Casual Legal: Bylaw considerations for fortified buildings
By Justine Fay
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider
Fortified buildings and municipal authority
A fortified building is one excessively guarded with barriers or materials capable of obstructing emergency access. There may be bars on the windows, bulletproof glass, concrete barricades, electrified fences, or surveillance cameras.
The Municipal Government Act (MGA) gives municipalities broad authority to enact bylaws to address local issues and improve the safety, health, and welfare of people in the community. But to be enforceable, fortification bylaws must avoid conflicting with areas of provincial or federal jurisdiction.
Federal jurisdiction
The federal government has exclusive power over criminal law in Canada. This presents a potential challenge for municipalities, as fortified buildings are often used for illegal purposes such as drug trafficking or organized crime. If a fortification bylaw inadvertently creates a criminal offence based on the illegal activities that may be occurring inside the fortified building, then the bylaw would be unenforceable if successfully challenged. This means that a fortification bylaw must be drafted carefully to focus on municipal purposes, such as safety, health, and welfare of the community, rather than the regulation of crime.
Provincial jurisdiction
Section 13 of the MGA provides that if there is a conflict or inconsistency between a municipal bylaw and a provincial enactment, the bylaw is of no effect to the extent of the conflict or inconsistency. Alberta’s Safer Communities and Neighbourhoods Act (SCNA) allows officials to designate a fortified building as a threat to public safety and issue a removal or closure order. Therefore, when drafting a fortification bylaw, a municipality must take care to ensure that its residents can comply with both the fortification bylaw and the SCNA. If there is a conflict between the two, the provincial rules take precedence.
Other areas of concern
Fortification bylaws also present unique challenges in relation to individuals’ Charter rights to life, liberty, and security of the person and freedom of expression. When surveillance cameras are involved in the fortification, privacy issues may be engaged.
These concerns are beyond the scope of this article, but they will be discussed in detail by our lawyers at the Municipal Law Seminar on February 9, 2024. We invite anyone interested in this topic to attend the seminar. Registration and further information on upcoming seminars can be found on our website.
To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] abmunis.ca (email) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.
DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.
