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SNL2001 CHAPTER C-12.01

CHILD AND YOUTH ADVOCATE ACT

Amended:

2006 cM-9.1 s83; 2007 cH-10.1 s70; 2008 c30; 2008 cP-7.01 s94; 2008 c47 s14; 2009 c30 s4; 2012 c27 s7; 2013 cA-3.1 s84; 2016 c6 s4

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 Child and Youth Advocate

       
5.   Status of advocate

       
6.   Term of office

       
7.   Removal or suspension

       
8.   Suspension when House of Assembly not sitting

     
8.1   Acting advocate

       
9.   Salary, pension and benefits

     
10.   Expenses

     
11.   Advocate's staff

     
12.   Oath of office

     
13.   Confidentiality of information

     
14.   Delegation

     
15.   Powers and duties of the advocate

   
15.1   Restriction on jurisdiction

   
15.2   Minister may restrict investigation

   
15.3   Restriction on jurisdiction

     
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.   Evidence

   
21.1   Restrictions on disclosure

   
21.2   Application of certain rules

   
21.3   Admissibility of evidence

     
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 .

2001 cC-12.01 s1

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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)  "House of Assembly Management Commission" means the commission continued under section 18 of the House of Assembly Accountability, Integrity and Administration 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 Youth Criminal Justice Act (Canada ),

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

                    (iv)  subject to a disposition under the Youth Criminal Justice Act (Canada ),

who is under 21 years of age.

2001 cC-12.01 s2; 2007 cH-10.1 s70; 2008 c30 s1

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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;

          (c.1)  to review and investigate matters affecting the rights and interests of children and youth; and

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

2001 cC-12.01 s3; 2008 c30 s3

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Appointment of Child and Youth Advocate

        4. On resolution of the House of Assembly, the Lieutenant-Governor in Council shall appoint a Child and Youth Advocate.

2016 c6 s4

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Status of advocate

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

2016 c6 s4

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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 shall not hold office for more than 2 terms.

             (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.

2016 c6 s4

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Removal or suspension

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

2016 c6 s4

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Suspension when House of Assembly not sitting

        8. When the House of Assembly is not sitting, the Lieutenant-Governor in Council may suspend the advocate because of an incapacity to act or for misconduct, cause or neglect of duty but the suspension shall not continue in force beyond the end of the next sitting of the House of Assembly.

2016 c6 s4

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Acting advocate

      8.1 (1) The Lieutenant-Governor in Council may, on the recommendation of the House of Assembly Management Commission, appoint an acting advocate if

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

             (b)  the office of the advocate becomes vacant or the advocate is suspended when the House of Assembly is not sitting; or

             (c)  the office of the advocate becomes vacant or the advocate is suspended when the House of Assembly is sitting, but the House of Assembly does not pass a resolution to appoint an advocate before the end of that sitting.

             (2)  Where the office of the advocate becomes vacant and an acting advocate is appointed under paragraph (1)(b) or (c), the term of the acting advocate shall not extend beyond the end of the next sitting of the House of Assembly.

             (3)  An acting advocate holds office until

             (a)  the advocate returns to his or her duties after a temporary inability to perform;

             (b)  the suspension of the advocate ends or is dealt with in the House of Assembly; or

             (c)  a person is appointed as advocate under section 4.

2016 c6 s4

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Salary, pension and benefits

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

             (2)  The salary of the advocate shall not be reduced except on resolution of the House of Assembly.

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

             (4)  Where the advocate was not subject to the Public Service Pensions Act, 1991 before his or her appointment as advocate, he or she shall be paid, for contribution to a registered retirement savings plan, an amount equivalent to the amount which he or she would have contributed to the Public Service Pension Plan were the circumstances in subsection (3) applicable. 

             (5)  The advocate is eligible to receive the same benefits as a deputy minister, with the exception of a pension where subsection (4) applies.

2016 c6 s4

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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 House of Assembly Management Commission.

2001 cC-12.01 s10; 2007 cH-10.1 s70

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Advocate's staff

      11. (1) The advocate may, subject to the approval of the House of Assembly Management Commission, 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.

2001 cC-12.01 s11; 2007 cH-10.1 s70

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Oath of office

      12. (1) 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.

             (2)  Every person employed under the advocate shall, before he or she begins to perform his or her duties, swear an oath, or affirm, before the advocate that he or she shall not, except as provided by this Act, divulge information received by him or her under this Act.

2001 cC-12.01 s12; 2008 c30 s3

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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).

2001 cC-12.01 s13

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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.

2001 cC-12.01 s14

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Powers and duties of the advocate

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

             (a)  receive, review and investigate 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.

2001 cC-12.01 s15; 2008 c30 s4

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Restriction on jurisdiction

   15.1 Nothing in this Act authorizes the advocate to investigate

             (a)  a decision, recommendation, act, order or omission of the House of Assembly, the Lieutenant-Governor, a committee of the House of Assembly, the Lieutenant-Governor in Council, the Executive Council, or a committee of the Executive Council;

             (b)  an order, decision or omission of a court, a judge of a court, a master of a court, or a justice of the peace made or given in an action or proceeding in the court, or before the judge, master or justice of the peace;

             (c)  a matter in respect of which there is under an Act a right of appeal or objection or a right to apply for a review on the merits of the case to a court or tribunal constituted by or under an Act, until after the right of appeal, objection or application has been exercised or until after the time limit for the exercise of that right has expired;

             (d)  a matter which is the subject of a review by the Child Death Review Committee under the authority of section 13.2 of the Fatalities Investigations Act; or

             (e)  a matter which is the subject of a public inquiry under the authority of section 26 of the Fatalities Investigations Act until that public inquiry has been completed.

2008 c30 s5; 2012 c27 s7

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Minister may restrict investigation

   15.2 (1) Where the Minister of Justice certifies in writing to the advocate that the investigation of a matter would be contrary to the public interest under the circumstances, the advocate shall not investigate the matter, or, where the advocate has commenced an investigation of the matter, he or she shall discontinue the investigation.

             (2)  Where a certificate is given under subsection (1), the advocate shall include that fact and a brief description of the circumstances of the matter in his or her next annual report to the House of Assembly.

2008 c30 s5

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Restriction on jurisdiction

   15.3 Nothing in this Act authorizes the advocate or his or her employees or assistants to investigate an act, omission, decision, recommendation, refusal or information policy or procedure of a custodian in relation to personal health information under the Personal Health Information Act, or a matter falling within the office of the commissioner to which that Act applies.

2008 cP-7.01 s94

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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.

2001 cC-12.01 s16

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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 Youth Criminal Justice 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 Youth Criminal Justice 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.

2001 cC-12.01 s17; 2008 c30 s6

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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.

2001 cC-12.01 s18

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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.

2001 cC-12.01 s19

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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.

2001 cC-12.01 s20

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Evidence

      21. (1) The advocate may require a person who, in his or her opinion, is able to give information relating to a matter being investigated by him or her

             (a)  to furnish the information to him or her; and

             (b)  to produce a document, paper or thing that in his or her opinion relates to the matter being investigated and that may be in the possession or under the control of the person,

whether or not the person is an officer, employee or member of a department or an agency of the government and whether or not the document, paper or thing is in the custody or under the control of the department or agency of the government.

         (1.2)  The advocate may summon before him or her and examine on oath or affirmation a person who in the opinion of the advocate is able to give information relating to a matter being investigated by him or her.

         (1.3)  The advocate has the right to information respecting children and youth except

             (a)  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

             (b)  information that is not permitted to be made public by section 37 of the Adoption Act, 2013.

             (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.

2001 cC-12.01 s21; 2008 c30 s7; 2009 c30 s4; 2013 cA-3.1 s84

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Restrictions on disclosure

   21.1 Where the Minister of Justice certifies that the giving of information or the answering of a question or the production of a document, paper or thing might involve the disclosure of

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

             (b)  proceedings of the Executive Council, or a committee of the Executive Council, relating to matters of a secret or confidential nature and would be injurious to the public interest; or

             (c)  interfere with or impede the investigation or detection of an offence,

the advocate shall not require the information or answer to be given or the document, paper or thing to be produced, but shall report the giving of the certificate to the House of Assembly.

2008 c30 s8

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Application of certain rules

   21.2 (1) A rule of law that authorizes or requires the withholding of a document, paper or thing, or the refusal to answer a question, on the ground that the disclosure or answering would be injurious to the public interest, does not apply in respect of an investigation by the advocate.

             (2)  A provision of an Act requiring a person to maintain secrecy in relation to, or not to disclose information relating to, a matter shall not apply in respect of an investigation by the advocate, and a person required by the advocate to furnish information or to produce a document, paper or thing or summoned by the advocate to give evidence, shall not refuse to furnish the information, produce the document, paper or thing, or to answer questions on the ground of that provision.

2008 c30 s8

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Admissibility of evidence

   21.3 Except on the trial of a person for perjury, a statement made or answer or evidence given by that or another person in the course of an investigation by the advocate is not admissible in evidence against the person in a court or at an inquiry or in another proceeding.

2008 c30 s8

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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.

2001 cC-12.01 s22

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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.

2001 cC-12.01 s23

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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.

2001 cC-12.01 s24

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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.

2001 cC-12.01 s25

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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.

2001 cC-12.01 s26

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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.

2001 cC-12.01 s27

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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.

2001 cC-12.01 s28

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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.

2001 cC-12.01 s29

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Regulations

      30. (1) The House of Assembly Management Commission 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.

2001 cC-12.01 s30; 2007 cH-10.1 s70

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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.

2001 cC-12.01 s31

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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 House of Assembly Management Commission.

2001 cC-12.01 s32; 2007 cH-10.1 s70

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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 .

2001 cC-12.01 s33

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Commencement

      34. This Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council.  (In force - May 13/02)

2001 cC-12.01 s34

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Schedule

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

A regional health authority established under the Regional Health Authorities Act

Office of the Chief Medical Examiner (Fatalities Investigations Act )

Mental Health Care and Treatment Review Board

Newfoundland and Labrador Legal Aid Commission

Newfoundland and Labrador Housing Corporation

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

2008 c30 s8