Third

Session, 47th General Assembly

Elizabeth II, 2014

BILL 36

AN ACT RESPECTING

MISSING PERSONS

Received and Read the First Time .................................................................................................

Second Reading .................................................................................................................................

Committee ..........................................................................................................................................

Third Reading .....................................................................................................................................

Royal Assent ......................................................................................................................................

HONOURABLE

DARIN T. KING

Government House Leader

Ordered

to be printed by the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would allow members of the Royal

Newfoundland Constabulary and the Royal Canadian Mounted Police

to access records about a

missing person that may assist them in locating the missing person; and

to enter a dwelling or other

premises to search for a missing minor or vulnerable person.

A BILL

AN ACT RESPECTING MISSING PERSONS

Analysis

Short title

Definitions

Crown bound

Labrador Inuit rights

Application

Record access order

Search order

Application by telecommunication

Court records

Emergency demand for records

Failure to comply with demand

Use of information

Restrictions on disclosure of information

Consistent purpose

No access to privileged information

Rights unaffected

Offences

Protection from liability

Regulations

Review

Commencement

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

Short title

1. This

Act may be cited as the Missing Persons

Act .

Definitions

2. In

this Act

(a) "custodian" means a custodian as

defined in the Personal Health Information

Act ;

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

(c) "missing person" means

(

i) an individual whose whereabouts are unknown

and who has not been in contact with those persons who would likely be in

contact with the individual, or

(ii) an individual

(

A) whose whereabouts are unknown despite reasonable

efforts to locate the individual, and

(

B) whose safety and welfare are feared for given

the individual's physical or mental capabilities or the circumstances

surrounding the individual's absence;

(d) "person", except when used to refer

to a missing person or a vulnerable person, includes a partnership, custodian,

public body, association or other organization;

(e) "personal health information" means personal

health information as defined in the Personal

Health Information Act ;

(f) "police force" means

(

i) the Royal Newfoundland Constabulary, and

(ii) the Royal Canadian Mounted Police;

(g) "public body" means a public body as

defined in the Access to Information and

Protection of Privacy Act ;

(h) "record access order" means an order

made under

section 6;

(i) "search order" means an order made

under

section 7; and

(j) "vulnerable person" means

(

i) an adult in need of protective intervention as

defined in the Adult Protection Act ,

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

Crown bound

3. This

Act binds the Crown.

Labrador Inuit

rights

4. This

Act and the regulations made under this Act shall be read and applied in

conjunction with the Labrador Inuit Land

Claims Agreement Act and, where a provision of this Act or the regulations

made under this Act is inconsistent or conflicts with a provision, term or

condition of the Labrador Inuit Land

Claims Agreement Act , the provision, term or condition of the Labrador Inuit Land Claims Agreement Act

shall have precedence over the provision of this Act or a regulation made under

this Act.

Application

(1) Where

a police force is conducting an investigation into a missing person, a member

of the police force may apply to a judge

for a record access order or search order.

(2) An application under subsection (1) may be

made without notice to another person.

Record access

order

(1) A

member of a police force who has reasonable grounds to believe that a person

has records respecting a missing person may apply to a judge for an order

requiring the person to give members of the police force access to, and if

requested, copies of, the records set out in subsection (2) respecting a

missing person that

(

a) may assist the police force in locating the

missing person; and

(

b) are in the possession or under the control of

the person.

(2) The records that may be accessed under a

record access order include

(

a) records containing contact or identification

information;

(

b) telephone and other electronic communication

records, including

(

i) records related to signals from a wireless

device that may indicate the location of the wireless device,

(ii) cell phone records,

(iii) inbound and outbound text messaging records,

and

(iv) internet browsing history records;

(

c) global positioning system tracking records;

(

d) video records, including closed circuit television

footage;

(

e) records containing employment information;

(

f) records containing personal health

information;

(

g) records from a school, university or other

educational institution containing attendance information;

(

h) records containing travel and accommodation

information;

(

i) records containing financial information; and

(

j) any other records the judge considers

appropriate.

(3) Where the missing person is a minor or a

vulnerable person and there are reasonable grounds to believe that the missing

person may be in the company of another person, the judge may order that

members of the police force be given access to, and if requested, copies of,

the records set out in subsection (2) respecting the person who may be accompanying

the missing person.

(4) The judge may make a record access order if he

or she is satisfied on oath or affirmation that the order may assist the police

force in locating the missing person.

(5) The judge may impose restrictions or limits on

the records to be produced under a record access order that he or she considers appropriate.

(6) The judge may include a provision in a record

access order requiring a person to provide to members of the police force an accounting

of the efforts made by the person to locate any records that cannot be found.

Search order

7. A

judge who is satisfied on oath or affirmation that there are reasonable grounds

to believe that a missing person who is a minor or a vulnerable person may be

in a dwelling or other premises may make an order authorizing members of a

police force to enter, by force if necessary, the dwelling or other premises

and search for the missing person.

Application by

telecommunication

(1) Where,

in the opinion of a member of the police force, it would not be practical to personally

appear before a judge to apply for a record access order or a search order, the

application may be made by telephone, facsimile or other means of

telecommunication.

(2) Where the information on which an application

for a record access order or a search order is submitted by telephone,

facsimile or other means of telecommunication, the information shall be given under

oath or affirmation, and the oath or affirmation may be administered by

telephone, facsimile or other means of telecommunication.

(3) The information submitted by telephone,

facsimile or other means of telecommunication shall include

(

a) a statement of the circumstances that make it

impracticable for the member of the police force to appear personally before a

judge; and

(

b) a statement of the grounds for believing that

(

i) the requested records may assist the police

force in locating a missing person, or

(ii) a missing person who is a minor or a vulnerable

person may be in a dwelling or other premises.

(4) The sworn or affirmed information submitted by

telephone, facsimile or other means of telecommunication shall specify the name

of the person giving evidence, the facts ascertained and the manner and

location in which evidence was received, and a record of that information shall

be filed by the judge with a clerk of the court over which the judge presides.

Court records

9. Where a judge is satisfied that public access

to the court records relating to a record access order or a search order would

interfere with the investigation into a missing person he or she may order that

the court records, or any part of them, be sealed and kept in a location to

which the public has no access.

Emergency demand

for records

(1) Notwithstanding

section 6, if there are reasonable grounds to believe that immediate access to

records is necessary to prevent imminent bodily harm to or the death of a

missing person, a member of a police force may serve a written demand on any

person requiring that person to give members of the police force access to

those records that are in the person's possession or under the person's

control.

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

under this

section include

(

a) records containing contact or identification

information;

(

b) telephone and other electronic communication

records, including

(

i) records related to signals from a wireless

device that may indicate the location of the wireless device,

(ii) cell phone records,

(iii) inbound and outbound text messaging records,

and

(iv) internet browsing history records;

(

c) global positioning system tracking records;

(

d) video records, including closed circuit television

footage;

(

e) records containing employment information to

the extent that the records might indicate when the missing person was last

seen or heard from and when, where and how the missing person is paid;

(

f) records containing personal health information

to the extent that the records might indicate if the missing person has been

recently admitted to a hospital and, if the records do so indicate, which

hospital and the date and time of, and the reason for, admission;

(

g) records from a school, university or other educational

institution containing attendance information;

(

h) records containing travel and accommodation

information;

(

i) records containing financial information to

the extent that the records might indicate

(

i) if one or more of the missing person's credit

cards were recently used and, if the records do so indicate, when, where and

for what purpose the credit cards were used, or

(ii) if one or more of the missing person's bank

accounts were recently accessed and, if the records so indicate, when, from where

and for what purpose the bank accounts were accessed; and

(

j) any other records prescribed in the

regulations.

(3) A person who is served with a demand under this

section shall give members of the police force access to, and if requested, copies

of, the records within the time specified in the demand.

(4) When a member of a police force serves a

demand under this section, he or she shall file a written report with his or

her commanding officer that sets out the circumstances in which the demand was

made.

(5) A police force shall prepare an annual report

respecting its use of demands under this section, and shall file it with the

Minister of Justice and Public Safety who shall make the report available to

the public.

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

include

(

a) the number of missing person investigations in

which a demand under this

section was made in that year and the total number of

persons who were served with a demand in that year; and

(

b) other information prescribed in the regulations.

Failure to comply

with demand

(1) If

a person who is served with a demand under

section 10 does not comply with the

demand, a member of the police force may apply to a judge for an order

directing the person to comply with the demand.

(2) The judge may make an order requiring the

person to comply with a demand under

section 10 if he or she is satisfied that

(

a) the records demanded are in the possession or

under the control of the person; and

(

b) the making of the order may assist the police

force in locating the missing person.

Use of

information

(1) Notwithstanding

section 38 of the Access to Information

and Protection of Privacy Act , information and records obtained by a police

force under this Act shall be used only for

(

a) the purpose of locating a missing person or a

use consistent with that purpose; or

(

b) a purpose for which the information may be

disclosed under

section 13.

(2) If an investigation into a missing person

becomes a criminal investigation, this

section does not prevent information and

records obtained by a police force under this Act from being used for the purposes

of the criminal investigation.

Restrictions on

disclosure of information

(1) Any

information or records obtained by a police force under this Act are

confidential and shall not be disclosed except in accordance with this section.

(2) Notwithstanding

section 39 of the Access to Information and Protection of

Privacy Act , information and records obtained by a police force under this

Act shall be disclosed only

(

a) for the purpose of locating a missing person

or a use consistent with that purpose;

(

b) when required by law;

(

c) to another law enforcement agency in Canada or

a law enforcement agency in another country under an arrangement, written

agreement, treaty or legislative authority, but only to the extent necessary to

further the investigation into the missing person;

(

d) where the person the information or records

are about has consented to the disclosure; or

(

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

(3) For the purposes of furthering an

investigation into a missing person, a police force may release the following

information obtained under this Act respecting the missing person to the public

through a media release, by posting the information on a website or in another

manner the police force considers appropriate:

(

a) the missing person's name;

(

b) a physical description of the missing person;

(

c) a photograph of the missing person;

(

d) information about any medical conditions of

the missing person that pose a serious or immediate threat to his or her

health;

(

e) pertinent vehicle information;

(

f) the location where the missing person was last

seen; and

(

g) the circumstances surrounding the

disappearance of the missing person.

(4) A police force may publicly announce that a

missing person has been located.

(5) A police force may disclose information and

records obtained under this Act to other law enforcement agencies and government

departments or agencies, to the extent necessary to coordinate investigations

respecting missing persons.

(6) If an investigation into a missing person

becomes a criminal investigation, this

section does not prevent the disclosure

of information and records obtained by a police force under this Act for the purposes

of the criminal investigation.

Consistent

purpose

14. For

the purpose of paragraphs 12(1)(

a) and 13(2)(a), a use of information and

records is consistent with the purpose for which the information and records were

obtained if the use

(

a) has a reasonable and direct connection to that

purpose; and

(

b) is necessary for performing the statutory

duties of, or for operating a program or activity of, the police force.

No access to privileged

information

15. Nothing

in this Act compels the disclosure of any information or records that are

subject to any type of legal privilege.

Rights unaffected

16. Nothing

in this Act affects

(

a) the powers and duties of the Information and Privacy

Commissioner under the Access to

Information and Protection of Privacy Act or the Personal Health Information Act ; or

(

b) the authority that a police force would

otherwise have to collect any information or records.

Offences

17. A

person who contravenes

section 12 or 13 is guilty of an offence and is liable

on

summary conviction to a fine of not more than $10,000.

Protection from

liability

18. An

action does not lie against a person in respect of anything done or omitted to

be done in good faith under this Act.

Regulations

19. The

Lieutenant-Governor in Council may make regulations

(

a) respecting applications for record access

orders and search orders;

(

b) respecting the types of records that may be

accessed under a demand under this Act;

(

c) respecting applications for orders to compel

compliance with a demand under this Act;

(

d) respecting the service of orders and demands

under this Act;

(

e) respecting annual reports under

section 10;

(

f) respecting the collection, use and retention

of information and records obtained under this Act;

(

g) respecting the types of records to be kept and

maintained under this Act;

(

h) defining a word or expression used but not

defined in this Act; and

(

i) generally to give effect to this Act.

Review

20. The

minister shall, every 5 years, perform a review of this Act and the regulations

made under it, the principles upon which it is based and consider the areas in

which they may be improved.

Commencement

21. This Act comes into force on a day to be

proclaimed by the Lieutenant-Governor in Council.

Queen's Printer