Bill 26 - Inquiries Act

BILL 26

Inquiries Act

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

DEFINITIONS

Definitions

1 The following definitions apply in this Act.

“commission” means a commission of inquiry established under section 2. (commission)

“commissioner” means a person appointed as a commissioner under paragraph 2(2)(b). (commissaire)

“court” means The Court of Queen’s Bench of New Brunswick. (Cour)

“document” means a record of information in any form. (document)

“Minister” means the member of the Executive Council designated under paragraph 2(2)(e). (ministre)

“participant” means a person permitted under section 7 to participate in an inquiry or a person who receives notice under section 29. (participant)

“sheriff” means a sheriff, a deputy sheriff or a sheriff’s officer appointed under the Sheriffs Act. (shérif)

ESTABLISHING A COMMISSION OF INQUIRY

Establishing a commission

2( 1) The Lieutenant-Governor in Council may, by order, establish a commission of inquiry to inquire into and report on any matter that the Lieutenant-Governor in Council considers to be of public interest.

2( 2) In an order establishing a commission, the Lieutenant-Governor in Council

(a) shall set the terms of reference for the inquiry,

(b) shall appoint one or more persons as commissioners,

(d) may designate a chair from among the commissioners, if more than one is appointed,

(e) shall designate a member of the Executive Council responsible for communications between the commission and the government,

(f) may set a date for the delivery of the commission’s report,

(g) may set a budget for the commission, and

(h) may provide for administrative matters, including

( i) expenditures for services and facilities,

( ii) the remuneration of persons referred to in section 6,

( iii) payment of appearance fees and expenses to witnesses, and

( iv) the preservation and disposal of the records of the inquiry.

2( 3) The Lieutenant-Governor in Council may amend or revoke an order made under this section.

Terms of reference

3 The powers of a commission under this Act are subject to the terms of reference set by the Lieutenant-Governor in Council under paragraph 2(2)(a).

Joint commissions

4 The Lieutenant-Governor in Council may

(a) establish a joint commission of inquiry with the government of another province or a territory of Canada or the Government of Canada, and

(b) exempt the joint commission from any provision of this Act or the regulations to avoid a conflict of law.

Funding of commission

5 The expenditures incurred in connection with a commission shall be paid out of the Consolidated Fund.

Commission staff

6 A commission may engage the services of counsel, stenographers, assistants, persons with special knowledge of the subject matter of the inquiry and other persons the commission considers necessary to perform its duties.

PARTICIPANTS

Participation

7( 1) A person may apply to participate in an inquiry by making an application to the commission in the manner it requires.

7( 2) A commission may permit a person to participate in an inquiry if the commission considers that

(a) the person’s interests may be affected by the findings of the commission, or

(b) the person’s participation would further the conduct of the inquiry.

Manner and extent of participation

8 Subject to section 9 and paragraph 29(b), a commission may determine the manner and extent of a participant’s participation in an inquiry.

Representation of participant

9 A participant may participate in an inquiry on his or her own behalf or may be represented by counsel or, with the approval of the commission, by an agent.

DUTIES AND POWERS OF COMMISSION

General duties

10 A commission shall conduct an inquiry fairly, efficiently and in accordance with the terms of reference.

General powers

11 In the performance of its duties, a commission may

(a) hold hearings,

(b) receive information and submissions,

(d) consult with persons, groups and the public.

Processes and procedures

12( 1) A commission has the power to determine its own processes and procedures.

12( 2) Without limiting subsection (1), a commission may give directions respecting the following:

(a) timetables for the conduct of the inquiry;

(b) adjournments;

(d) applications to be a participant;

(e) the disclosure of information;

(f) the recording and transcription of hearings;

(g) forms;

(h) the service and filing of documents; and

(i) the filing of submissions.

Power to order production of documents

13 A commission may order a person to produce to the commission, or provide the commission with access to, any relevant document in his or her possession or control.

Power to issue summonses and administer oaths

14 A commission may

(a) by summons, require a person to attend before the commission, testify under oath or affirmation and produce to the commission any relevant document or other thing in his or her possession or control, and

(b) administer oaths and affirmations.

Inspection

15( 1) If a commission considers that it would further the conduct of the inquiry, a commissioner or a person designated by the commission may enter and inspect any place that is relevant to the subject matter of the inquiry.

15( 2) In conducting an inspection, a commissioner or a person designated by the commission may

(a) require a person to produce any relevant document or other thing,

(b) inspect or copy any relevant document or other thing, and

15( 3) If a commissioner or a person designated by the commission is refused entry into a place, the commission may apply to the court for a warrant authorizing the commissioner or person designated by the commission to enter and inspect the place and do the things referred to in subsection (2).

15( 4) The court may issue a warrant under subsection (3) if it is satisfied that there are reasonable grounds for believing that the inspection would further the conduct of the inquiry.

15( 5) The warrant may contain any conditions that the court considers appropriate.

Maintaining order

16( 1) A commission may make any order that it considers necessary to maintain order at a hearing, including an order that a person be removed from a hearing.

16( 2) If a person fails to comply with an order made under subsection (1), the commission may call on the assistance of a police officer or sheriff to enforce the order.

Enforcement of orders

17 If a person fails to comply with a summons issued or an order made under this Act, a commission may apply to the court for one or both of the following orders:

(a) an order directing the person to comply with the summons or order; and

(b) an order finding the person in contempt of the commission and imposing punishment in the same manner as if the person had been found in contempt of court.

INFORMATION AND WITNESSES

Admissibility of information

18 A commission may receive any information that is relevant to the subject matter of the inquiry, whether or not it would be admissible in a proceeding in the court.

Privilege

19 A witness is not required to disclose to a commission any information that would be privileged under the law of evidence in a proceeding in the court.

Disclosure prohibited under another Act

20( 1) If a witness has information the disclosure of which is prohibited under another Act, a commission

(a) may require the witness to disclose the information to the commission, and

(b) shall receive the information in private.

20( 2) When a commission receives information under subsection (1), it shall determine the extent to which the information will be disclosed to the participants and the public, after considering whether the public interest in access to the inquiry is outweighed by the interest underlying the prohibition on disclosure of the information.

Immunities of witnesses

21( 1) A witness at a hearing of a commission has the same immunities as a witness at a proceeding in the court.

21( 2) An answer given by a witness shall not be used or admitted in evidence against that person in any proceeding other than a prosecution for perjury in respect of the answer given.

PUBLIC HEARINGS AND
PROTECTION OF INFORMATION

Public hearings

22 Subject to section 23, a commission shall ensure that all hearings held by the commission are open to the public.

Restrictions on access

23 If a commission considers that the public interest in access to the inquiry is outweighed by another consideration, including the administration of justice, public security, a person’s privacy, security or financial interests or a person’s right to a fair trial, the commission may, by order,

(a) restrict or prohibit public reporting of all or part of its proceedings,

(b) restrict or prohibit the publication of any information received at a hearing,

(d) exclude a participant from a hearing or part of a hearing, and

(e) restrict or prohibit access to information received at a hearing.

No waiver of privilege or immunity

24 If a person discloses to a commission any information over which the person asserts privilege or immunity, the privilege or immunity is not waived or defeated for any other purpose by the disclosure.

No disclosure by commissioner

25 A commissioner or a person acting on behalf of a commission shall not disclose to any person information obtained under this Act, except in the performance of duties under this Act.

REPORT AND RECORDS

Report of commission

26( 1) A commission shall prepare a report on the inquiry in accordance with the terms of reference.

26( 2) A commission may exclude from the report, or summarize in the report, relevant information if it considers that the public interest in the disclosure of the information is outweighed by another consideration, including the administration of justice, public security, a person’s privacy, security or financial interests or a person’s right to a fair trial.

Delivery of report

27( 1) A commission shall deliver the report to the Minister, and, if a date is set under section 2 for the delivery of the report, it shall do so by that date.

27( 2) The Minister shall provide the report to the Lieutenant-Governor in Council and subsequently release the report to the public.

Preservation of records

28 Subject to the regulations and any matter provided for under subparagraph 2(2)(h)(iv), the Minister shall make arrangements for the preservation and disposal of the records of an inquiry in accordance with the Archives Act.

GENERAL

Misconduct

29 A commission shall not make a finding of misconduct against a person unless the commission has provided the person with

(a) reasonable notice of the alleged misconduct, and

(b) an opportunity to be heard by the commission.

Immunity

30 A proceeding shall not be commenced against a commission, a commissioner or a person acting on behalf of a commission for any act or omission made in good faith in the exercise or performance, or intended exercise or performance, of any power or duty under this Act.

Commissioner not compellable

31 A commissioner or a person acting on behalf of a commission shall not be required to provide evidence in any proceeding about any information obtained under this Act.

Protection of employees

32( 1) An employer shall not dismiss, suspend, lay off, penalize, discipline or discriminate against an employee for a reason related to the employee’s participation in an inquiry.

32( 2) An employee may apply to the court for a remedy for a contravention of subsection (1).

32( 3) If the court is satisfied that the employer has contravened subsection (1), it may make any order in favour of the employee that it considers just, including an order for reinstatement and an award of damages.

Application to the court

33 A commission may apply to the court for a determination on any question of law or jurisdiction.

Judicial review

34( 1) Any person directly affected by a decision, act, order or summons of a commission may apply to the court for judicial review.

34( 2) If a person or body exercises a power under this Act as authorized under another Act or a regulation under another Act, any person directly affected by the exercise of the power may apply to the court for judicial review.

Other commissions or inquiries

35 The Lieutenant-Governor in Council is not precluded by this Act from establishing a commission or an inquiry to which this Act does not apply.

Council of Maritime Premiers

36( 1) The Lieutenant-Governor in Council may vest the powers and privileges of a commission under this Act in any body established or person appointed by, under or in relation to the Council of Maritime Premiers for the purpose of studying, investigating or hearing and determining a matter of common concern among the Provinces of New Brunswick, Nova Scotia and Prince Edward Island.

36( 2) The powers and privileges vested under subsection (1) may be exercised by the body or person in relation to persons, organizations and documents resident or situated within New Brunswick wherever the study, investigation or hearing is conducted or held within the region comprised of the Provinces of New Brunswick, Nova Scotia and Prince Edward Island.

Regulations

37 The Lieutenant-Governor in Council may make regulations

(a) providing for the administrative matters referred to in paragraph 2(2)(h);

(b) prescribing the form of the summons referred to in section 14 and the warrant referred to in section 15 and other forms to be used under this Act;

(d) respecting any other matter that the Lieutenant-Governor in Council considers necessary or advisable for the purposes of this Act.

CONSEQUENTIAL AMENDMENTS

Right to Information and Protection of Privacy Act

38( 1) Section 1 of the Right to Information and Protection of Privacy Act, chapter R-10.6 of the Acts of New Brunswick, 2009, is amended in paragraph (b) of the definition “public body”

(a) in subparagraph (ii) of the English version by striking out “or” at the end of the subparagraph;

(b) in subparagraph (iii) by striking out the period at the end of the subparagraph and substituting a comma followed by “or”;

( iv) a commission of inquiry established under the Inquiries Act.

38( 2) Section 4 of the Act is amended by adding after paragraph (g) the following:

(g.1) a record made by or for a commission of inquiry established under the Inquiries Act or a commissioner appointed under that Act,

REPEAL AND COMMENCEMENT

Repeal

39( 1) The Inquiries Act, chapter 173 of the Revised Statutes, 2011, is repealed.

39( 2) New Brunswick Regulation 83-167 under the Inquiries Act is repealed.

39( 3) New Brunswick Regulation 84-96 under the Inquiries Act is repealed.

Commencement

40 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.