First

Session, 46th General Assembly

Elizabeth II, 2008

BILL 33

AN ACT TO AMEND THE

CHILD AND YOUTH ADVOCATE ACT

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

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

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

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

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

HONOURABLE

THOMAS G. RIDEOUT

Government House Leader

Ordered

to be printed by the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would amend the Child and Youth Advocate Act to enhance

the powers of the advocate to conduct an investigation under the Act.

This Bill would also revise the

Schedule to the Act relating to the governmental agencies to which the Act

applies to bring it up to date.

A BILL

AN ACT TO AMEND THE CHILD AND YOUTH ADVOCATE ACT

Analysis

1. S.2 Amdt.

Definitions

S.3 Amdt.

Office of the Child and Youth Advocate established

S.12 Amdt.

Oath of office

S.15 Amdt.

Powers and duties of advocate

Ss.15.1 and 15.2 Added

15.1 Restriction on

jurisdiction

15.2 Mi nister may

restrict investigation

6. S.17 Amdt.

Communication by child or youth

S.21 Amdt.

Evidence

Ss.21.1 to 21.3 Added

21.1 Restrictions on

disclosure

21.2 Application of

certain

rules

21.3 Admissibility

evidence

Sch. R&S

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

SNL2001 cC-12.01

as amended

(1) Subparagraph 2(g)(ii) of the Child and Youth Advocate Act is repealed

and the following substituted:

(ii) on remand under the Criminal Code or the Youth

Criminal Justice Act ( Canada ),

(2) Subparagraph 2(g)(iv) of the Act is repealed

and the following substituted:

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

Section 3 of the Act is amended by striking out

the word "and" at the end of paragraph (

c) and by adding immediately

after paragraph (

c) the following:

(c.1) to review and investigate matters affecting

the rights and interests of children and youth; and

Section 12 of the Act is amended by renumbering

it as subsection 12(1) and adding immediately after subsection (1) the following:

(2) Every

person employed under the advocate shall, before he or she begins to perform

his or her duties, swear an oath, or affirm, before the advocate that he or she

shall not, except as provided by this Act, divulge information received by him

or her under this Act.

4. Paragraph 15(1)(

a) of the Act is repealed and

the following substituted:

(

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;

5. The Act is amended by adding immediately after

section 15 the following:

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; or

(

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.

Minister may restrict investigation

15.2

(1) Where the Minister of Justice certifies in

writing to the advocate that the investigation of a matter would be contrary to

the public interest under the circumstances, the advocate shall not investigate

the matter, or, where the advocate has commenced an investigation of the

matter, he or she shall discontinue the investigation.

(2) Where a

certificate is given under subsection (1), the advocate shall include that fact

and a brief description of the circumstances of the matter in his or her next

annual report to the House of Assembly.

6. (1) Subsection 17(1) of the Act is amended

by striking out the reference to the " Young

Offenders Act " and substituting the reference " Youth Criminal Justice Act ".

(2) Subsection 17(3) of the Act is amended by

striking out the reference to the " Young

Offenders Act " and substituting the reference " Youth Criminal Justice Act ".

7. Subsection 21(1) of the Act is repealed and the

following substituted:

E vidence

(1) T he advocate may require a person who, in his or

her opinion, is able to give information relating to a matter being investigated

by him or her

(

a) to

furnish the information to him or her; and

(

b) to

produce a document, paper or thing that in his or her opinion relates to the

matter being investigated and that may be in the possession or under the

control of the person,

whether or

not the person is an officer, employee or member of a department or an agency

of the government and whether or not the document, paper or thing is in the

custody or under the control of the department or agency of the government.

(1.2) The

advocate may summon before him or her and examine on oath or affirmation a

person who in the opinion of the advocate is able to give information relating

to a matter being investigated by him or her.

(1.3) The advocate has the right to information

respecting children and youth except

(

a) information that could reasonably be expected

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

section 15 of the Child, Youth and Family Services Act ;

and

(

b) information that is not permitted to be made

public by

section 26 of the Adoption of

Children Act .

8. The Act is amended by adding immediately after

section 21 the following:

Restrictions on disclosure

21.1 Where

the Minister of Justice certifies that the giving of information or the

answering of a question or the production of a document, paper or thing might

involve the disclosure of

(

a) the

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

(

b) proceedings

of the Executive Council, or 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.

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.

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.

9. The

Schedule to the Act is repealed and the

following substituted:

Schedule

Criminal Code Mental Disorder Review

Board (section 672.38 Criminal Code)

A regional health authority established

under the Regional Health Authorities Act

Office of the Chief Medical Examiner ( Fatalities Investigations Act )

Mental Health Care and Treatment Review

Board

Newfoundland and Labrador Legal Aid Commission

The Newfoundland & Labrador Housing

Corporation

A board, commission or other body added

to this

Schedule by order of the Lieutenant-Governor in Council

Earl G. Tucker, Queen's Printer