The URL can be used to link to this page

Home My WebLink AboutBYL 04-1764 DICKERING Report to Executive Committee Report Number: BYL-04-17 Date: November 6, 2017 From: Paul Bigioni Director, Corporate Services & City Solicitor Subject: Power of Entry By-law - File: L-2220-001-17 Recommendation: 1. That the City of Pickering enact the Power of Entry By-law attached to this report. (Attachment No. 1); and 2. That the appropriate City of Pickering officials be authorized to take the necessary actions as indicated in this report. Executive Summary: The attached By-law will address amendments to the wording of the Municipal Act, 2001. The By-law will clarify the right of City enforcement staff to enter private property for by-law enforcement purposes. This right of entry was previously provided in a blanket provision of the Municipal Act, 2001. Financial Implications: There are no financial implications to this report. Discussion: The previous version of the Municipal Act, 2001 (the "Act"), contained specific right of entry provisions for the enforcement of by-laws passed by a municipality under the Act. The current version of the Act does not contain such a provision. It merely grants the municipality the ability to enact by-laws that provide the same right of entry powers. Section 436 (1) of the Municipal Act states "A municipality has the power to pass by-laws providing that the municipality may enter on land at any reasonable time for the purpose of carrying out an inspection to determine whether or not the following are being complied with: 1. A by-law of the municipality passed under this Act. 2. A direction or order of the municipality made under this Act or made under a by-law of the municipality passed under this Act. 3. A condition of a licence issued under a by-law of the municipality passed under this Act. 4. An order made under section 431. BYL-04-17 November 6, 2017 Subject Power of Entry By-law Page 2 The attached Power of Entry By-law will apply to all City By-laws passed under the authority of the Act. These include all licensing by-laws, the Tree Protection By-law, the Clean and Clear By-law, the Fence By-law, Fill and Topsoil By-law, Discharge of Firearms By-law, Responsible Pet Ownership By-law, and the Traffic and Parking By-law. The Power of Entry By-law requires City by-law enforcement officers to present identification if requested. The by-law creates an offence for obstructing an officer, and permits the entry onto land for the completion of work required under an order, such as cutting grass and weeds under the Clean and Clear Bylaw. The Power of Entry By-law does not authorize by-law enforcement officers to enter a dwelling unit without consent or a search warrant. The power of entry provided in the attached by-law will not be frequently required, however, it will be important in some by-law enforcement cases. Attachments: Draft Power of Entry By-law Prepared By: Kimberly Thompson ApprovedlEndorsed By: Paul Bigi Manager, Municipal Law Enforcement Services Director, KT:ktlks Recommended for the consideration of PickeriCity Council tit c- Tony Preveng. Chief Adminis ive Officer CORP0227-07101 revised to Services & City Solicitor The Corporation of the City of Pickering A T M1 Tc Rei By-law No. 117 ' °Z 01 V7 Being a by-law to regulate the power of entry onto land Whereas Section 436 of the Municipal Act, 2001, as amended, provides that a municipality has the power to pass by-laws providing that the municipality may enter on land at any reasonable time for the purpose of carrying out an inspection; And Whereas Sections 435, 437 and 438 of the Municipal Act 2001, S.O. 2001, as amended, set out additional powers and restrictions in regard to the power of entry; And Whereas the City of Pickering deems it appropriate to pass a By-law allowing for the entry on land for the purpose of carrying out an inspection to ensure that its By-laws, directions, orders and conditions of licences are being complied with; And Whereas this by-law applies to any City of Pickering by-laws without power of entry provisions passed pursuant to the Municipal Act, 2001, SO. 2001, as amended or its predecessors; Now therefore the Council of The Corporation of the City of Pickering hereby enacts as follows: 1. Definitions 1.1 In this By-law: (a) "Act" means the Municipal Act, 2001, S.O. 2001, as amended, (b) "City" means The Corporation of the City of Pickering or the geographic area of the City of Pickering, as the context requires; (c) "land" means real property, and includes the buildings and structures on the land; (d) "occupier" means any person occupying or having control over any portion of the land to be inspected including, but not limited to a person or persons occupying, leasing or licensing any building on the land; (e) "Officer" means a Municipal Law Enforcement Officer appointed to enforce the By-laws of the City, a Police Officer, or any City employee whose duties include enforcing the City's by-laws; Power of Entry By-law xx117 2. Application ATTACHMENT# / .of:< Page 2 TO REPORT# 'L 2.1. This By-law applies to all City By-laws hereafter and previously passed under the authority of the Act. 3. Powers of Inspection and Entry 3.1 An Officer may enter on land, at any reasonable time, for the purpose of carrying out an inspection to determine whether or not the following are being complied with: (a) any City By-law, passed under the authority of the Act; (b) a direction or Order made under the Act, or made under a By-law of the City passed under the Act; (c) a condition of a licence issued under a By-law of the City, enacted under the authority of the Act; or (d) an order under Section 431 of the Act. 3.2 An Officer may enter on land, for the purpose of carrying out an inspection under Section 438 of the Act to determine whether or not any of the matters set out in section 3.1 of this By-law are being complied with. 3.3 The Officer must, upon request, display or produce proper identification. 3.4 The Officer may be accompanied by a person under his or her direction. 3.5 For the purposes of the inspection, the Officer may: (a) require the production of documents or things relevant to the inspection; (b) inspect and remove documents or things relevant to the inspection, for the purpose of making copies or extracts; (c) require information from any person concerning a matter related to the inspection; (d) alone or in conjunction with a person possessing special or expert knowledge, make examinations or take tests, samples or photographs, necessary for the purposes of the inspection. ATTACHMENT#_____TO REPORT# Power of Entry By-law xx/17 , .of. Page 3 3.6 A sample taken under 3.5(d) shall be divided into two parts, and one part shall be delivered to the person from whom the sample was taken, if the person so requests at the time the sample is taken and provides the necessary facilities. 3.7 If a sample taken under 3.5 (d) is not divided into two parts, a copy of any report on the sample shall be given to the person from whom the sample was taken. 3.8 A receipt shall be provided for any document or thing removed under section 3.5 (b) and the document or thing shall be promptly returned after the copies or extracts have been made. 4. Remedial Action 4.1 Where a person is in default of doing something that the person is directed or required to do under the Act, under a By-law of the City, or pursuant to a condition imposed by the City on the issuance of a licence pursuant to a By-law, an Officer may enter land, accompanied by any person required to complete the work, at any reasonable time, for the purpose of doing the action required. 5. Obstruction 5.1 No person shall obstruct or hinder or attempt to obstruct or hinder any Officer or other person, who is exercising a power or performing a duty under this By-law, any other City of Pickering Bylaw, or the Act. 5.2 Without limiting section 5.1 every person who is alleged to have contravened any of the provisions of any City By-law shall identify themselves to an officer upon request and failure to do so shall be deemed to have obstructed the Officer in the execution of his or her duties contrary to section 5.1 of this by-law. 6. Restrictions Regarding Entering Dwelling Units 6.1 Despite any provision of this by-law, a person exercising a power of entry shall not enter or remain in any room or place actually being used as a dwelling unless: (a) the consent of the occupier is obtained, the occupier first having been informed that the right of entry may be refused, and if refused, may only be made under the authority of an order issued under section 438 of the Act, or a warrant issued under section 439 of the Act. ATTACHMENT# _TO REPORT# Power of Entry By-law xx117 d f Page 4 (b) an order issued under section 438 of the Act is obtained; (c) a warrant issued under section 439 of the Act is obtained; or (d) the delay necessary to obtain an order under section 438 of the Act, to obtain a warrant under section 439 of the Act or to obtain consent of the occupier would result in an immediate danger to the health and safety of any person. 7. Penalty 7.1 Any person who obstructs or hinders or attempts to obstruct or hinder any Officer is guilty of an offence and upon conviction is liable to a maximum fine of $25,000.00. 8. Administration 8.1 Should any section of this By-law be declared invalid by a court of competent jurisdiction, such section shall be construed as being severed herefrom and the remainder of the By-law shall continue in full force and effect. 8.2 This By-law shall be read with all changes in gender or number as the context requires. 8.3 A grammatical variation of a word or expression defined herein has a corresponding meaning. 8.4 Nothing in this By-law shall limit any other statutory or common law rights or powers of the City or any Officer to enter on land. 8.5 This By-law shall come into force and effect upon the date of its passage. By-law passed this day of , 2017. David Ryan, Mayor Debbie Shields, City Clerk