving. Everything is perfect. That is, until you turn the corner and lay eyes on that house. You know the one. It has bars on the windows, barbed wire on the fence, and surveillance cameras scanning the street. Maybe there is an inordinate number of locks on the doors, boarded up entries, and a barricaded property line.
What options does your municipality have to deal with these properties? And what risks arise?
This article reviews the provisions of the Municipal Government Act, RSA c-M 26 (the “MGA”), that give municipalities the authority to implement Fortification Bylaws. In addition, we discuss some potential challenges to these bylaws and provide a few drafting tips to avoid these issues.
What is a “fortified building”?
A fortified building means a property that has been excessively guarded with barriers, devices, or other materials capable of obstructing emergency access to the property. Some examples are buildings with steel sheets or bars on the windows, bullet-proof glass, concrete barricades, electrified fences, or armoured plates to reinforce against contact. Surveillance is also a common component of fortification, which raises some unique challenges.
The concern is not the property is unsightly; that is a separate issue which, depending on the property, may be addressed through enforcement of your Community Standards Bylaw. Rather, the concern is the fortifications create dangerous or unsafe conditions by preventing emergency personnel or law enforcement services from accessing the property. Multiple municipalities in Ontario have passed Fortification Bylaws, including the Municipality of Clarington and the City of Mississauga.
Authority to pass Fortification Bylaws
The MGA grants municipalities broad powers to pass bylaws addressing local issues. All bylaws must be passed for a legitimate municipal purpose. With respect to Fortification Bylaws, those municipal purposes would include providing services that are necessary or desirable for all or a part of a municipality, providing good government and developing and maintaining safe and viable communities.
The power to pass Fortification Bylaws is grounded in s. 7 of the MGA:
- Safety, health, and welfare of people, and the protection of people and property;
- People, activities and things in, on or near a public place;
- Nuisances, including unsightly property; and
- Services provided by or on behalf of the municipality (such as emergency services).
Enforceability of Fortification Bylaws
Even though a municipality may possess the authority to pass a Fortification Bylaw, such a bylaw must be drafted carefully to avoid three particular challenges: jurisdictional issues, Charter violations, and privacy concerns.
One jurisdictional concern relates to the federal government’s power over criminal law. Some articles suggest fortification rules attempt to prevent and penalize organized crime or drug trafficking. If the purpose of a fortification bylaw is to create criminal offences, then it infringes upon the federal government’s criminal law powers and breaches the Constitutional division of powers.
Drafting Tip #1: When drafting a Fortification Bylaw, a municipality should focus on addressing the safety, health, and welfare of residents in the community rather than creating new criminal offences based on what may be going on inside fortified properties.
A second jurisdictional concern pertains to the Safer Communities and Neighbourhoods Act, SA 2007, c S-0.5 (the “SCNA”). The SCNA is a provincial statute allowing officials to designate a fortified building as a threat to public safety. The Director may then issue a removal order requiring the owner of the property to remove the fortifications. If this fails, the Director may issue a closure order and enter the property to remove the fortifications. Pursuant to s. 13 of the MGA, if there is a conflict or inconsistency between a bylaw and a provincial enactment, the bylaw is of no effect to the extent of the conflict or inconsistency.
Drafting Tip #2: Municipalities should ensure the bylaw does not conflict with the SCNA and that its residents are capable of complying with both sets of rules.
Even if a Fortification Bylaw is properly within the jurisdiction of municipalities, the bylaw could also be challenged on the basis it breaches an individual’s Charter rights. For instance, a person ordered to remove fortifications may argue the municipality’s actions have violated their right to life, liberty, or security of the person or violates their freedom of expression.
Drafting Tip #3: When passing a Fortification Bylaw, the municipality should ensure the intended objective of the bylaw (for example, allowing emergency services access to the building) is sufficiently important to warrant overriding a constitutionally protected right (for example, the right to security of person).
Further, the municipality must also ensure the restrictions imposed by the Fortification Bylaw are rationally connected to that objective. For instance, prohibiting bars on windows or concrete seals on doors is likely rationally connected to the objective of allowing access to the property and its occupants in the event of an emergency. Prohibiting security measures that can quickly and easily be removed, on the other hand, likely does not have the same rational connection.
Finally, the municipality must ensure the restrictions impair the rights in question as minimally as possible, and there is proportionality between the effect of the bylaw and the objective. For example, it would likely not be proportional if the bylaw broadly banned any security additions to properties. This would likely capture reasonable security measures, such as fences or alarms, and would be unjustifiably disproportionate to the bylaw’s objective.
With respect to specific provisions restricting surveillance cameras and floodlighting, potential issues arise in balancing the desire for private surveillance with public privacy concerns. These issues have been considered in Ontario in Oshawa (City) v Lee, 2015 ONCJ 544. Here, the landowner, Mr. Lee, had installed 11 security cameras on his property to deter vandalism, trespass, and harassment. However, the surveillance extended beyond the perimeter of Mr. Lee’s property; he could monitor the public street and his neighbours’ yards.
Mr. Lee was charged under the City’s Fortification Bylaw, which prohibited excessive fortification, such as surveillance equipment that provided views beyond the perimeter of the subject land. Mr. Lee challenged the bylaw’s validity, but the Court upheld it because the bylaw “strikes a reasonable balance between public and private interests by affording its residents the right to monitor for theft or other criminal activity on their own respective properties, while serving the public interest of privacy and peaceful enjoyment by residents on [nearby properties] …”.
Drafting Tip #4: Fortification Bylaws should attempt to strike a reasonable balance when it comes to surveillance. The bylaw should permit landowners to secure their own private property, but reasonably restrict surveillance of public areas or neighbouring properties to protect the privacy of others.
Municipalities should be aware they possess the authority to pass bylaws addressing fortified buildings and surveillance in their community. However, municipalities must take care to focus narrowly on banning excessive fortification measures relating to legitimate municipal purposes in order to avoid infringing on other jurisdictions and to avoid disproportionately restricting individual freedoms. If you would like assistance in drafting an effective, enforceable Fortification Bylaw, please contact our Municipal Team for guidance.
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This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.