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Copyright 2001: Queen’s Printer,
St. John's, Newfoundland and Labrador, Canada

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Statutes of Newfoundland and Labrador 2001


Statutes of Newfoundland and Labrador 2001 Chapter C-12.01

CHAPTER C-12.01

AN ACT RESPECTING THE CHILD AND YOUTH ADVOCATE

(Assented to December 13, 2001)

Analysis

1. Short title

2. Definitions

3. Office of Child and Youth Advocate established

4. Appointment of the Child and Youth Advocate

5. Officer of House of Assembly

6. Term of office

7. Removal or suspension

8. Suspension when House of Assembly not sitting

9. Salary and pension

10. Expenses

11. Advocate's staff

12. Oath of office

13. Confidentiality of information

14. Delegation

15. Powers and duties of the advocate

16. Reference by Lieutenant-Governor in Council

17. Communication by child or youth

18. Refusal to investigate or review

19. Report of refusal to investigate

20. Notice of investigation

21. Right to information

22. Defence for certain offences

23. Right of entry

24. Notice of proposed steps

25. Report to complainant

26. Proceedings against advocate prohibited

27. Advocate not to be called as witness

28. Annual report to House of Assembly

29. Publication of reports

30. Regulations

31. Offence and penalty

32. Schedule

33. Consequential
Amdt.

34. Commencement

Schedule

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 Child and Youth Advocate Act.

Definitions

2. In this Act

(a) "advocate" means the Child and Youth Advocate appointed under section 4;

(b) "agency of the government" means a board, commission, association, or other body of persons, whether incorporated or unincorporated, included in the Schedule;

(c) "child" means a person under the age of 16 years;

(d) "Commission of Internal Economy" means the commission established under the Internal Economy Commission Act;

(e) "department" means a department created under the Executive Council Act, or a branch of the executive government of the province;

(f) "service" means a service provided by a department or agency of the government to children and youth the principal objective of which is to benefit children and youth; and

(g) "youth" means a person who is 16 years of age but under 19 years of age and includes a youth

(i) in care or custody under the Child, Youth and Family Services Act,

(ii) on remand under the Criminal Code or the Young Offenders Act (Canada),

(iii) subject to a sentence under the Criminal Code, or

(iv) subject to a disposition under the Young Offenders Act (Canada),

who is under 21 years of age.

Office of Child and Youth Advocate established

3. The Office of the Child and Youth Advocate is established

(a) to ensure that the rights and interests of children and youth are protected and advanced and their views are heard and considered;

(b) to ensure that children and youth have access to services and that their complaints relating to the provision of those services receive appropriate attention;

(c) to provide information and advice to the government, agencies of the government and to communities about the availability, effectiveness, responsiveness and relevance of services to children and youth; and

(d) generally, to act as an advocate of the rights and interests of children and youth.

Appointment of the Child and Youth Advocate

4. (1) The Office of the Child and Youth Advocate shall be filled by the Lieutenant-Governor in Council on a resolution of the House of Assembly.

(2) Before appointing a person as the advocate under subsection (1), the Lieutenant-Governor in Council shall solicit applications for the position from the general public.

(3) Where

(a) the advocate is unable to perform his or her duties of office; or

(b) the office of the advocate is vacant,

the Lieutenant-Governor in Council shall appoint a person to act as the advocate in a temporary capacity.

Officer of House of Assembly

5. (1) The advocate is an officer of the House of Assembly and is not eligible to be nominated for election to or to be elected as, or to sit as, a member of the House of Assembly.

(2) The advocate shall not hold another public office or carry on a trade, business or profession.

Term of office

6. (1) Unless he or she sooner resigns, dies or is removed from office, the advocate shall hold office for 6 years from the date of his or her appointment, and he or she may be re-appointed for a second term of 6 years, but not for more than 2 terms of 6 years.

(2) The advocate may resign his or her office in writing addressed to the Speaker of the House of Assembly, or, where there is no Speaker or the Speaker is absent, to the Clerk of the House of Assembly.

Removal or suspension

7. The Lieutenant-Governor in Council, on a resolution of the House of Assembly carried by a majority vote of the members of the House of Assembly actually voting, may remove the advocate from office or suspend him or her because of an incapacity to act, or for neglect of duty, or for misconduct.

Suspension when House of Assembly not sitting

8. (1) Where the House of Assembly is not in session, the Lieutenant-Governor in Council may suspend the advocate because of an incapacity to act, or for neglect of duty, or for misconduct proved to the satisfaction of the Lieutenant-Governor in Council, but the suspension shall not continue in force beyond the end of the next ensuing session of the House of Assembly.

(2) Where the advocate is suspended under subsection (1), the Lieutenant-Governor in Council shall appoint an acting advocate to hold office until the suspension has been dealt with in the House of Assembly.

Salary and pension

9. (1) The advocate shall be paid a salary fixed by the Lieutenant-Governor in Council after consultation with the Commission of Internal Economy.

(2) The salary of the advocate shall not be reduced except on resolution of the House of Assembly carried by a majority vote of the members of the House of Assembly actually voting.

(3) The advocate is subject to the Public Service Pensions Act, 1991 where he or she was subject to that Act prior to his or her appointment as advocate.

Expenses

10. The advocate shall be paid the travelling and other expenses incurred by him or her in the performance of his or her duties that may be approved by the Commission of Internal Economy.

Advocate's staff

11. (1) The advocate may, subject to the approval of the Commission of Internal Economy, and in the manner provided by the Public Service Commission Act, appoint those assistants and employees that the advocate considers necessary to enable him or her to carry out his or her functions under this Act.

(2) Persons employed under subsection (1) are members of the public service of the province.

Oath of office

12. Before beginning to perform his or her duties, the advocate shall swear an oath or affirm before the Speaker of the House of Assembly or the Clerk of the House of Assembly that he or she shall faithfully and impartially perform the duties of his or her office.

Confidentiality of information

13. (1) The advocate and every person employed under him or her shall keep confidential all matters that come to their knowledge in the exercise of their duties or functions under this Act.

(2) Notwithstanding subsection (1), the advocate may disclose in a report made by him or her under this Act those matters which he or she considers it necessary to disclose in order to establish grounds for his or her conclusions and recommendations.

(3) A report the advocate makes under this Act shall not disclose the name of or identifying information about a child or youth or a parent or guardian of the child or youth except and in conformity with the requirement of subsection 29(2).

Delegation

14. (1) The advocate may in writing delegate to another person his or her powers under this Act except the power to make a report under this Act.

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

Powers and duties of the advocate

15. (1) In carrying out the duties of his or her office, the advocate may

(a) receive and review a matter relating to a child or youth or a group of them, whether or not a request or complaint is made to the advocate;

(b) advocate or mediate or use another dispute resolution process on behalf of a child, youth or a group of them, whether or not a request or complaint is made to the advocate;

(c) where advocacy or mediation or another dispute resolution process has not resulted in an outcome the advocate believes is satisfactory, conduct an investigation on behalf of the child or youth or a group of them, whether or not a request or complaint is made to the advocate;

(d) initiate and participate in, or assist children and youth to initiate and participate in, case conferences, administrative reviews, mediations, or other processes in which decisions are made about the provision of services;

(e) meet with and interview children and youth;

(f) inform the public about the needs and rights of children and youth including about the office of the advocate; and

(g) make recommendations to the government, an agency of the government or communities about legislation, policies and practices respecting services to or the rights of children and youth.

(2) The advocate may not act as legal counsel.

Reference by Lieutenant-Governor in Council

16. The Lieutenant-Governor in Council or a minister may refer to the advocate, for review, investigation and report by him or her, a matter relating to the interests and well-being of children and youth and the advocate shall,

(a) subject to a special direction of the Lieutenant-Governor in Council, investigate or review the matter referred to him or her to the extent that it is within his or her jurisdiction; and

(b) make a report to the Lieutenant-Governor in Council or minister that he or she considers appropriate.

Communication by child or youth

17. (1) Where a child or youth in a facility, caregiver's home, group home or other home or place in which he or she is placed under an Act of the province, the Criminal Code or the Young Offenders Act (Canada), asks to communicate with the advocate, that request shall be forwarded to the advocate immediately by the person in charge of the place.

(2) Where a child or youth in a place referred to in subsection (1) writes a letter addressed to the advocate, the person in charge of the place shall forward the letter immediately, unopened, to the advocate.

(3) Every facility, caregiver's home, group home or other home or place in which a child is placed under an Act of the province, the Criminal Code or the Young Offenders Act (Canada), shall be given written information telling them about the office of the advocate, their right to bring any grievance to the advocate, and how they may contact the advocate.

Refusal to investigate or review

18. The advocate, in his or her discretion, may refuse to review or investigate or may cease to review or investigate a complaint where

(a) it relates to a decision, recommendation, act or omission of which the complainant has had knowledge for more than one year before the complaint is received by the advocate;

(b) in his or her opinion it is frivolous or vexatious or not made in good faith or concerns a trivial matter;

(c) the complainant does not have a sufficient personal interest in the subject matter of the complaint;

(d) in his or her opinion, upon a balance between the public interest and the person aggrieved, the complaint should not be investigated or the investigation should not be continued;

(e) in his or her opinion the circumstances of the complaint do not require investigation; or

(f) the law, or existing administrative procedure, provides a remedy adequate in the circumstances for the person aggrieved and, where the person aggrieved has not availed himself or herself of the remedy, there is no reasonable justification for his or her failure to do so.

Report of refusal to investigate

19. Where the advocate decides not to review or investigate or to cease reviewing or investigating a complaint, he or she shall inform the complainant, and other interested persons, of his or her decision and shall provide to them reasons for his or her decision.

Notice of investigation

20. Before reviewing or investigating a complaint, or before conducting a review or an investigation of a department's or agency's services, the advocate shall inform the deputy minister or the administrative head of the department or agency of the government affected of his or her intention to conduct the review or investigation.

Right to information

21. (1) The advocate has the right to information respecting children and youth that is

(a) in the custody or control of a department or agency of the government; and

(b) necessary to enable the advocate to perform his or her duties or exercise his or her powers under the Act,

except

(c) information that could reasonably be expected to reveal the identity of a person who has made a report under section 15 of the Child, Youth and Family Services Act; and

(d) information that is not permitted to be made public by section 26 of the Adoption of Children Act.

(2) A person who has custody or control of information to which the advocate is entitled under subsection (1) shall disclose the information to the advocate.

(3) This section applies despite another act or a claim of privilege, except a claim based on a solicitor-client relationship.

Defence for certain offences

22. A person is not guilty of an offence against another Act by reason of his or her compliance with a request or requirement of the advocate to furnish information or produce a document, paper or thing, or by reason of answering a question in a review or an investigation conducted by the advocate.

Right of entry

23. (1) For the purpose of this Act, the advocate may enter a premises occupied by a department or agency of the government in connection with a review or an investigation within his or her jurisdiction.

(2) Upon entering a premises under subsection (1), the advocate shall notify the deputy minister or administrative head of the department or agency of the government that occupies the premises.

Notice of proposed steps

24. (1) Where, after conducting a review of a department's or an agency's services, or an investigation, the advocate makes a recommendation, he or she may request the department or agency of the government to whom the recommendation is made to notify him or her within a specified time of the steps that it has taken or proposes to take to give effect to his or her recommendations.

(2) Where, within a reasonable time after a request respecting recommendations is made under this section, no action is taken which seems to the advocate to be adequate and appropriate, the advocate, in his or her discretion, after considering the comments made by or on behalf of the department or agency of the government affected, may report the matter, including a copy of the report containing the recommendations, to the Lieutenant-Governor in Council and may mention the report in the advocate's next annual report to the House of Assembly.

(3) A report made under subsection (2) shall include any comments made by or on behalf of the department or agency of the government upon the opinion or recommendation of the advocate.

Report to complainant

25. Where the advocate conducts a review or an investigation on the basis of a complaint received by him or her, he or she shall report to the complainant, in the manner and at the time that he or she considers appropriate, the result of the investigation.

Proceedings against advocate prohibited

26. An action does not lie against the advocate or against a person employed under the advocate for anything he or she may do or report or say in the course of the exercise or performance, or intended exercise or performance, of his or her functions and duties under this Act, unless it is shown he or she acted in bad faith.

Advocate not to be called as witness

27. The advocate and a person employed under him or her shall not be called to give evidence in a court or in a proceeding of a judicial nature in respect of anything coming to his or her knowledge in the exercise or performance of his or her functions and duties under this Act.

Annual report to House of Assembly

28. The advocate shall report annually to the House of Assembly through the Speaker on the exercise and performance of his or her functions and duties under this Act.

Publication of reports

29. (1) In the interest of children and youth or in the public interest, or in the interest of a person, department or agency of the government, the advocate may publish reports relating generally to the exercise and performance of his or her functions and duties under this Act or to a particular case investigated by him or her, whether or not the matters to be dealt with in the report have been the subject of the report made to the House of Assembly under this Act.

(2) The advocate shall not include the name of a child or youth in a report he or she makes under subsection (1) unless he or she has first obtained the consent of the child or youth and his or her parent or guardian.

Regulations

30. (1) The Commission of Internal Economy may make regulations

(a) for the guidance of the advocate in the exercise and performance of his or her functions and duties under this Act; and

(b) generally, to give effect to the purpose of this Act.

(2) Except where regulations respecting it are made under subsection (1), the advocate may determine his or her procedure.

Offence and penalty

31. A person who

(a) obstructs, hinders, or resists the advocate or another person in the exercise or performance of his or her functions and duties under this Act;

(b) refuses or fails to comply with a lawful requirement of the advocate or another person under this Act; or

(c) makes a false statement to or misleads or attempts to mislead the advocate or another person in the exercise or performance of his or her functions and duties under this Act,

is guilty of an offence and liable, on summary conviction, to a fine of not more than $1,000 or to imprisonment for a term not exceeding 3 months, or to both.

Schedule

32. (1) The Lieutenant-Governor in Council may, by order, add or remove a board, commission, association or other body of persons, whether incorporated or unincorporated, to or from the Schedule.

(2) An order made under subsection (1), is subordinate legislation for the purpose of the Statutes and Subordinate Legislation Act.

(3) Notwithstanding subsection (1), a board, commission, association or other body of persons, whether incorporated or unincorporated, shall not be removed from the Schedule unless the removal is recommended by the Commission of Internal Economy.

Consequential
Amdt.

33. Paragraph 19(f) of the Citizens' Representative Act is repealed and the following substituted:

(f) a matter falling within the office of the child and youth advocate under the Child and Youth Advocate Act.

Commencement

34. This Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council.

 

Schedule

Criminal Code Mental Disorder Review Board (section 672.38 Criminal Code)

A hospital board or authority incorporated under the Hospitals Act

A health and community services board incorporated under the Health and Community Services Act

Mental Health Review Board

Newfoundland and Labrador Legal Aid Commission

The Newfoundland & Labrador Housing Corporation

A board, commission or other body added to this Schedule by order of the Lieutenant-Governor in Council

 

 

 

 

 

 

 

 

 

 

 

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