SNL2001 CHAPTER C-12.01 - CHILD AND YOUTH ADVOCATE ACT

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; 2017 c27 s1; 2018 cC-12.3 116; 2019 c8 s4; 2019 cP-44.01 s32; 2022 c18; 2022 cP-30.1 s42 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. 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 16.1 Report to advocate required 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 Back to Top 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 Children, Youth and Families 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 ; 2018 cC-12.3 s116 Back to Top 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 Back to Top 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 Back to Top 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 Back to Top Term of office 6. (1) Unless the advocate sooner resigns, dies or is removed from office, the advocate shall hold office for 6 years from the date of appointment and may be reappointed 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 ; 2022 c18 s1 Back to Top 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 Back to Top 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 Back to Top 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 the advocate’s 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) [Rep. by 2022 c18 s2] (3) An acting advocate holds office until (a) the advocate returns to the advocate’s 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 ; 2022 c18 s2 Back to Top 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, 2019 where the advocate was subject to that Act before the appointment as advocate. (4) Where the advocate was not subject to the Public Service Pensions Act, 2019 before appointment as advocate, the advocate shall be paid, for contribution to a registered retirement savings plan, an amount equivalent to the amount which the advocate 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 ; 2019 cP-44.01 s32 ; 2022 c18 s3 Back to Top Expenses 10. The advocate shall be paid the travelling and other expenses incurred in the performance of the advocate’s duties that may be approved by the House of Assembly Management Commission . 2001 cC-12.01 s10 ; 2007 cH-10.1 s70 ; 2022 c18 s4 Back to Top 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 the advocate to carry out the advocate’s 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 ; 2022 c18 s5 Back to Top Oath of office 12. (1) Before beginning to perform the advocate's 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 to faithfully and impartially perform the duties of the advocate's office. (2) Every person employed under the advocate shall, before beginning to perform the person's duties, swear an oath, or affirm, before the advocate to not, except as provided by this Act, divulge information received under this Act. 2001 cC-12.01 s12 ; 2008 c30 s3 ; 2022 c18 s6 Back to Top Confidentiality of information 13. (1) The advocate and every person employed under the advocate 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 under this Act those matters the advocate considers it necessary to disclose in order to establish grounds for the advocate’s 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 ; 2022 c18 s7 Back to Top Delegation 14. (1) The advocate may in writing delegate to another person the advocate’s 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 the person’s authority to exercise that power when required to do so. 2001 cC-12.01 s14 ; 2022 c18 s8 Back to Top Powers and duties of the advocate 15. (1) In carrying out the duties of the advocate’s 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 ; 2022 c18 s9 Back to Top R estriction 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 Back to Top Minister may restrict investigation 15.2 (1) Where the Minister of Justice and Public Safety 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, the advocate 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 the advocate’s next annual report to the House of Assembly. 2008 c30 s5 ; 2019 c8 s4 ; 2022 c18 s10 Back to Top Restriction on jurisdiction 15.3 Nothing in this Act authorizes the advocate or the advocate’s 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 ; 2022 c18 s11 Back to Top 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, 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 to the extent that it is within the advocate's jurisdiction; and (b) make a report to the Lieutenant-Governor in Council or minister that the advocate considers appropriate. 2001 cC-12.01 s16 ; 2022 c18 s12 Back to Top Report to advocate required 16.1 (1) For the purpose of this section, (a) "critical injury" means an injury, including a physical or psychological injury, which may result in the death of a child or youth or may cause serious or long-term impairment of the health of a child or youth; and (b) "designated services" means the following services provided directly to a child or youth: (i) services provided by the Department of Children, Seniors and Social Development under its protective intervention, kinship, in care, youth services and community youth corrections programs, and (ii) services provided by the Department of Justice and Public Safety to children or youth in custody at the Newfoundland and Labrador Youth Centre or a designated youth holding facility or to children or youth temporarily held in adult correction facilities administered by Corrections and Community Services or a successor division of the Department of Justice and Public Safety. (2) Where a child or youth dies or experiences a critical injury while receiving a designated service or within 12 months of receiving a designated service, the deputy minister of a department, or the deputy minister’s designate, shall report the death or critical injury to the advocate. (3) The report required by subsection (2) shall be made as soon as practicable after the deputy minister or the deputy minister’s designate becomes aware of the death or critical injury. (4) An action does not lie against a person for anything the person may do or report or say in the course of the exercise or performance, or the intended exercise or performance, of a duty under this section unless it is shown the person acted in bad faith. 2017 c27 s1 ; 2018 c18 s13 Back to Top 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 the child or youth 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 ; 2022 c18 s14 Back to Top Refusal to investigate or review 18. The advocate, in the advocate's 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 the advocate's 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 the advocate's 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 the advocate's 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 of the remedy, there is no reasonable justification for the person's failure to do so. 2001 cC-12.01 s18 ; 2022 c18 s15 Back to Top Report of refusal to investigate 19. W here the advocate decides not to review or investigate or to cease reviewing or investigating a complaint, the advocate shall inform the complainant, and other interested persons, of the decision and shall provide to them reasons for the decision. 2001 cC-12.01 s19 ; 2022 c18 s16 Back to Top 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 the advocate’s intention to conduct the review or investigation. 2001 cC-12.01 s20 ; 2022 c18 s17 Back to Top E vidence 21. (1) T he advocate may require a person who, in the advocate’s opinion, is able to give information relating to a matter being investigated by the advocate (a) to furnish the information to the advocate; and (b) to produce a document, paper or thing that in the advocate’s 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 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 the advocate. (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 11 of the Children, Youth and Families 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 ; 2018 cC-12.3 s116 ; 2022 c18 s18 Back to Top Restrictions on disclosure 21.1 Where the Minister of Justice and Public Safety 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 ; 2019 c8 s4 Back to Top 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 Back to Top 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 Back to Top Defence for certain offences 22. A person is not guilty of an offence against another Act by reason of the person’s 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 ; 2022 c18 s19 Back to Top 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 the advocate’s 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 ; 2022 c18 s20 Back to Top 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, the advocate may request the department or agency of the government to whom the recommendation is made to notify the advocate within a specified time of the steps that it has taken or proposes to take to give effect to the advocate’s 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 the advocate’s 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 ; 2022 c18 s21 Back to Top Report to complainant 25. Where the advocate conducts a review or an investigation on the basis of a complaint received, the advocate shall report to the complainant, in the manner and at the time that the advocate considers appropriate, the result of the investigation. 2001 cC-12.01 s25 ; 2022 c18 s22 Back to Top Proceedings against advocate prohibited 26. An action does not lie against the advocate or against a person employed under the advocate for anything the advocate or person may do or report or say in the course of the exercise or performance, or intended exercise or performance, of the advocate’s or person’s functions and duties under this Act, unless it is shown the advocate or person acted in bad faith. 2001 cC-12.01 s26 ; 2022 c18 s23 Back to Top Advocate not to be called as witness 27. The advocate and a person employed under the advocate shall not be called to give evidence in a court or in a proceeding of a judicial nature in respect of anything coming to the advocate’s or person’s knowledge in the exercise or performance of the advocate’s or person’s functions and duties under this Act. 2001 cC-12.01 s27 ; 2022 c18 s24 Back to Top 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 the advocate’s functions and duties under this Act. 2001 cC-12.01 s28 ; 2022 c18 s25 Back to Top 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 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 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 under subsection (1) unless the advocate has first obtained the consent of the child or youth and the child’s or youth’s parent or guardian. 2001 cC-12.01 s29 ; 2022 c18 s26 Back to Top 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 the advocate’s 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 the advocate’s procedure. 2001 cC-12.01 s30 ; 2007 cH-10.1 s70 ; 2022 c18 s27 Back to Top Offence and penalty 31. A person who (a) obstructs, hinders, or resists the advocate or another person in the exercise or performance of the advocate’s or person’s 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 the advocate’s or person’s 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 ; 2022 c18 s28 Back to Top 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 Back to Top 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 Back to Top 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 Back to Top Schedule Criminal Code Mental Disorder Review Board (section 672.38 Criminal Code) The Provincial Health Authority established under the Provincial Health Authority 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 ; 2022 cP-30.1 s42