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S.M. 2002, c. 3
Bill 6, 3rd Session, 37th Legislature
THE FORTIFIED BUILDINGS ACT
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(Assented to May 23, 2002)
WHEREAS the fortification of buildings can prevent emergency response personnel and law enforcement officials from gaining access to those buildings in an emergency;
AND WHEREAS the fortification of buildings can pose a threat to the safety of people inside those buildings by making it difficult to escape in an emergency;
AND WHEREAS fortified buildings are sometimes used by people involved in crime or other activities that disrupt the peace and safety of communities and neighbourhoods;
THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act,
"building" means a structure of any kind, or part of a structure, including an apartment, life lease rental unit, cooperative housing unit or condominium unit; (« bâtiment » )
"closure order" means an order made under section 7; (« ordre de fermeture »)
"court" means the Court of Queen's Bench; (« tribunal »)
"director" means the person appointed as Director of Public Safety under The Civil Service Act; (« directeur »)
"fortification" means a fortification described in subsection (2); (« fortification »)
"inspector" means a person appointed as an inspector under section 2; (« inspecteur »)
"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act; (« ministre »)
"person" means an individual, corporation, cooperative, partnership, limited partnership or unincorporated organization of persons; (« personne »)
"removal order" means an order made under section 6. (« ordre d'enlèvement »)
For the purposes of this Act, a building is a "fortified building" if it is protected by one or more of the following:
(a) bulletproof material or material designed to be resistant to explosives, on doors or windows;
(b) protective metal plating on the interior or exterior of the building that is not required for the structural integrity of the building;
(c) armoured or specially reinforced doors;
(d) metal bars on exterior doors or windows;
(e) any other fortification set out in the regulations.
Notwithstanding subsection (2), a building is not a "fortified building" for the purposes of this Act if it has been fortified in a manner that does not exceed reasonable security measures commonly taken for a residential dwelling.
The minister may, on such terms and conditions as the minister may specify, appoint any person or class of persons as an inspector.
The minister shall provide each inspector with an identification card, and an inspector exercising a power under this Act shall produce the card on request.
For the purpose of administering or enforcing this Act, an inspector may, at any reasonable time,
(a) subject to subsection (2), enter and inspect any building which the inspector believes on reasonable grounds is a fortified building;
(b) take such measurements and photographs of, and make such tests and recordings in or on, a building or on the property on which the building is located as he or she considers necessary to determine if a building is a fortified building; and
(c) require any person to produce for inspection and copying any record or other document that the inspector believes on reasonable grounds contains any information relevant to the administration or enforcement of this Act.
Unless conducting an inspection under subsection 6(3), an inspector may not enter a dwelling place except with the occupant's consent or under the authority of a warrant issued under section 4.
No person shall obstruct or hinder, or make a false or misleading statement to, an inspector who is carrying out duties or functions under this Act.
An inspector may remove any records or documents that he or she is entitled to inspect and copy but must give a receipt to the person from whom they were taken and promptly return them when the inspection is completed.
A justice who is satisfied by information on oath that there are reasonable grounds to believe that
(a) a building is a fortified building;
(b) entry to the building or the property on which the building is located is necessary for a purpose relating to the administration or enforcement of this Act; and
(c) entry to the building or the property on which the building is located has been refused or there are reasonable grounds to believe that entry will be refused;
may at any time issue a warrant authorizing an inspector and any other person named in the warrant to enter and inspect the building and the property on which the building is located, subject to any conditions that may be specified in the warrant.
An inspector and any other person named in the warrant may use whatever reasonable force is necessary to execute the warrant and may call on a peace officer for assistance in executing it.
The director may, in his or her discretion, designate a fortified building as a threat to public safety.
In determining whether a fortified building is a threat to public safety, the director may take into account
(a) the number and type of fortifications in or on the building or on the property on which the building is located;
(b) whether the fortifications could significantly impair the ability of emergency response personnel and law enforcement officials to gain access to the building;
(c) whether the fortifications could significantly impair the ability of people inside the building to escape in an emergency;
(d) the nature of the neighbourhood or area in which the building is located;
(e) the proximity of the building to schools, playgrounds and other places where children are likely to be present;
(f) the proximity of the building to other buildings;
(g) the purpose for which the building is being used;
(h) whether the fortifications are reasonably necessary given the purpose for which the building is being used;
(i) the persons who own, occupy or visit the building;
(j) whether any criminal activity or other disruptive behaviour has taken place in or around the building previously; and
(k) any other factor that the director considers relevant.
The director may make a designation under subsection (1) without giving prior notice to the owner or occupier of a building and without holding a hearing.
As soon as reasonably practicable after designating a building as a threat to public safety under subsection 5(1), the director shall issue an order
(a) specifying the fortifications that must be removed from the building or the property on which the building is located; and
(b) requiring the owner or occupier of the building, or both, to remove the specified fortifications by a date that must be at least 21 days after the order is made.
An order under subsection (1) must contain a provision stating that a closure order for the building will be issued if the specified fortifications are not removed by the date set out in the order.
If a removal order has been issued for a building, an inspector has the right to enter and inspect the building to determine if the specified fortifications have been removed.
If the fortifications specified in a removal order have not been removed by the date set out in that order, the director shall issue an order closing that building for a period of not more than 90 days to allow the director to remove the specified fortifications.
A closure order must include a provision requiring all persons to vacate the building and not re-enter it until the order ceases to be in effect.
The director shall terminate a closure order as soon as all fortifications specified in a removal order have been removed. When a closure order has been terminated, the director shall advise the owner of the building that the order is no longer in effect.
There is no appeal of a closure order.
When a closure order comes into effect, the director shall post a copy of it in a conspicuous place on the building that is subject to the order.
The director shall serve a removal or closure order on the owner and any occupier of the building in respect of which an order is made. The order must be served
(a) personally, or by mail in a manner that provides the director with an acknowledgment of receipt; or
(b) if a person cannot be served by one of the methods described in clause (a) after a reasonable effort has been made, by posting a copy of the order in a conspicuous place on the building.
An order served in accordance with clause (1)(b) is deemed to have been served three days after the day it is posted on the building.
An order is effective on the date it is served.
If the director issues a removal or closure order for a building located on land described in a title under The Real Property Act or in an abstract book under The Registry Act, he or she shall file notice of the order in the proper land titles office or registry office as soon as possible after issuing the order.
If a removal or closure order is no longer in effect, the director shall file a discharge of a notice referred to in subsection (1) in the appropriate land titles office or registry office.
APPEAL OF REMOVAL ORDER
The owner or occupier of a building that is the subject of a removal order may appeal the order by filing a notice of appeal with the registrar of the court and serving a copy on the director.
A notice of appeal must be filed and served within 14 days after service of the removal order.
The director is a party to any appeal and is entitled to be heard, by counsel or otherwise, upon the appeal.
The court shall hear the appeal on an urgent basis.
The hearing of the appeal shall be a hearing de novo, and the court may hear evidence and submissions respecting the removal order subject to appeal.
On hearing the appeal, the court shall take into account the considerations set out in subsection 5(2) and may confirm the removal order, quash it or vary it in any manner that it considers appropriate and may make the order subject to such terms and conditions as it considers advisable.
When a notice of appeal has been filed, the operation of a removal order is stayed and no further action may be taken with respect to the order except in accordance with an order of the court hearing the appeal.
CLOSURE OF BUILDING BY DIRECTOR
When a closure order is in effect, the director may enter the building without the consent of the owner or occupant in order to remove the fortifications specified in a removal order and secure the closure of the building.
The director may employ any tradespersons and workers that he or she considers necessary to remove the fortifications specified in a removal order and secure the closure of the building.
The director may take any measures that he or she considers necessary to safely and effectively secure the closure of the building, including
(a) attaching locks, hoarding and other security devices;
(b) erecting fences;
(c) changing or cutting off utility services; or
(d) making interior or exterior alterations to the building so that it is not a hazard while it is closed.
The director is not responsible, whether at the end of the period of closure or otherwise, for the removal or cost of removal of anything attached or erected on a building, or the reversal or cost of reversal of anything done to a building to close it or keep it closed.
When a closure order is in effect, the director shall secure the closure of a building, and all occupants of the building and any other persons at the building shall leave it immediately upon request by the director, even if they have not been previously served with the closure order.
If an occupant of a building does not comply with a request to leave, the director may obtain the assistance of a peace officer to use reasonable force to remove the occupant from the building.
The owner of a building that is the subject of a closure order shall, on demand from the director, pay to the Minister of Finance the cost of removing all fortifications and closing the building, in the amount certified by the director.
An amount payable under subsection (1) is a debt due to the Crown and may be recovered from a person in accordance with this section.
The director may issue a certificate showing
(a) the name and address of a person who is liable to pay and has not paid a debt due to the Crown under subsection (2);
(b) the amount of the debt; and
(c) the director's address for service;
and the certificate is evidence of the amount of the debt due to the Crown by the person at the time the certificate is issued.
A certificate issued under this section may be filed in the court, and when it is filed,
(a) the obligation to pay the amount certified is enforceable as if it were a judgment of the court in favour of the Crown; and
(b) the certificate is deemed for the purposes of Part XIV of The Court of Queen's Bench Act to be an order of the court
(i) pronounced on the day the certificate is filed, and
(ii) on which post-judgment interest is payable under that Part.
OFFENCES AND PENALTIES
A person is guilty of an offence under this Act who
(a) without the director's consent, removes, defaces or interferes with a copy of a closure order posted in accordance with subsection 7(5) or 8(1);
(b) without the director's consent, enters a building that is closed under a closure order;
(c) fails to comply with a removal order; or
(d) contravenes subsection 3(3).
A person who is guilty of an offence under this Act is liable, on summary conviction,
(a) in the case of an individual, to a fine of not more than $5,000. or imprisonment for a term of not more than three months, or both; and
(b) in the case of a corporation, to a fine of not more than $10,000.
If a corporation commits an offence under this Act, a director or officer of the corporation who authorized, permitted or acquiesced in the commission of the offence is also guilty of an offence and is liable on summary conviction to the penalties set out in clause (2)(a), whether or not the corporation has been prosecuted or convicted.
No person may commence or maintain an action or other proceeding against the Crown, the director, an inspector or any other person engaged in the administration of this Act for
(a) any act done in good faith, or any neglect or default, in the performance or intended performance of a responsibility or in the exercise or intended exercise of a power under this Act; or
(b) compensation for any damage or injury caused by or during, or arising from, the removal of any fortification or the closing of a building.
A peace officer shall, when requested to do so, provide any assistance required by an inspector or director while performing a duty under this Act.
This Act applies to all buildings in the province whether the building was fortified before or after the coming into force of this Act.
The Lieutenant Governor in Council may make regulations
(a) prescribing other methods of fortification for the purposes of clause 1(2)(e);
(b) respecting the form and content of removal and closure orders;
(c) respecting the form and content of notices under section 9;
(d) respecting the closing of buildings, including authorizing the director to take specific measures in addition to those set out in subsection 12(3);
(e) respecting the cost of closing a building that a person may be required to pay under section 14;
(f) defining any word or phrase used but not defined in this Act;
(g) respecting any matter necessary or advisable to carry out the purposes of this Act.
This Act may be referred to as chapter F153 of the Continuing Consolidation of the Statutes of Manitoba.
This Act comes into force on the day it receives royal assent.