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SNL2014 CHAPTER M-16.2

MISSING PERSONS ACT

Amended:

2015 cA-1.2 s130

CHAPTER M-16.2

AN ACT RESPECTING MISSING PERSONS

(Assented to December 16, 2014)

Analysis



Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

Short title

        1. This Act may be cited as the Missing Persons Act .

2014 cM-16.2 s1

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Definitions

        2. In this Act

             (a)  "custodian" means a custodian as defined in the Personal Health Information Act ;

             (b)  "judge" means a Provincial Court judge;

             (c)  "missing person" means

                      (i)  an individual whose whereabouts are unknown and who has not been in contact with those persons who would likely be in contact with the individual, or

                     (ii)  an individual

                            (A)  whose whereabouts are unknown despite reasonable efforts to locate the individual, and

                            (B)  whose safety and welfare are feared for given the individual's physical or mental capabilities or the circumstances surrounding the individual's absence;

             (d)  "person", except when used to refer to a missing person or a vulnerable person, includes a partnership, custodian, public body, association or other organization;

             (e)  "personal health information" means personal health information as defined in the Personal Health Information Act ;

             (f)  "police force" means

                      (i)  the Royal Newfoundland Constabulary, and

                     (ii)  the Royal Canadian Mounted Police;

             (g)  "public body" means a public body as defined in the Access to Information and Protection of Privacy Act, 2015 ;

             (h)  "record access order" means an order made under section 6;

              (i)  "search order" means an order made under section 7; and

              (j)  "vulnerable person" means

                      (i)  an adult in need of protective intervention as defined in the Adult Protection Act , or

                     (ii)  a mentally disabled person as defined in the Mentally Disabled Persons' Estates Act .

2014 cM-16.2 s2; 2015 cA-1.2 s130

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Crown bound

        3. This Act binds the Crown.

2014 cM-16.2 s3

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Labrador Inuit rights

        4. This Act and the regulations made under this Act shall be read and applied in conjunction with the Labrador Inuit Land Claims Agreement Act and, where a provision of this Act or the regulations made under this Act is inconsistent or conflicts with a provision, term or condition of the Labrador Inuit Land Claims Agreement Act , the provision, term or condition of the Labrador Inuit Land Claims Agreement Act shall have precedence over the provision of this Act or a regulation made under this Act.

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Application

        5. (1) Where a police force is conducting an investigation into a missing person, a member of the police force may apply to a judge for a record access order or search order.

             (2)  An application under subsection (1) may be made without notice to another person.

2014 cM-16.2 s5

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Record access order

        6. (1) A member of a police force who has reasonable grounds to believe that a person has records respecting a missing person may apply to a judge for an order requiring the person to give members of the police force access to, and if requested, copies of, the records set out in subsection (2) respecting a missing person that

             (a)  may assist the police force in locating the missing person; and

             (b)  are in the possession or under the control of the person.

             (2)  The records that may be accessed under a record access order include

             (a)  records containing contact or identification information;

             (b)  telephone and other electronic communication records, including

                      (i)  records related to signals from a wireless device that may indicate the location of the wireless device,

                     (ii)  cell phone records,

                    (iii)  inbound and outbound text messaging records, and

                    (iv)  internet browsing history records;

             (c)  global positioning system tracking records;

             (d)  video records, including closed circuit television footage;

             (e)  records containing employment information;

             (f)  records containing personal health information;

             (g)  records from a school, university or other educational institution containing attendance information;

             (h)  records containing travel and accommodation information;

              (i)  records containing financial information; and

              (j)  any other records the judge considers appropriate.

             (3)  Where the missing person is a minor or a vulnerable person and there are reasonable grounds to believe that the missing person may be in the company of another person, the judge may order that members of the police force be given access to, and if requested, copies of, the records set out in subsection (2) respecting the person who may be accompanying the missing person.

             (4)  The judge may make a record access order if he or she is satisfied on oath or affirmation that the order may assist the police force in locating the missing person.

             (5)  The judge may impose restrictions or limits on the records to be produced under a record access order that he or she considers appropriate.

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

2014 cM-16.2 s6

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Search order

        7. A judge who is satisfied on oath or affirmation that there are reasonable grounds to believe that a missing person who is a minor or a vulnerable person may be in a dwelling or other premises may make an order authorizing members of a police force to enter, by force if necessary, the dwelling or other premises and search for the missing person.

2014 cM-16.2 s7

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Application by telecommunication

        8. (1) Where, in the opinion of a member of the police force, it would not be practical to personally appear before a judge to apply for a record access order or a search order, the application may be made by telephone, facsimile or other means of telecommunication.

             (2)  Where the information on which an application for a record access order or a search order is submitted by telephone, facsimile or other means of telecommunication, the information shall be given under oath or affirmation, and the oath or affirmation may be administered by telephone, facsimile or other means of telecommunication.

             (3)  The information submitted by telephone, facsimile or other means of telecommunication shall include

             (a)  a statement of the circumstances that make it impracticable for the member of the police force to appear personally before a judge; and

             (b)  a statement of the grounds for believing that

                      (i)  the requested records may assist the police force in locating a missing person, or

                     (ii)  a missing person who is a minor or a vulnerable person may be in a dwelling or other premises.

             (4)  The sworn or affirmed information submitted by telephone, facsimile or other means of telecommunication shall specify the name of the person giving evidence, the facts ascertained and the manner and location in which evidence was received, and a record of that information shall be filed by the judge with a clerk of the court over which the judge presides.

2014 cM-16.2 s8

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Court records

        9. Where a judge is satisfied that public access to the court records relating to a record access order or a search order would interfere with the investigation into a missing person he or she may order that the court records, or any part of them, be sealed and kept in a location to which the public has no access.

2014 cM-16.2 s9

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Emergency demand for records

      10. (1) Notwithstanding section 6, if there are reasonable grounds to believe that immediate access to records is necessary to prevent imminent bodily harm to or the death of a missing person, a member of a police force may serve a written demand on any person requiring that person to give members of the police force access to those records that are in the person's possession or under the person's control.

             (2)  The records that may be accessed under a demand under this section include

             (a)  records containing contact or identification information;

             (b)  telephone and other electronic communication records, including

                      (i)  records related to signals from a wireless device that may indicate the location of the wireless device,

                     (ii)  cell phone records,

                    (iii)  inbound and outbound text messaging records, and

                    (iv)  internet browsing history records;

             (c)  global positioning system tracking records;

             (d)  video records, including closed circuit television footage;

             (e)  records containing employment information to the extent that the records might indicate when the missing person was last seen or heard from and when, where and how the missing person is paid;

             (f)  records containing personal health information to the extent that the records might indicate if the missing person has been recently admitted to a hospital and, if the records do so indicate, which hospital and the date and time of, and the reason for, admission;

             (g)  records from a school, university or other educational institution containing attendance information;

             (h)  records containing travel and accommodation information;

              (i)  records containing financial information to the extent that the records might indicate

                      (i)  if one or more of the missing person's credit cards were recently used and, if the records do so indicate, when, where and for what purpose the credit cards were used, or

                     (ii)  if one or more of the missing person's bank accounts were recently accessed and, if the records so indicate, when, from where and for what purpose the bank accounts were accessed; and

              (j)  any other records prescribed in the regulations.

             (3)  A person who is served with a demand under this section shall give members of the police force access to, and if requested, copies of, the records within the time specified in the demand.

             (4)  When a member of a police force serves a demand under this section, he or she shall file a written report with his or her commanding officer that sets out the circumstances in which the demand was made.

             (5)  A police force shall prepare an annual report respecting its use of demands under this section, and shall file it with the Minister of Justice and Public Safety who shall make the report available to the public.

             (6)  The annual report under subsection (5) shall include

             (a)  the number of missing person investigations in which a demand under this section was made in that year and the total number of persons who were served with a demand in that year; and

             (b)  other information prescribed in the regulations.

2014 cM-16.2 s10

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Failure to comply with demand

      11. (1) If a person who is served with a demand under section 10 does not comply with the demand, a member of the police force may apply to a judge for an order directing the person to comply with the demand.

             (2)  The judge may make an order requiring the person to comply with a demand   under section 10 if he or she is satisfied that

             (a)  the records demanded are in the possession or under the control of the person; and

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

2014 cM-16.2 s11

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Use of information

      12. (1) Notwithstanding section 38 of the Access to Information and Protection of Privacy Act , information and records obtained by a police force under this Act shall be used 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 may be disclosed under section 13.

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

2014 cM-16.2 s12

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Restrictions on disclosure of information

      13. (1) Any information or records obtained by a police force under this Act are confidential and shall not be disclosed except in accordance with this section.

             (2)  Notwithstanding section 39 of the Access to Information and Protection of Privacy Act , information and records obtained by a police force under this Act shall be disclosed only

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

             (b)  when required by law;

             (c)  to another law enforcement agency in Canada or a law enforcement agency in another country under an arrangement, written agreement, treaty or legislative authority, but only to the extent necessary to further the investigation into the missing person;

             (d)  where the person the information or records are about has consented to the disclosure; or

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

             (3)  For the purposes of furthering an investigation into a missing person, a police force may release the following information obtained under this Act respecting the missing person to the public through a media release, by posting the information on a website or in another manner the police force considers appropriate:

             (a)  the missing person's name;

             (b)  a physical description of the missing person;

             (c)  a photograph of the missing person;

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

             (e)  pertinent vehicle information;

             (f)  the location where the missing person was last seen; and

             (g)  the circumstances surrounding the disappearance of the missing person.

             (4)  A police force may publicly announce that a missing person has been located.

             (5)  A police force may disclose information and records obtained under this Act to other law enforcement agencies and government departments or agencies, to the extent necessary to coordinate investigations respecting missing persons.

             (6)  If an investigation into a missing person becomes a criminal investigation, this section does not prevent the disclosure of information and records obtained by a police force under this Act for the purposes of the criminal investigation.

2014 cM-16.2 s13

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Consistent purpose

      14. For the purpose of paragraphs 12(1)(a) and 13(2)(a), a use of information and records is consistent with the purpose for which the information and records were obtained if the use

             (a)  has a reasonable and direct connection to that purpose; and

             (b)  is necessary for performing the statutory duties of, or for operating a program or activity of, the police force.

2014 cM-16.2 s14

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No access to privileged information

      15. Nothing in this Act compels the disclosure of any information or records that are subject to any type of legal privilege.

2014 cM-16.2 s15

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Rights unaffected

      16. Nothing in this Act affects

             (a)  the powers and duties of the Information and Privacy Commissioner under the Access to Information and Protection of Privacy Act or the Personal Health Information Act ; or

             (b)  the authority that a police force would otherwise have to collect any information or records.

2014 cM-16.2 s16

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Offences

      17. A person who contravenes section 12 or 13 is guilty of an offence and is liable on summary conviction to a fine of not more than $10,000.

2014 cM-16.2 s17

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Protection from liability

      18. An action does not lie against a person in respect of anything done or omitted to be done in good faith under this Act.

2014 cM-16.2 s18

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Regulations

      19. The Lieutenant-Governor in Council may make regulations

             (a)  respecting applications for record access orders and search orders;

             (b)  respecting the types of records that may be accessed under a demand under this Act;

             (c)  respecting applications for orders to compel compliance with a demand under this Act;

             (d)  respecting the service of orders and demands under this Act;

             (e)  respecting annual reports under section 10;

             (f)  respecting the collection, use and retention of information and records obtained under this Act;

             (g)  respecting the types of records to be kept and maintained under this Act;

             (h)  defining a word or expression used but not defined in this Act; and

              (i)  generally to give effect to this Act.

2014 cM-16.2 s19

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Review

      20. The minister shall, every 5 years, perform a review of this Act and the regulations made under it, the principles upon which it is based and consider the areas in which they may be improved.

2014 cM-16.2 s20

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Commencement

      21. This Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council. (In force - Oct. 16/15)

2014 cM-16.2 s21