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1997 Legislative Session: 2nd Session, 36th Parliament

FIRST READING

The following electronic version is for informational purposes only.

The printed version remains the official version.

HONOURABLE UJJAL DOSANJH

ATTORNEY GENERAL AND

MINISTER RESPONSIBLE FOR

MULTICULTURALISM,

HUMAN RIGHTS AND

IMMIGRATION

BILL 23 – 1997

CHILDREN'S COMMISSION ACT

Contents

Section

Part 1 –

Interpretation

Definitions

Part 2 – The Commission, its Guiding Principles and Jurisdiction

Commission established

Guiding principles

Commission's jurisdiction

Powers relating to investigations

Commission's access to information

Opportunity to make representations

Informing parents and others about outcome of investigations into deaths andcritical injuries

Annual and special reports

Part 3 – Resolution of Complaints

Making a complaint

Refusal and deferral of complaints

Notice of complaints

Settlement, referral or dismissal of complaints

Tribunal division

Conduct of review

Orders and recommendations

If adequate steps are not taken to comply with an order

Part 4 – Administrative and General Provisions

Remuneration of Children's Commissioner

Staff and consultants

Roster of panel members

Resignation, suspension or removal of Children's Commissioner

Financial administration

Power to delegate

Confidentiality of information

Protection from libel and slander actions

Protection from other legal actions

No reprisals against complainants and others

Offences

Power to make regulations

30-36

Consequential Amendments

Commencement

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province

of British Columbia, enacts as follows:

Part 1 –

Interpretation

Definitions

1 In this Act:

"authority" means a ministry or agency of the government and includes members

and employees of the authority;

"child" means a person under 19 years of age;

"child in care" has the same meaning as in the

Child, Family and Community Service Act ;

"commission" means the Children's Commission established under

section 2;

"Children's Commissioner" means a person appointed under

section 2 (3) as the

Children's Commissioner or under

section 21 (3) as the Acting Children's

Commissioner;

"continuing custody" means custody under

(

a) an order under the Child, Family and Community Service Act placing a child

in the continuing custody of the director, or

(

b) a permanent order made under the Family and Child

Service Act ;

"critical injury" means an injury to a child that may

(

a) result in the child's death, or

(

b) cause serious or permanent impairment of the child's physical health;

"designated service" means a service or program that is designated under

section 29

(2) (a);

"director" means a director designated under the

Child, Family and Community Service Act or the Adoption Act ;

"guardian" means a guardian of the person of a child;

"multi-disciplinary team of advisors" means a team established under

section 29 (2) (c);

"panel" means a panel the members of which are designated under

section 14 to

review a complaint referred to the tribunal division;

"parent" has the same meaning as in the Child, Family and Community Service Act ;

"rights" means the rights given to children in care by

section 70 of the Child, Family

and Community Service Act ;

"tribunal division" means the tribunal division of the commission.

Part 2 – The Commission, its Guiding Principles and

Jurisdiction

Commission established

(1) The Children's Commission is established to perform the duties and exercise the

powers given to it under this Act.

(2) The commission consists of the Children's Commissioner and any deputy

commissioners appointed under

section 19, and includes the tribunal division.

(3) The Lieutenant Governor in Council must appoint a Children's Commissioner, as

the chief executive officer of the commission, to direct the work of the

commission and its staff.

(4) Subject to

section 21, the Children's Commissioner holds office for a term of

6 years, beginning on the date specified by the Lieutenant Governor in Council,

and is eligible for reappointment.

Guiding principles

3 In investigating children's deaths and critical injuries, setting standards under

section 4 (1) (d), making reports and providing public education and information

under this Act, the commission should take the following principles into account:

(

a) the need of children for services that are

(

i) geographically accessible,

(ii) community-based,

(iii) coordinated and integrated,

(iv) inclusive of gender, culture and language, and

(

v) responsive to individual needs;

(

b) the importance of the child's best interests;

(

c) the importance of treating children and their families with dignity, respect

and fairness;

(

d) the importance of providing children and their families with opportunities

to participate in making decisions that affect them;

(

e) the importance of giving children, their families and communities opportunities to participate in defining, planning and evaluating services to

children;

(

f) the need to provide services to children in a consistent and timely manner;

(

g) the importance of cultural and kinship ties in a child's development;

(

h) the value to children and their families of a supportive community;

(

i) the responsibility shared by government, families and communities for the

protection of children from abuse and neglect.

Commission's jurisdiction

(1) The commission may do any or all of the following:

(

a) collect information about the deaths of all children and investigate the death

of any child if the commission considers an investigation is necessary to

determine the adequacy of services to the child or to examine public health

and policy matters;

(

b) collect information about critical injuries sustained by children while they

are receiving designated services and investigate those injuries;

(

c) make recommendations concerning any deaths or critical injuries investigated under paragraph (

a) or (

b) if the commission considers this will

enhance the safety and protection of other children;

(

d) set standards to be applied by prescribed ministries or agencies of the

government to help ensure that their internal review processes are

responsive to complaints about decisions concerning the provision of

designated services to children;

(

e) monitor whether ministries and agencies referred to in paragraph (

d) are

meeting the standards set under that paragraph;

(

f) review and resolve complaints made under

section 10 about

(

i) breaches of the rights of children in care, and

(ii) decisions concerning the provision of designated services to children;

(

g) in relation to plans of care for children in the continuing custody of a

director,

(

i) monitor whether the standards set by the director for those plans are

being met,

(ii) identify any of those plans that, in the commission's opinion, need to

be reviewed by the director, and

(iii) conduct random audits of those plans;

(

h) at the request of a minister of the government or on the commissioner's own

initiative, conduct special investigations and prepare special reports

concerning matters affecting children;

(

i) collect data about, and conduct or encourage research into, matters relevant

to services for children;

(

j) provide public education and information designed to promote an understanding of, and to invite public comment on, the commission's work.

(2) The commission may defer an investigation into a matter referred to in

subsection (1) (

a) or (

b) until an investigation or proceeding, under another

enactment of British Columbia or the law of another jurisdiction, is completed.

Powers relating to investigations

(1) In an investigation or review under this Act, the Children's Commissioner, each

deputy commissioner and each member of a panel has the powers, privileges and

protections given under sections 12, 15 and 16 of the Inquiry Act to a commissioner appointed under

Part 2 of that Act.

(2) In an investigation or review under this Act, the Children's Commissioner and

each deputy commissioner may consult with any person, including a multi-disciplinary team of advisors.

Commission's access to information

(1) The commission has the right to any information that

(

a) is in the custody or control of a director or of a

public body as defined in the Freedom of Information and Protection of Privacy

Act , and

(

b) is necessary to enable the commission to perform its duties or exercise its

powers under this Act,

except information that could reasonably be expected to reveal the identity of a

person who has made a report under

section 14 of the Child, Family and

Community Service Act.

(2) A director or public body that has custody or control of information to which the

commission is entitled under this

section must disclose that information to the

commission at the request of the Children's Commissioner.

(3) This

section applies despite any other enactment, but is subject to a claim of

confidentiality based on a solicitor-client relationship.

Opportunity to make representations

7 If it appears to the commission that there may be grounds for making a report or

recommendation under

section 8 or 9 that could directly affect an authority or person,

the commission must, before preparing the final report or making the recommendation,

(

a) inform that authority or person of the grounds, and

(

b) give the authority or person an opportunity to make representations.

Informing parents and others about outcome

of investigations into deaths and critical injuries

8 After completing an investigation into a child's death or critical injuries, the

commission may report its findings and recommendations to the following:

(

a) the parent;

(

b) the guardian, if the parent was not the guardian when the child died or

sustained the injuries;

(

c) any director caring for the child;

(

d) the ministry, agency or person that is the subject of the recommendations;

(

e) the child, if the investigation was into injuries sustained by a child who was

12 or more years of age when the investigation was completed.

Annual and special reports

(1) The Children's Commissioner must present the following to the minister:

(

a) an annual report on the work of the commission;

(

b) reports or summaries of reports made by the commission on

(

i) the commission's findings and recommendations under

section 4 (1)

(

a) to (

c) concerning children's deaths or critical injuries, and

(ii) any responses made by ministries or agencies;

(

c) any report prepared for the minister under

section 4 (1) (

h) or presented to

another minister under

section 4 (1) (

h) or 17.

(2) In addition, the Children's Commissioner may present a special report to the

minister or comment publicly about a matter relating generally to the work of the

commission, if the Children's Commissioner considers it necessary to do so.

(3) A report or

summary under subsection (1) or (2) may include recommendations

respecting

(

a) measures to reflect the principles listed in

section 3, and

(

b) amendments to legislation affecting children.

(4) An annual report presented to the minister under subsection (1) (

a) must be laid

before the Legislative Assembly as soon as practicable.

(5) A report or

summary presented to the minister under subsection (1) (

b) or (

c) must be made public within 30 days after the presentation date.

Part 3 – Resolution of Complaints

Making a complaint

(1) A person referred to in subsection (2) may make a complaint to the commission

(

a) about a breach of the rights of a child in care, or

(

b) subject to the regulations and any enactment respecting appeals, about a

decision concerning the provision of a designated service to a specific child.

(2) The complaint may be made by any of the following:

(

a) the child;

(

b) the child's parent;

(

c) any other person representing the child;

(

d) the Child, Youth and Family Advocate.

Refusal and deferral of complaints

(1) The commission must refuse to accept a complaint made under

section 10 if, in

the commission's opinion,

(

a) an internal review process of a ministry or agency is available to deal with

the complaint and that process has not been exhausted,

(

b) an investigation, dispute resolution process or proceeding relating to the

subject matter of the complaint is in progress under another law or a

decision has been given by a court or other tribunal in such a proceeding,

(

c) the complaint is not about a breach of the rights of a child in care or about

a decision referred to in

section 10 (1) (

b) or is for any other reason not

within the commission's jurisdiction,

(

d) the complaint is not made within the prescribed time limit, or

(

e) the subject matter of the complaint is trivial or the complaint is made in bad

faith.

(2) Instead of refusing to accept a complaint under subsection (1) (b), the

commission may defer investigating the complaint until the other investigation,

dispute resolution process or proceeding is completed.

Notice of complaints

12 After a complaint is accepted, the commission must notify the following of the

complaint:

(

a) if the complaint is about a breach of the rights of a child in care,

(

i) the director caring for the child, and

(ii) the child, if he or she is 12 or more years of age and is not the

complainant;

(

b) if the complaint is about a decision concerning a designated service,

(

i) the person in charge of administering the designated service, and

(ii) the person directly affected by the decision, if he or she is not the

complainant.

Settlement, referral or dismissal of complaints

(1) The commission may review the complaint and may attempt to settle it by any

process the commission considers appropriate, including by using, or by referring

the complaint to, an alternate dispute resolution process.

(2) If the complaint is not settled under subsection (1), the Children's Commissioner

must either

(

a) refer the complaint to the tribunal division for review, or

(

b) dismiss the complaint.

Tribunal division

(1) The Children's Commissioner is the chair of the tribunal division and may, for

each complaint referred to the tribunal division, do one or more of the following:

(

a) designate as members of the panel to review the complaint up to 3 persons

appointed under

section 20;

(

b) chair a panel consisting of members designated under paragraph (

a) or

designate one of those members as the chair;

(

c) sit alone as a panel to review the complaint.

(2) A panel has the power and authority of the commission in relation to complaints

assigned by the Children's Commissioner to the panel.

Conduct of review

(1) Subject to the regulations, the panel may determine how a review of a complaint

will be conducted, including whether

(

a) representations to the panel are to be made to it in person, in writing, by

conference call or by any other means, and

(

b) any aspect of the review is to be referred to an alternate dispute resolution

process.

(2) The panel may terminate the review of a complaint if the complaint is settled to

the satisfaction of the Children's Commissioner.

Orders and recommendations

(1) If a panel determines after reviewing a complaint made under

section 10 (1) (

a) that the rights of a child in care have been breached, the panel may do one or more

of the following:

(

a) order the director caring for the child to ensure that the breach does not

continue;

(

b) make recommendations to the director about the steps that director might

take to achieve that result;

(

c) request the director to

(

i) notify the Children's Commissioner of the steps taken by the director

to comply with the order under paragraph (a), and

(ii) give reasons if that director decides not to take any steps or not to

follow the panel's recommendations.

(2) If an order is made under subsection (1) (a), the director caring for the child must

promptly perform any duty or use any power or function of that director under the

Child, Family and Community Service Act or the Adoption Act to ensure the

breach of the child's rights does not continue.

(3) If a panel determines after reviewing a complaint made under

section 10 (1) (

b) that the complaint is justified, the panel may do one or more of the following:

(

a) order the person in charge of administering the designated service to

reconsider the decision that was the subject of the complaint;

(

b) make recommendations about the steps that might be taken to resolve the

complaint;

(

c) request the person referred to in paragraph (

a) to

(

i) notify the Children's Commissioner of any steps taken to resolve the

complaint, and

(ii) give reasons if that person decides not to take any steps or decides not

to follow the panel's recommendations.

(4) After considering a response to a request under subsection (1) (

c) or (3) (c), a

panel may modify any recommendations it made under subsection (1) (

b) or (3) (b).

(5) An order or recommendation made by a panel under this

section is an order or

recommendation of the commission.

(6) The commission must send a copy of an order made under this

section and any

related recommendations to the following:

(

a) the minister responsible for the administration of

the Child, Family and Community Service Act , if the order relates to

a complaint about the rights of a child in care of a director designated under

that Act;

(

b) the minister responsible for the administration of

the Adoption Act , if the order relates to a complaint about the rights

of a child in care of a director designated under that Act;

(

c) the minister responsible for the designated service, if the order relates to a

complaint about a designated service.

If adequate steps are not taken to comply with an order

(1) After considering any reasons given in response to a request under

section 16

(1) (

c) or (3) (c), the Children's Commissioner may take action under this

section

(

a) no steps are taken in response to the order made under

section 16 (1) (

a) or (3) (a), or

(

b) the steps taken are not, in the Children's Commissioner's opinion, adequate

or appropriate.

(2) In the circumstances set out in subsection (1), the Children's Commissioner may

(

a) present a report of the matter to the appropriate minister, and

(

b) make the report public within 30 days after it was presented to the minister.

(3) The Children's Commissioner must attach to a report under this

section a copy of

(

a) the order and any recommendations made under

section 16 (1) (

b) or (3) (b),

and

(

b) the response, including any reasons, made to a request under

section 16

(1) (

c) or (3) (c).

Part 4 – Administrative And General Provisions

Remuneration of Children's Commissioner

(1) The Lieutenant Governor in Council may set

(

a) the Children's Commissioner's remuneration at a level that equals or

exceeds the amount paid to a deputy minister, and

employment.

(2) The Pension (Public Service) Act applies to the Children's Commissioner as an

employee.

(3) The Children's Commissioner has the status of a deputy

minister for the purposes of the Public Service Act .

Staff and consultants

(1) The Children's Commissioner may appoint any of the following and define their

duties:

(

a) one or more deputy commissioners;

(

b) other employees necessary to enable the commission to perform its work.

(2) The Public Service Act applies to appointments under subsection (1).

(3) The Children's Commissioner may retain specialists or consultants necessary to

enable the commission to perform its work.

(4) The Public Service Act does not apply to persons retained under subsection

(3) and the Children's Commissioner may set their remuneration and the other terms

and conditions of their retainers.

Roster of panel members

(1) The minister may appoint persons who

(

a) meet the criteria prescribed under

section 29 (2) (h), and

(

b) may be designated by the Children's Commissioner under

section 14 as

panel members.

(2) The Public Service Act does not apply to persons appointed under subsection

(1) their appointment.

Resignation, suspension or removal of Children's Commissioner

(1) The Children's Commissioner may resign at any time by notifying the minister.

(2) The Lieutenant Governor in Council may, for cause or incapacity,

(

a) suspend the Children's Commissioner, with or without remuneration, from

performing the duties of the office, or

(

b) remove the Children's Commissioner from office.

(3) If the Children's Commissioner is suspended, absent or unable to act or the office

is vacant, the Lieutenant Governor in Council may appoint a deputy commissioner or another member of the commission's staff as Acting Children's

Commissioner.

Financial administration

22 The Financial Administration Act applies to the commission as though the

commission were a division of the ministry administered by the minister.

Power to delegate

(1) The Children's Commissioner may delegate to any person appointed or retained

under

section 19 any power, duty or function of the commission or the Children's

Commissioner under this Act, except the power

(

a) to delegate under this section, and

(

b) to present a report under

section 9 or 17.

(2) A delegation under this

section must be in writing and may include any terms,

conditions or restrictions.

Confidentiality of information

(1) The Children's Commissioner, a person appointed or retained under

section 19 or

a member or former member of a panel or of a multi-disciplinary team of advisors

must not, except in a judicial review of a decision under this Act or in a

proceeding relating to an offence under this Act,

(

a) give evidence, or

(

b) be required to give evidence or to produce records

relating to information obtained with respect to an investigation or complaint

under this Act.

(2) The persons referred to in subsection (1) must, subject to this Act and

section 75 (

c) of the Child, Family and Community Service Act, maintain confidentiality about all matters that come to their knowledge in carrying out their

duties, powers and functions under this Act.

Protection from libel and slander actions

25 Anything said, any information supplied or any record produced during

(

a) an investigation or review by the Children's Commissioner, a person

appointed or retained under

section 19 or a member of a panel, or

(

b) consultation with a member of a multi-disciplinary team of advisors

is privileged as if the investigation, review or consultation were a proceeding before a

court.

Protection from other legal actions

26 No action lies and no proceeding may be brought against

(

a) the Children's Commissioner,

(

b) a person appointed or retained under

section 19, or

(

c) a member or former member of a panel or of a multi-disciplinary team of

advisors

for damages for anything done or omitted in good faith in the exercise or performance,

or intended exercise or performance, of a duty, power or function under this Act.

No reprisals against complainants and others

(1) A person must not discharge, suspend, expel, intimidate, coerce, discipline or

impose a financial or other penalty on or otherwise discriminate against a child

because the child

(

a) makes, or is the subject of, a complaint under this Act, or

(

b) gives information or otherwise assists in an investigation, review or other

proceeding under this Act.

(2) A person must not discharge, suspend, expel, intimidate, coerce or impose a

financial or other penalty on or otherwise discriminate against a person who is not

a child because the person

(

a) makes a complaint under this Act, or

(

b) gives information or otherwise assists in an investigation, review or other

proceeding under this Act.

Offences

(1) A person who does any of the following commits an offence:

(

a) without lawful excuse, impedes or obstructs the Children's Commissioner

or another person in performing duties or exercising powers or functions

given under this Act;

(

b) provides false or misleading information when required under this Act to

provide information;

(

c) contravenes

section 27 (1) or (2).

(2) A person is not guilty of an offence under subsection (1) (

b) if, at the time the

information was provided, the person did not know that it was false or misleading

and, with the exercise of reasonable diligence, could not have known that it was

false or misleading.

(3) Section 5 of the Offence Act does not apply to this Act.

Power to make regulations

(1) The Lieutenant Governor in Council may make

regulations referred to in

section 41 of the

Interpretation Act .

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make

regulations as follows:

(

a) designating, for the purposes of any provision of this Act, a service or

program that is

(

i) provided, authorized or funded under

an Act,

(ii) provided by a ministry or agency of the government, or

(iii) provided in a facility or class of facility licensed or regulated under

an Act;

(

b) prescribing ministries and agencies of government for the purposes of

section 4 (1) (

d) and (e);

(

c) establishing advisory committees, including multi-disciplinary teams of

advisors, and governing their functions and duties and the information that

may be disclosed to them under this Act;

(

d) prescribing time limits for the purposes of complaints and other

proceedings under this Act;

(

e) specifying types of decisions that may be the subject of a complaint under

section 10 (1) (b);

(

f) governing the review of complaints, including the circumstances in which

the commission may terminate the investigation or review of a complaint;

(

g) respecting the criteria for the appointment of persons who may be

designated under

section 14 as panel members;

(

h) respecting evidence and procedure in proceedings before a panel;

(

i) respecting any matters necessary for the orderly transition from the

application of the Child, Family and Community Service Act in respect of

reviews of complaints and any other matters begun before the Child and

Family Review Board to the application of this Act in respect of those

reviews and other matters;

(

j) respecting the security and retention of personal information that is in the

custody or control of the commission;

(

k) defining any word or expression used but not defined in this Act.

(3) In making regulations under subsection (2) (a), the Lieutenant Governor in

Council may designate different services or programs for the purposes of

different provisions of this Act.

Consequential Amendments

Child, Family and Community Service Act

Section 1 of the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46, is

amended

(

a) by repealing the definition of "board", and

(

b) by repealing the definition of "director" and substituting the following:

"director" means a person designated by the minister under

section 91; .

Section 75 is amended by repealing paragraph (

c) and substituting the following:

(

c) in a report under

section 8 or 9 of the Children's

Commission Act , but only to the extent necessary to establish grounds for

findings or recommendations contained in that report.

32 Sections 79 (g), 83 to 88 and 103 (2) (

i) to (

l) are repealed.

Child, Youth and Family Advocacy Act

Section 1 of the Child, Youth and Family Advocacy Act, R.S.B.C. 1996, c. 47, is amended

by adding the following definition:

"director" means a director designated under the Child, Family and Community

Service Act or the Adoption Act ; .

Section 7 is amended

(

a) by repealing subsection (1) and substituting the following:

(1) The advocate has the right to any information that

(

a) is in the custody or control of a director or of a public body as defined in the

Freedom of Information and Protection of Privacy Act, and

(

b) is necessary to enable the advocate to perform duties or exercise powers or

functions to the advocate given under this Act,

except information that could reasonably be expected to

reveal the identity of a person who has made a report under

section 14 of the

Child, Family and Community Service Act . , and

(

b) in subsection (2) by striking out "a public body" and

substituting "A director or public body" .

Freedom of Information and Protection of Privacy Act

Section 3 (1) of the Freedom of Information and Protection of Privacy Act, R.S.B.C.

1996, c. 165, is amended by adding the following paragraph:

(c.1) a record that is created by or for, or is in the custody or control of, the Children's

Commission and that relates to the exercise of the commission's functions under

the Children's Commission Act; .

Schedule 1 is amended in the definition of "officer

of the Legislature" by adding "the Child, Youth and Family Advocate,"

after "the Auditor General," .

Commencement

37 This Act comes into force by regulation of the Lieutenant Governor in Council.

Explanatory Note

[Sections 30 to 36 of this Bill amend the Revised Statutes

of British Columbia, 1996. The Revised Statutes of British Columbia, 1996 came

into force on April 21, 1997.]

This Bill establishes the Children's Commission and gives the Children's Commission the

following powers:

to monitor the development and implementation of internal review processes

across ministries and agencies of government to ensure they are respectful,

timely, effective and child centered;

to provide a comprehensive avenue for external complaints for children to ensure

to ensure all children in care have a plan that meets their needs;

to investigate critical injuries that occur when children are receiving designated

services;

to review all child fatalities and investigating any that are suspicious and unusual

through an investigation and multi-disciplinary process;

to report on the progress made by the child serving system in implementing

change as recommended in any or all parts of the Children's Commission's

mandate to better protect children.

Copyright © 1997: Queen's Printer, Victoria, British Columbia, Canada