BILL 74

Child and Youth Advocate Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

Definitions

1 The following definitions apply in this Act.

“Advocate” means the Child and Youth Advocate appointed under section 3 or paragraph10(1)(b), and includes an acting Advocate appointed under subsection 8(5), section 9 or paragraph 10(1)(c). (défenseur)

“authority” means an authority set out in Schedule A. (autorité)

“child” means a person who is under the age of 16 years. (enfant)

“government” means the government of the Province of New Brunswick. (gouvernement)

“service” means a service provided by an authority to children and youths primarily for the purpose of benefiting children and youths. (service)

“youth” means a person who is 16 years of age or older, but under the age of 19 years. (jeune)

Office of the Child and Youth Advocate

2 There is established the Office of the Child and Youth Advocate, which office is charged with the following duties and responsibilities:

(a)  ensuring that the rights and interests of children and youths are protected;

(b)  ensuring that the views of children and youths are heard and considered in appropriate forums where those views might not otherwise be advanced;

(c)  ensuring that children and youths have access to services and that complaints that children and youths might have about those services receive appropriate attention;

(d)  providing information and advice to the government, government agencies and communities about the availability, effectiveness, responsiveness, and relevance of services to children and youths; and

(e)  acting as an advocate for the rights and interests of children and youths generally.

Appointment of Advocate

3(1) There shall be a Child and Youth Advocate appointed by the Lieutenant-Governor in Council on the recommendation of the Legislative Assembly.

3(2) Subject to subsection (3), the Advocate shall be appointed for a term of not less than 5 years and not more than 10 years, and shall not be eligible to be reappointed.

3(3) The Lieutenant-Governor in Council, on the recommendation of the Legislative Assembly, may extend the term of the Advocate for a period of not more than 6 months in order to allow the Advocate to complete an investigation or review.

3(4) The Advocate is an officer of the Legislative Assembly.

3(5) The Legislative Assembly may make general rules for the guidance of the Advocate in the exercise of his or her functions and duties under this Act.

3(6) Notwithstanding the prohibition against reappointing an Advocate in subsection (2), the person holding office as the Advocate immediately before the coming into force of this Act shall be eligible to be appointed in accordance with this Act for one term.

Salary and benefits

4(1) The Lieutenant-Governor in Council shall determine the salary to be paid to and the benefits to be received by the Advocate.

4(2) The Public Service Superannuation Act applies to the Advocate.

4(3) The Advocate may participate in and receive benefits under any health, life, disability or other insurance plan available to employees within the public service, in accordance with the terms upon which the right to participate and receive benefits may from time to time be extended to the Advocate.

Eligibility for appointment

5(1) The Advocate shall not be a member of the Legislative Assembly and shall not hold any other office of trust or profit or engage in any occupation for reward outside the duties of the office of Advocate without the prior approval in each case by the Legislative Assembly or the Lieutenant-Governor in Council when the Legislature is not in session.

5(2) Notwithstanding subsection (1), the Advocate may also hold the office of Ombudsman.

Oath of Advocate

6(1) Before entering upon the exercise of the duties of the office of Advocate, the Advocate shall take an oath to faithfully and impartially perform the duties of the office and not to divulge any information received under this Act except for the purpose of giving effect to this Act.

6(2) The Speaker or the Clerk of the Legislative Assembly shall administer the oath referred to in subsection (1).

Resignation of Advocate

7(1) The Advocate may resign from office by notice in writing addressed to the Speaker of the Legislative Assembly or, if there is no Speaker or the Speaker is absent from the Province, to the Clerk of the Legislative Assembly.

7(2) Within 5 days after receiving the Advocate’s resignation, the Speaker or the Clerk, as the case may be, shall forward a copy of the resignation to the Clerk of the Executive Council.

Suspension or removal of Advocate

8(1) The Advocate shall hold office during good behaviour and may only be removed by the Lieutenant-Governor in Council for incapacity, neglect of duty or misconduct upon an address in which two-thirds of the members of the Legislative Assembly concur.

8(2) The Lieutenant-Governor in Council, upon an address in which a majority of the members of the Legislative Assembly voting concur, may suspend the Advocate, with or without pay, pending an investigation which may lead to removal under subsection (1).

8(3) If the Legislature is not in session, a judge of The Court of Queen’s Bench of New Brunswick may, upon an application by the Lieutenant-Governor in Council, suspend the Advocate, with or without pay, for incapacity, neglect of duty or misconduct.

8(4) If the Lieutenant-Governor in Council makes an application under subsection (3), the practice and procedure of The Court of Queen’s Bench of New Brunswick respecting applications applies.

8(5) If a judge of The Court of Queen’s Bench of New Brunswick suspends the Advocate under subsection (3), the judge shall do the following:

(a)  appoint an acting Advocate to hold office until the suspension has been dealt with by the Legislative Assembly; and

(b)  table a report on the suspension with the Legislative Assembly within 10 days after the commencement of the next session of the Legislature.

8(6) No suspension under subsection (3) shall continue beyond the end of the next session of the Legislature.

8(7) Disclosure by the Advocate of information which the Advocate is required to keep confidential under this Act shall be grounds for removal from office under this section.

Acting Advocate

9 If the Advocate has been suspended under subsection 8(2), the Lieutenant-Governor in Council may appoint an acting Advocate to hold office until the suspension has elapsed.

Filling vacancies

10(1) If the office of Advocate is vacant, the Lieutenant-Governor in Council may do one of the following:

(a)  appoint an Advocate in accordance with section 3;

(b)  if the office of Advocate becomes vacant when the Legislature is not in session, appoint an Advocate without a recommendation from the Legislative Assembly; or

(c)  appoint an acting Advocate to hold office until an Advocate is appointed under section 3 or paragraph (b).

10(2) An appointment under paragraph (1)(b) shall be confirmed by the Legislative Assembly within 30 days after the commencement of the next session of the Legislature and, if the appointment is not so confirmed, the appointment shall terminate and the office of Advocate shall be vacant.

10(3) If an appointment under paragraph (1)(b) is confirmed by the Legislative Assembly, the appointment shall be deemed to be an appointment under section 3.

Staff of Office of the Child and Youth Advocate

11(1) The Advocate may appoint such assistants and employees as the Advocate considers necessary for the efficient carrying out of the functions and duties under this Act.

11(2) Before performing any functions or duties under this Act, a person appointed under subsection (1) shall take an oath, administered by the Advocate, that he or she will not divulge any information that is received under this Act, except for the purpose of giving effect to and in compliance with this Act.

11(3) The Public Service Superannuation Act applies to all persons employed in the Office of the Child and Youth Advocate.

11(4) All persons employed in the Office of the Child and Youth Advocate may participate in and receive benefits under any health, life, disability or other insurance plan available to employees within the public service, in accordance with the terms upon which the right to participate and receive benefits may from time to time be extended to the persons employed in the Office of the Child and Youth Advocate.

11(5) The Advocate may share employees and the cost of such employees with the Office of the Ombudsman.

Delegation of authority

12(1) The Advocate may delegate in writing to any person any power of the Advocate under this Act, except the power of delegation and the power to make a report under this Act.

12(2) Notwithstanding subsection (1), if the Advocate is in a conflict of interest with respect to a matter referred to the Advocate, the Advocate may delegate in writing to any person any power with respect to that matter, including the power to make a report.

12(3) A person purporting to exercise the power of the Advocate by virtue of a delegation under subsection (1) or (2) shall produce evidence of his or her authority to exercise that power when required to do so.

Powers and duties of the Advocate

13(1) In carrying out the functions and duties of the office of Advocate, the Advocate may do any of the following on petition to the Advocate or on his or her own initiative:

(a)  receive and review a matter relating to a child, youth or group of children or youths;

(b)  advocate, mediate or use another dispute resolution process on behalf of a child, youth or group of children or youths;

(c)  if advocacy, mediation or other dispute resolution process has not resulted in an outcome the Advocate considers satisfactory, conduct an investigation on behalf of the child, youth or group of children or youths;

(d)  initiate and participate in, or assist a child or youth to initiate and participate in, a case conference, administrative review, mediation or other process in which decisions are made about the provision of services;

(e)  inform the public about the needs and rights of children and youths, including information about the Office of the Child and Youth Advocate; and

(f)  make recommendations to the government or an authority about legislation, policies and practices respecting services to or the rights of children and youths.

13(2) The Advocate shall not act as legal counsel.

13(3) The Advocate may act under subsection (1) on behalf of a person who is no longer a child or a youth if the matter arose while the person was a child or youth and the matter is referred to the Advocate before the person’s twentieth birthday.

Jurisdiction of Advocate

14(1) The Advocate does not have jurisdiction over and shall not act under section 13 with respect to the following:

(a)  judges and functions of any court of the Province; and

(b)  the deliberations and proceedings of the Executive Council or any committee of it.

14(2) The Advocate shall not investigate or review a matter that is being or has been investigated or reviewed by the Office of the Ombudsman or the New Brunswick Human Rights Commission.

14(3) Notwithstanding any other Act that provides that a decision, recommendation, act or omission is final or that no appeal lies in respect of it or that no proceeding, decision, recommendation, act or omission of an authority or officer of it is to be challenged, reviewed, quashed or called in question, the Advocate may exercise the powers of his or her office.

14(4) This Act does not affect, abrogate, abridge or infringe or authorize the abrogation, abridgment or infringement of any substantive or procedural right or remedy existing elsewhere or otherwise than in this Act.

14(5) If a question arises as to the jurisdiction of the Advocate to investigate a matter under this Act, the Advocate may apply to The Court of Queen’s Bench of New Brunswick for a declaratory order determining the question.

Commencement of investigation or review

15(1) A person may petition the Advocate, in writing or otherwise, to review, investigate or provide advocacy services in relation to a matter within the jurisdiction of the Advocate under this Act.

15(2) A committee of the Legislative Assembly may refer any petition that is before it for consideration, or any matter relating to the petition, to the Advocate to be investigated or reviewed and a report made.

15(3) Notwithstanding section 17, if a matter has been referred to the Advocate under subsection (2), the Advocate, subject to any special directions of the committee, shall investigate the matter as far as it is within the Advocate’s jurisdiction and shall make a report to the committee.

Communication from child or youth

16(1) If a child or youth in a facility, caregiver’s home, group home, or other home or place in which the child or youth is placed under the Criminal Code (Canada), the Youth Criminal Justice Act (Canada), or an Act of the Legislature, asks to communicate with the Advocate, the person in charge of the facility shall immediately forward the request to the Advocate.

16(2) Notwithstanding any other Act, if a child or youth in a facility referred to in subsection (1) writes a letter addressed to the Advocate, the person in charge of the facility shall immediately forward the unopened letter to the Advocate.

Refusal to investigate or review

17(1) The Advocate may, in his or her discretion, refuse to or cease to review, investigate or provide advocacy services in relation to a matter in the following circumstances:

(a)  an adequate remedy or right of appeal already exists, regardless of whether the petitioner has availed himself or herself of the remedy or right of appeal;

(b)  the petition is trivial, frivolous, vexatious or not made in good faith;

(c)  having regard to all the circumstances of the case, further investigation or review is unnecessary;

(d)  the petition relates to a decision, recommendation, act or omission that the petitioner has had knowledge of for more than one year before making the petition;

(e)  the petitioner does not have a sufficient personal interest in the matter; or

(f)  upon a balance of convenience between the public interest and the person aggrieved, the Advocate is of the opinion that the petition should not be investigated or reviewed.

17(2) If the Advocate decides not to act or to cease acting in relation to a petition, the Advocate shall inform the petitioner and any other interested person of the decision and may provide reasons.

17(3) Notwithstanding paragraph (1)(e), the Advocate shall not, due only to a lack of sufficient personal interest on the part of the petitioner, refuse to investigate or review any matter forwarded to the Advocate by the following:

(a)  the Lieutenant-Governor in Council;

(b)  a member of the Legislative Assembly; or

(c)  an authority.

Commissioner under the Inquiries Act

18 For the purposes of this Act, the Advocate is a commissioner under the Inquiries Act.

Procedures respecting an investigation or review

19(1) Before commencing an investigation or review, the Advocate shall inform the administrative head of any authority concerned of the intention to do so.

19(2) An investigation under this Act shall be conducted in private.

19(3) Subject to this Act, the Advocate may hear or obtain information from any person and may make inquiries.

19(4) The Advocate may hold hearings under this Act but, subject to subsections (5) and 25(3), no person shall be entitled as of right to be heard by the Advocate.

19(5) If, during an investigation or review, the Advocate is satisfied that there is prima facie proof that a decision or recommendation made, an act done or omitted or a procedure used with respect to a matter of administration by an authority or an employee of an authority caused a grievance or gave cause for a grievance, the Advocate shall advise the administrative head of the authority or the employee, as the case may be, and shall give the authority or employee an opportunity to be heard.

19(6) A person appearing at a hearing under this section is entitled to be represented by counsel.

19(7) The Advocate may at any time during or after an investigation or review consult any member of the Executive Council who is concerned in the matter.

19(8) On the request of a member of the Executive Council in relation to an investigation or review, or in any case where an investigation or review relates to a recommendation made to a member of the Executive Council, the Advocate shall consult the member after making the investigation or review and before forming a final opinion.

19(9) If, during or after an investigation or review, the Advocate is of the opinion that there is evidence of a breach of duty or misconduct by an authority or an employee of an authority, the Advocate shall refer the matter to the administrative head of the authority.

19(10) For the purposes of this Act, the Advocate may enter upon any premises occupied by an authority and, subject to this section, carry out an investigation or review within the jurisdiction of the Advocate.

19(11) Before entering a premises under subsection (10), the Advocate shall notify the administrative head of the authority of the intention to do so.

19(12) The Advocate shall inform the petitioner in the manner and at the time the Advocate considers appropriate of the result of an investigation or review.

19(13) Subject to this Act and any rules made under subsection 3(5), the Advocate may regulate his or her own procedure.

Witnesses and evidence

20(1) The Advocate may summon and examine under oath the following persons:

(a)  an employee of an authority who in the Advocate’s opinion is able to provide information related to a matter being investigated or reviewed;

(b)  a petitioner; and

(c)  with the approval of the Attorney General, any other person who in the opinion of the Advocate is able to provide information related to a matter being investigated or reviewed.

20(2) The oath referred to in subsection (1) shall be administered by the Advocate.

20(3) The rules for taking evidence in The Court of Queen’s Bench of New Brunswick apply to evidence given by a person required to provide information, answer questions and produce documents or papers under this Act.

20(4) A person required to attend a hearing under this Act is entitled to the same fees, allowances and expenses as a witness in The Court of Queen’s Bench of New Brunswick.

20(5) Except on the trial of a person for perjury, evidence given by a person in proceedings before the Advocate and evidence of any proceeding before the Advocate is not admissible against any person in a court or other proceeding of a judicial nature.

20(6) No person is liable for an offence under any Act by reason of having complied with a requirement of the Advocate under this Act.

Access to information

21(1) Notwithstanding any other Act or claim of privilege, and subject to subsection (3), the Advocate has a right to all information and documentation that is necessary to enable the Advocate to perform the duties and exercise the powers under this Act.

21(2) Subject to subsection (3), if the Advocate requests a person to provide information relating to a matter being investigated or reviewed by the Advocate and the Advocate is of the opinion that the person is able to provide the information, the person shall provide the information and produce any documents or papers that, in the opinion of the Advocate, relate to the matter and that may be in the possession or under the control of the person.

21(3) The Advocate does not have a right to the following information or documents:

(a)  information or documents that would identify a person who gives information under section 30 of the Family Services Act;

(b)  information or documents that would identify a person who gives information under subsection 35.1(1) of the Family Services Act;

(c)  information or documents that would identify a person who makes a report under section 31.1 of the Education Act;

(d)  information or documents protected by a claim of solicitor-client privilege; and

(e)  information or documents certified by the Attorney General as disclosing the following:

(i) the deliberations of the Executive Council or the proceedings of the Executive Council or a committee of the Executive Council;

(ii) secret or confidential information; or

(iii) information that would be injurious to the public interest.

Confidentiality of information

22(1) The Advocate, employees of the Office of the Child and Youth Advocate and any person appointed to assist the Advocate pursuant to a contract for professional services shall keep confidential all information and other matters that come to their knowledge in the exercise of their duties or functions under this Act, unless required to disclose it by law or in furtherance of the Advocate’s mandate under this Act.

22(2) Notwithstanding subsection (1), and subject to subsections (3) and (4), the Advocate may disclose in a report made under this Act those matters which the Advocate considers necessary to disclose in order to establish grounds for his or her conclusions and recommendations.

22(3) A report referred to in subsection (2) shall not disclose the name of, or any identifying information about a child or youth or a parent or guardian of a child or youth unless consent has first been obtained from the child or youth and the parent or guardian.

22(4) The Advocate, employees of the Office of the Child and Youth Advocate and any person appointed to assist the Advocate pursuant to a contract for professional services shall not disclose to any person the following information, unless the information is disclosed in accordance with the provisions of the relevant Act:

(a)  information in a record maintained with respect to a pupil that is inaccessible pursuant to subsection 54(3) of the Education Act;

(b)  information protected from disclosure by section 16.1 or 17 of the Mental Health Act;

(c)  information protected by section 91 of the Family Services Act;

(d)  information that if disclosed would, in the opinion of the Minister who holds the information, be detrimental to the well-being, security, health or care of a child, youth or other person;

(e)  information that would identify a person without the person’s consent; and

(f)  information that the Advocate does not have a right of access to under section 21.

22(5) Failure by an employee to comply with subsection (1), (3) or (4) is sufficient grounds for dismissal or other disciplinary action as the Advocate considers appropriate.

22(6) For the purposes of this section, an employee of the Office of the Child and Youth Advocate includes an employee of the Office of the Ombudsman that is shared with the Advocate under subsection 11(5).

Recommendation of Advocate

23(1) If, after conducting an investigation or review of an authority’s services, the Advocate makes a recommendation to the authority, the Advocate may request that the authority notify him or her within a specified period of the steps that the authority has taken or proposes to take to give effect to the recommendation.

23(2) If, after the period specified under subsection (1), the authority does not act upon the recommendation of the Advocate, refuses to act on it or acts in a manner unsatisfactory to the Advocate, the Advocate may send a report respecting the recommendation to the Lieutenant-Governor in Council and, after doing so, may report on the matter to the Legislative Assembly.

23(3) The Advocate shall include in a report made under subsection (2) a copy of any response provided by the authority respecting the Advocate’s recommendation.

23(4) If the Advocate makes a recommendation under subsection (1) and the authority does not act on the recommendation to the Advocate’s satisfaction, the Advocate shall inform the petitioner of the recommendation and may include any additional comments.

Decision of Advocate final

24 No proceeding of the Advocate is void for want of form and, except on the ground of lack of jurisdiction, no proceedings of the Advocate shall be challenged, reviewed, quashed or called into question in any court.

Report of Advocate

25(1) The Advocate shall report annually to the Legislative Assembly on the exercise of his or her functions and duties under this Act.

25(2) In the interest of children and youths, the public, an authority or any other person, the Advocate may publish a report relating generally to the exercise and performance of the Advocate’s functions and duties under this Act or to a particular case investigated by the Advocate, regardless of whether the matter to be dealt with in the report has been the subject of an annual report made to the Legislative Assembly under subsection (1).

25(3) In a report made by the Advocate under this Act, the Advocate shall not make any finding or comment that is adverse to any person unless the person has been given an opportunity to be heard.

Protection from legal action

26(1) No proceedings lie against the Advocate or any person holding any office or appointment under the Advocate for anything he or she may do, report or say in the course of the exercise or the intended exercise of a function or duty under this Act, unless it is shown that he or she acted in bad faith.

26(2) The Advocate or any person holding any office or appointment under the Advocate shall not be called to give evidence in any court or in any proceedings of a judicial nature in respect of anything coming to his or her knowledge in the exercise of a function or duty under this Act whether or not that function or duty was within his or her jurisdiction.

Offences and penalties

27 A person commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category E offence who does any of the following:

(a)  without lawful jurisdiction or excuse wilfully obstructs, hinders or resists the Advocate or other person in the exercise of his or her functions under this Act;

(b)  without lawful justification or excuse refuses or wilfully fails to comply with a lawful requirement of the Advocate or other person under this Act; or

(c)  wilfully makes a false statement to or misleads or attempts to mislead the Advocate or other person in the exercise of his or her functions under this Act.

Regulations

28 The Lieutenant-Governor in Council may make regulations

(a)  respecting circumstances that give rise to a conflict of interest;

(b)  establishing committees to advise the Advocate on matters affecting children and youths;

(c)  respecting remuneration of members of any committee established under this Act;

(d)  respecting forms for the purposes of this Act;

(e)  respecting any other matter as may be necessary for the proper administration of this Act.

Repeal

29 The Child and Youth Advocate Act, chapter C-2.5 of the Acts of New Brunswick, 2004, is repealed.

SCHEDULE A

1 Departments of the Government

2 A person, corporation, commission, board, bureau or other body that is, or the majority of the members of which are, or the majority of the members of the board of management or board of directors of which are

a)appointed by an Act, Minister or the Lieutenant-Governor in Council,

b)in the discharge of their duties, public officers or servants of the Province, or

c)responsible to the Province

3 Municipalities and rural communities

4 District education councils and school districts established under the Education Act

5 Institutions as defined in the Adult Education and Training Act

6 Regional health authorities as defined in the Regional Health Authorities Act

7 Any other agency of the Crown in right of the Province