Legislative Assembly of New Brunswick
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Child and Youth Advocate Act +

Legislature :
55
Session :
1
Bill No. :
46
Member :
Mr. S. Graham
First Reading :
2004-4-21
Second Reading :
2004-4-22
Committee of the Whole :
2004-6-30
Amended :
2004-6-30
Third Reading :
2004-6-30
Royal Assent :
2004-6-30
Download PDF :
Bill 46
Note :
See amendment at the end of the text of the Bill.

Text of Bill :
Chapter Outline



Short Title....... 1

Definitions..... 2

advocate — défenseur

child — enfant

service — service

youth — jeune

Office of the advocate..... 3

Appointment and term....... 3(2)

Officer of the Legislative Assembly 3(4)

Suspension and dismissal 3(5), 3(6), 3(7), 3(8)

Temporary replacement... 3(9), 3(10)

Annual Report to the Legislative Assembly............ 3(15)

Staff of the Advocate.... 4

Hiring subject to the Civil Service Act............... 4(1)

Contracting for services. 4(2)

Confidentiality obligations............... 4(5)

Delegation...... 5

Protection from legal action 6

Confidential information 7

Powers and duties of the advocate..... 8

Communications from children and youths.. 9

Duties on persons in charge of facilities where children   and youths reside..... 9(1), 9(2)

Duty on advocate to notify facility heads of their   obligations............... 9(3)

Refusal to investigate or review...... 10

Right to information 11

Compliance with advocate's recommendation............. 12

Proceedings against the advocate... 13

Advocate not to be called as witness..... 14

Publication of reports..... 15

Offence and penalty..... 16

Regulations.. 17

Commencement.................. 18



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



1                           This Act may be cited as the Child Advocate Act.



2                           The following definitions apply in this Act.



"advocate" means the Child and Youth Advocate appointed under section 3. (défenseur)



"child" means a person under 16 years of age. (enfant)



"service" means a service provided by a department, board, institution, or agency of the government to children and youths, primarily for the purpose of benefiting children and youths. (service)



"youth" means a person who is at least 16 years of age and less than 19 years of age. (jeune)



3(1)                   There is hereby established the Office of the Child and Youth Advocate, which office is charged with



(a)                      ensuring that the rights and interests of children and youths are protected;



(b)                      ensuring that the views of children and youths are heard and considered in appropriate forums, where those views might not otherwise be advanced;



(c)                      ensuring that children and youths have access to services, and that complaints children and youths might have about those services receive appropriate attention;



(d)                      providing information and advice to the government, government agencies, and communities, about the availability, effectiveness, responsiveness, and relevance of services to children and youths; and



(e)                      acting as an advocate for the rights and interests of children and youths generally.



3(2)                              Notwithstanding the Civil Service Act, the Lieutenant-Governor in Council shall, following a public solicitation for applications, appoint a qualified person to be the New Brunswick advocate for a fixed term to be determined by the Lieutenant-Governor in Council of not less than 5 years and not more than 10 years.



3(3)                   The advocate is eligible for reappointment under subsection (2), but may only be so appointed twice.



3(4)                   The advocate is an officer of the Legislative Assembly.



3(5)                   The advocate holds office during good behaviour and may only be removed for incapacity, neglect of duty, or misconduct, by the Lieutenant-Governor in Council upon an address in which two-thirds of the Members of the Legislative Assembly concur.



3(6)                   The Lieutenant-Governor in Council, upon an address in which a majority of the Members of the Legislative Assembly actually voting concur, may suspend the advocate, with or without pay, pending an investigation which may lead to action under subsection (5).



3(7)                              Where the Legislative Assembly is not in session, the Lieutenant-Governor in Council may suspend the advocate with pay, but such a suspension shall be



(a)                      affirmed by the Legislative Assembly;



(b)                      altered by the Legislative Assembly to suspension without pay; or



(c)                      struck down by the Legislative Assembly,



within 15 days of the opening of the next session of the Legislative Assembly.



3(8)                   If no action is taken by the Legislative Assembly under subsection (7) within 15 days of the opening of the next session, the suspension shall expire and the advocate shall return to work.



3(9)                   In the event of absence or incapacity of the advocate, or if the office of the advocate is vacant, the Lieutenant-Governor in Council may appoint a person to perform temporarily the duties of the advocate.



3(10)               The office of the advocate may be filled by a temporary appointment for no more than one year before,



(a)                      notwithstanding subsection (5), the absent or incapacitated advocate shall be removed from office, where applicable;



(b)               any temporary advocate shall be dismissed; and



(c)               a new advocate shall be appointed pursuant to subsection (2).



3(11)               The advocate shall be paid an annual salary as determined by the Lieutenant-Governor in Council within the deputy head pay plan, and is entitled to receive benefits similar to those received by deputy heads.



3(12)               The Public Service Superannuation Act applies to the advocate.



3(13)               The advocate shall not be a member of the Legislative Assembly and shall not, without prior approval in each particular case by the Legislative Assembly, or the Lieutenant-Governor in Council when the Legislative Assembly is not in session, hold any office of trust or profit or engage in any occupation for reward, other than the office of advocate.



3(14)                              Before entering upon the exercise of the duties of the office, the advocate shall take an oath (or affirmation), administered by the Speaker or the Clerk of the Legislative Assembly, that he or she will faithfully and impartially perform the duties of the office of the advocate, will observe and comply with the laws of Canada and New Brunswick, and will not disclose any information received by him or her unless required by law or in furtherance of the advocate's mandate under this Act.



3(15)               The advocate shall report annually to the Legislative Assembly through the Speaker on the exercise and performance of his or her functions and duties under this Act.



4(1)                   Such employees as are required for the office of the advocate, and for the purposes of this Act, shall be hired in accordance with the Civil Service Act.



4(2)                              Notwithstanding subsection (1), the advocate may contract for such professional services, for limited periods of time or in respect of particular matters, as the advocate considers necessary to enable him or her to fulfil his or her responsibilities under this Act.



4(3)                   The advocate shall



(a)                      determine the staff required for the operation of the office of the advocate;



(b)                      provide for the classification and organization of positions of persons employed in the office of the advocate;



(c)                      determine and regulate payments that may be made to persons employed in the office of the advocate by way of reimbursement of travelling or other expenses and by way of allowances in respect of expenses and conditions arising out of their employment;



(d)                      determine requirements for the training and development of personnel in the office of the advocate and fix the terms on which such training and development may be carried out;



(e)                      establish standards of competence and discipline for the office of the advocate and prescribe the penalties, including suspension (with or without pay) and dismissal, that may be applied for incompetence, incapacity or for breaches of discipline or misconduct, and the circumstances, manner, and authority by which or whom those penalties may be applied, varied, or rescinded in whole or in part; and



(f)                      provide for such other matters, including terms and conditions of employment, not otherwise specifically provided for in this subsection, as he or she considers necessary for effective personnel management in the office of the advocate.



4(4)                   The Public Service Superannuation Act applies to all persons employed in the office of the advocate.



4(5)                              Employees in the office of the advocate shall not disclose any information received unless required by law or in furtherance of the advocate's mandate under this Act.



4(6)                   A failure of an employee to adhere to subsection (5) is hereby deemed sufficient grounds for dismissal or other disciplinary action as the advocate sees fit.



5(1)                   The advocate may delegate in writing to any person employed in the office of the advocate, or to any person appointed to assist him or her pursuant to a contract for professional services, authority to exercise any power or perform any duty of the advocate except the power to make a report under this Act.



5(2)                   A person purporting to exercise the power of the advocate by virtue of a delegation under subsection (1) shall produce evidence of his or her authority to exercise that power when required to do so.



6                           No proceedings lie against the advocate, any person employed in the office of the advocate or any person appointed to assist the advocate pursuant to a contract for professional services, for anything he or she may do, report or say in the course of the exercise or the intended exercise of functions under this Act, unless it is shown that he or she acted in bad faith.



7(1)                   The advocate, every person employed in the office of the advocate, and any person appointed to assist the advocate pursuant to a contract for professional services shall keep confidential all matters that come to their knowledge in exercise of their duties or functions under this Act.



7(2)                              Notwithstanding subsection (1), the advocate may disclose in a report made under this Act those matters which the advocate considers necessary to disclose in order to establish grounds for his or her conclusions and recommendations.



7(3)                   Any report made pursuant to subsection (2) shall not disclose the name of, or any identifying information about a child or youth or a parent or guardian of a child or youth unless consent has first been obtained from the child or youth and the parent or guardian.



8(1)                   In carrying out the duties of his or her office the advocate may



(a)                      receive and review a matter relating to a child, a youth, or a group of children and/or youths, 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 children and/ or youths, 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 deems satisfactory, conduct an investigation on behalf of the child, youth, or group of children and/or youths;



(d)                      initiate and participate in, or assist children and youths 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 youths;



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



(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 youths.



8(2)                   The advocate shall not act as legal counsel.



9(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 the Criminal Code (Canada), the Youth Criminal Justice Act (Canada), or a provincial Act, asks to communicate with the advocate, the person in charge of the facility shall immediately forward that request to the advocate.



9(2)                              Where a child or youth in a designated facility under subsection (1) writes a letter addressed to the advocate, the person in charge of the facility shall forward the letter immediately, unopened, to the advocate.



9(3)                   Every facility under subsection (1) shall be given written information about the office of the advocate, the rights of the facility to bring any grievance to the advocate, and any obligations the facility might have under this Act.



10(1)               The advocate may, at his or her discretion, refuse to investigate or review, or may cease to investigate or review, a complaint where



(a)               the complaint 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 the advocate's opinion the complaint is frivolous, vexatious, or concerns a trivial matter;



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



(d)               a remedy that the advocate deems adequate exists, the aggrieved person has not availed himself or herself of that remedy, and there is no reasonable justification for the complainant's failure to resort to the remedy.



10(2)                              Where the advocate decides not to investigate or review a complaint, or ceases to investigate or review a complaint, the advocate shall inform the complainant and any other interested persons of his or her decision and shall provide written reasons for the decision.



10(3)               The advocate shall not, due only to a lack of sufficient personal interest under subsection (2), refuse to investigate or review any complaint forwarded by,



(a)               the Lieutenant-Governor in Council;



(b)               a Member of the Legislative Assembly of New Brunswick; or



(c)               any department of the Government of New Brunswick.



11(1)               The advocate has a right to information respecting children and youths where such information 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 this Act,



except information protected under section 91 of the Family Services Act.



11(2)               This section applies despite any claim of privilege other than a claim based on a solicitor-client relationship.



11(3)               No person shall be found guilty of an offence under any other Act for conduct undertaken in compliance with this section.



11(4)               For the purpose of this Act the advocate may enter any premises occupied by a department or agency of the government if such entry is reasonably connected with an investigation or review within the advocate's jurisdiction.



12(1)                              Where, after conducting an investigation or review of a department's or agency's services, the advocate makes recommendations, the advocate may request the department or agency of the government to whom the recommendation is made to notify him or her within a specified period of the steps that the department or agency has taken, or proposes to take, to affect those recommendations.



12(2)                              Where, under subsection (1), no action is taken within a period of time that the advocate deems adequate, the advocate may, at his or her discretion, report the matter to the Lieutenant-Governor in Council and shall mention the fact in the advocate's next annual report to the Legislative Assembly.



12(3)               A report made under subsection (2) shall include the recommendations made by the advocate under subsection (1), and any comments made by or on behalf of the department or agency in response to the recommendations.



13                        An action does not lie against the advocate or against any person employed in the office of the advocate or any person appointed to assist the advocate pursuant to a contract for professional services authority, for anything that such person 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 that he or she acted in bad faith.



14(1)               The advocate, and any person employed in the office of the advocate or any person appointed to assist the advocate pursuant to a contract for professional services, shall not be called to give evidence in a court or in other proceedings 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.



14(2)                              Subsection (1) does not apply to any criminal proceedings in respect of a violent crime to which the advocate, an employee, or an appointee, was an eyewitness.



15(1)               In the interest of children and youths 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 the advocate's functions and duties under this Act or to a particular case investigated by the advocate, whether or not the matters to be dealt with in the report have been the subject of the annual report made to the Legislative Assembly under this Act.



15(2)               Any report made pursuant to subsection (2) shall not disclose the name of, or any identifying information about a child or youth or a parent or guardian of a child or youth unless consent has first been obtained from the child or youth and the parent or guardian.



16                        A person who knowingly



(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;



(c)                      makes a false statement to, 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; or



(d)                      engages in any other conduct proscribed by regulations made pursuant to this Act;



commits an offence that is punishable under Part II of the Provincial Offences Procedure Act as a category F offence.



17                        The Lieutenant-Governor in Council may make regulations



(a)                      imposing duties on the advocate beyond those imposed in this Act;



(b)                      establishing procedures for the advocate's office;



(c)                      constituting a committee or committees to advise the advocate on matters affecting children and youths;



(d)                      providing for remuneration of members of any advisory committee established by regulation;



(e)                      proscribing conduct pursuant to section16 of this Act; and



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



Commencement

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

 

Amendment : Section 18

Strike out section 18 and substitute the following:

18 This Act comes into force on April 1, 2005.


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