BILL 5

Missing Persons Act

His 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.

“chief officer” means a chief of police as defined in the Police Act whose police force conducts a missing person investigation or the Commanding Officer of the “J” Division of the Royal Canadian Mounted Police when it conducts a missing person investigation. (agent en chef)

“emergency demand” means an emergency demand for records referred to in section 6. (demande formelle urgente)

“judge” means a judge of the Provincial Court of New Brunswick. (juge)

“Minister” means the Minister of Public Safety and includes any person designated by the Minister to act on the Minister’s behalf. (ministre)

“missing person” means (personne disparue)

(a)  a person whose whereabouts are unknown and who has not been in contact with those persons who would likely or normally be in contact with the person, or

(b)  a person

( i) whose whereabouts are unknown despite reasonable efforts to locate the person, and

( ii) whose safety and welfare are feared for given the person’s age, physical, mental, intellectual or sensory impairments or the circumstances surrounding the person’s absence.

“officer” means a police officer as defined in the Police Act or a member of the “J” Division of the Royal Canadian Mounted Police who assists in a missing person investigation conducted by their police force. (agent)

“person at risk” means a missing person who is assessed to be a person at risk in accordance with section 15. (personne à risque)

“police force” means a police force as defined in the Police Act or the “J” Division of the Royal Canadian Mounted Police that conducts a missing person investigation. (corps de police)

“record” means a record as defined in the Right to Information and Protection of Privacy Act. (document)

“record access order” means an order made under section 3. (ordonnance d’accès aux documents)

“search order” means an order made under section 5. (ordonnance de recherche)

“vulnerable person” means (personne vulnérable)

(a)  a person for whom a committee or person is appointed under the Infirm Persons Act, or

(b)  a person whom the Minister of Social Development puts under protective care under the Family Services Act.

RECORD ACCESS ORDERS

AND SEARCH ORDERS

Application for order

2 During the course of a missing person investigation, an officer may apply without notice and in the manner prescribed by regulation to a judge for a record access order or a search order.

Record access order

3( 1) A judge may make an order requiring a person to give a police force access to and, if requested, provide the police force with copies of the records referred to in section 4 about a missing person if the judge is satisfied that there are reasonable grounds to believe that the records

(a)  are in the possession or under the control of the person, and

(b)  may assist the police force in locating the missing person.

3( 2) If the missing person is a minor, a vulnerable person or a person at risk and there are reasonable grounds to believe that the missing person may be in the company of a third party, the judge may make an order requiring a person to give the police force access to and, if requested, provide the police force with copies of the records referred to in section 4 about the third party if the judge is satisfied that there are reasonable grounds to believe that the records

(a)  are in the possession or under the control of the person, and

(b)  may assist the police force in locating the missing person.

3( 3) In determining whether to issue a record access order under subsection (1) or (2), the judge shall consider any information that suggests that the missing person may not wish to be located, including information that suggests that the missing person has left or is attempting to leave a violent or abusive situation.

3( 4) The judge may include a provision in the order requiring a person to provide to the police force an accounting of the efforts made by the person to locate the records that cannot be found.

3( 5) The judge may impose any terms and conditions that the judge considers appropriate on the order.

Records that may be subject to record access order

4 Access to the following records about a missing person or a third party may be required under a record access order:

(a)  the records prescribed by regulation; and

(b)  any other record the judge considers appropriate.

Search order – minor, vulnerable person or person at risk

5( 1) A judge who is satisfied that there are reasonable grounds to believe that a missing person who is a minor, a vulnerable person or a person at risk may be located in a premises, including a private dwelling, may make an order authorizing officers to enter, by force if necessary, the premises and search for the missing person.

5( 2) The judge may authorize entry between 9 p.m. and 6 a.m. if the judge is satisfied that it is necessary for officers to enter the premises at that time in order to ensure the safety of the missing person.

5( 3) The judge may impose any terms and conditions that the judge considers appropriate on the order.

EMERGENCY DEMANDS

Emergency demand

6( 1) An officer may serve an emergency demand on a person requiring that person to give access to and, if requested, provide copies of the records prescribed by regulation about a missing person to the officer’s police force if the officer has reasonable grounds to believe that a missing person is at risk of imminent serious bodily harm or death and

(a)  the records are in the possession or under the control of the person who is served with the emergency demand,

(b)  the records may assist the police force in locating the missing person, and

(c)  immediate access to records is necessary to prevent serious bodily harm to or the death of the missing person or the destruction of the records.

6( 2) An emergency demand shall be on a form provided by the Minister.

6( 3) The officer who serves an emergency demand on a person shall, as soon as the circumstances permit, file a written report with their chief officer setting out the circumstances in which the emergency demand was made.

Obligation to comply with emergency demand

7 A person who is served with an emergency demand shall, as soon as possible,

(a)  give the police force access to the records specified in the emergency demand and, if requested, provide the police force with copies of those records, and

(b)  if the person is unable to locate a record specified in the emergency demand, provide to the police force an accounting of the efforts made by the person to locate that record.

Application for order

8 If a person who is served with an emergency demand under section 6 fails to comply with the emergency demand, the officer may, in the manner prescribed by regulation, apply to a judge for an order requiring the person to comply with the emergency demand.

Order to comply with emergency demand

9( 1) A judge may make an order requiring a person to comply with an emergency demand if the judge is satisfied that there are reasonable grounds to believe that the records specified in the emergency demand

(a)  are in the possession or under the control of the person, and

(b)  may assist the police force in locating the missing person.

9( 2) The judge may impose any terms and conditions that the judge considers appropriate on the order.

Annual report – emergency demands

10( 1) On or before March 31 in each year, a police force shall submit to the Minister, on a form provided by the Minister, a report containing the following information:

(a)  the number of missing person investigations in which an emergency demand was made during the previous calendar year;

(b)  the number of persons who were served with an emergency demand in that year;

(c)  a description of the types of records specified in the emergency demands made during that year; and

(d)  any other information prescribed by regulation.

10( 2) On or before May 31 of each year, the Minister shall make the report available to the public by posting it on the Government of New Brunswick website.

USE AND DISCLOSURE

OF INFORMATION AND RECORDS

Use of information and records

11( 1) A police force may use information and records obtained under this Act only for

(a)  the purpose of locating a missing person or a use consistent with that purpose, or

(b)  a purpose for which the information or records may be disclosed under section 12.

11( 2) If a missing person investigation becomes a criminal investigation, this section does not prevent information and records obtained under this Act from being used for the purposes of the criminal investigation.

Disclosure of information and records

12( 1) The information and records obtained by a police force under this Act are confidential and may not be disclosed except in accordance with this section.

12( 2) The police force may disclose information or records obtained under this Act only as follows:

(a)  if the person the information or record is about has consented to the disclosure;

(b)  the disclosure is authorized or required by law;

(c)  for the purpose of locating a missing person or a use consistent with that purpose;

(d)  to the Government of Canada or any of its agencies, the government of a province or territory of Canada or any of its agencies, another law enforcement agency in Canada or a law enforcement agency in a foreign country under an arrangement, written agreement, treaty or legislative authority only to the extent necessary to further a missing person investigation or to coordinate missing person investigations; or

(e)  in accordance with subsections (3) to (6).

12( 3) For the purposes of furthering its missing person investigation, the police force may disclose the following information to the public in any manner that the chief officer considers appropriate:

(a)  the missing person’s name;

(b)  the age of the missing person;

(c)  a physical description of the missing person;

(d)  a photograph of the missing person;

(e)  information about any medical conditions of the missing person that may pose a serious or immediate threat to the health of the missing person;

(f)  pertinent information about a vehicle;

(g)  the location where the missing person was last seen;

(h)  the circumstances surrounding the disappearance of the missing person; and

(i)  any other information prescribed by regulation.

12( 4) The police force may disclose to the public in any manner that the chief officer considers appropriate that the missing person has been located.

12( 5) Subject to the regulations, if the missing person is located and the person is a minor, the police force may, without the consent of the minor, disclose information and records obtained under this Act about the minor to a parent or guardian of the minor if, in the opinion of the chief officer, the disclosure will protect the safety of the minor.

12( 6) Subject to the regulations, if the missing person is located and the person is a vulnerable person, the police force may, without the consent of the vulnerable person, disclose information and records obtained under this Act about the vulnerable person to a person who belongs to a class of persons prescribed by regulation if, in the opinion of the chief officer, the disclosure will protect the safety of the vulnerable person.

12( 7) If the missing person investigation becomes a criminal investigation, this section does not prevent the disclosure of information and records obtained under this Act for the purposes of the criminal investigation.

Legal privilege

13 Nothing in this Act compels the disclosure of any information or records that are subject to any type of legal privilege, including solicitor-client privilege.

Other rights

14 This Act does not restrict any authority that a police force would otherwise have to collect information or records.

GENERAL

Person at risk assessment

15( 1) An officer may assess whether a missing person is a person at risk.

15( 2) In making an assessment under subsection (1), the officer shall consider

(a)  whether the missing person is at risk of harm because the missing person

( i) may be likely to provide sexual services for consideration,

( ii) may have been hitchhiking when the missing person went missing,

( iii) may be likely to self-harm,

( iv) may have a substance use disorder,

( v) may require medication, or

( vi) may not be prepared to deal with the weather or the terrain of the location where the missing person may have gone missing, and

(b)  any other factor the officer considers relevant.

Court records

16 A judge who is satisfied that public access to the records of the Provincial Court of New Brunswick relating to an application or an order made under this Act may interfere with a missing person investigation or endanger the safety of any person may order that the records or any part of them be sealed and kept in a location to which the public has no access.

Offences and penalties

17 A person commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category H offence if the person

(a)  violates or fails to comply with an order made under this Act, or

(b)  violates or fails to comply with section 11 or 12.

Conflict

18 If this Act is inconsistent with or in conflict with a provision of the Right to Information and Protection of Privacy Act or a provision of the Personal Health Information Privacy and Access Act, this Act prevails.

Immunity

19 No action, application or other proceeding lies or shall be instituted against a person in relation to anything done or purported to be done in good faith, or in relation to anything omitted in good faith, under this Act by the person.

Service of documents

20 An emergency demand that is to be served on a person under this Act may be served and service may be proven in accordance with the relevant provisions of the Provincial Offences Procedure Act.

Administration

21 The Minister is responsible for the administration of this Act and may designate one or more persons to act on the Minister’s behalf.

Review of this Act

22 Within five years after the commencement of this Act, the Minister shall undertake a review of the operation of this Act, and, once it is complete, the Minister shall conduct a subsequent review within seven years after the completion date and every seven years after that.

Regulations

23 The Lieutenant-Governor in Council may make regulations:

(a)  governing the procedure that applies for making an application for a search order or a record access order under section 2 or an order requiring a person to comply with an emergency demand under section 8;

(b)  prescribing records for the purposes of paragraph 4(a) and subsection 6(1);

(c)  prescribing information for the purposes of paragraphs 10(1)(d) and 12(3)(i);

(d)  prescribing the factors a chief officer shall consider when deciding whether to disclose information and records under subsection 12(5) or (6);

(e)  prescribing classes of persons to whom information and records may be disclosed under subsection 12(6);

(f)  respecting the use, retention and disposal of records for the purposes of this Act;

(g)  respecting the disclosure of information and records for the purposes of this Act;

(h)  defining any word or expression used in but not defined in this Act for the purposes of this Act, the regulations or both; and

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

COMMENCEMENT

Commencement

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