2000 Legislative Session: 4th Session, 36th Parliament
FOR REPORT


The following electronic version is for informational purposes only.
The printed version remains the official version.


Certified correct as amended in Committee of the Whole on the 6th day of July, 2000
Ian D. Izard, Law Clerk


HONOURABLE GRETCHEN BREWIN
MINISTER FOR CHILDREN AND FAMILIES

BILL 25 2000

SECURE CARE ACT

Contents
Section  
1  Definitions
2  Purpose
3  Best interests of child
4  Application for secure care certificate
5  Date for hearing the application
6  Notice of application
7  Information about counsel and advocacy
8  Issue of secure care certificate
9  If the child does not attend
10  Information about secure care certificate and facility
11  Detainment without a certificate
12  Authority given by certificate
13  Warrant to enter private premises
14  Criteria to be considered in making placement decisions
15  Assessment of child and preparation of intervention and assistance plan
16  Health care consent
17  Rights of children detained in secure care facilities
18  Unauthorized absences
19  Renewal of certificate
20  Review of decision concerning issue or renewal of certificate
21  Secure Care Board
22  Jurisdiction of the board
23  Panels and procedure
24  Inquiry Act powers
25  Child's right to be represented and to participate in proceedings
26  Board may vary notice requirements
27  Evidence of board members
28  Annual report
29  Designation of director of secure care
30  Power to delegate
31  Other powers and duties of director of secure care
32  No reprisals because of review
33  Director's right to information
34  Definition for purposes of sections 35 to 42
35  Freedom of Information and Protection of Privacy Act
36  Confidentiality of information
37  Right of access and right to consent to disclosure
38  Exceptions to access rights
39  Disclosure with consent
40  Disclosure without consent
41  Accuracy, protection and retention of information
42  Review by Information and Privacy Commissioner
43  Protection from liability
44  Offences and penalties
45  Power to make regulations
46-49  Consequential Amendments
50  Commencement

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

Definitions

1 In this Act:

"aboriginal child" means a child

(a) who is registered under the Indian Act (Canada),

(b) who has a biological parent who is registered under the Indian Act (Canada),

(c) who is a Nisga'a child,

(d) who is under 12 years of age and has a biological parent who

(i) is of aboriginal ancestry, and

(ii) considers himself or herself to be aboriginal, or

(e) who is 12 years of age or over, of aboriginal ancestry and considers himself or herself to be aboriginal;

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

"board" means the Secure Care Board established in section 21;

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

"Child, Youth and Family Advocate" means the Child, Youth and Family Advocate appointed under the Child, Youth and Family Advocacy Act;

"Children's Commissioner" means the Children's Commissioner appointed under the Children's Commission Act;

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

"director of adoption" means the person designated under the Adoption Act as director of adoption;

"director of secure care" means a person who is designated under section 29 as a director of secure care;

"director under the Child, Family and Community Service Act" means a person who is designated under section 91 of that Act;

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

"Nisga'a child" has the same meaning as in the Nisga'a Final Agreement;

"Nisga'a Final Agreement" has the same meaning as in the Nisga'a Final Agreement Act;

"Nisga'a Lisims Government" has the same meaning as in the Nisga'a Final Agreement;

"parent" means

(a) the mother of a child,

(b) the father of a child,

(c) a person to whom custody of a child has been granted by a court of competent jurisdiction or by an agreement, or

(d) a person with whom a child resides and who stands in place of the child's mother or father,

but does not include a caregiver as defined in the Child, Family and Community Service Act, a director under that Act or the director of adoption;

"police officer" means a person who

(a) under the Police Act is a provincial constable or municipal constable or has the powers of a provincial constable or municipal constable, or

(b) is a member of the military police of the Canadian Armed Forces;

"private premises" includes a dwelling as defined in the Child, Family and Community Service Act;

"secure care certificate" means a certificate issued under section 8;

"secure care facility" means a facility designated under section 31 (1) (b).

Purpose

2 (1) The purpose of this Act is to provide, when other less intrusive measures are unavailable or inadequate, a means for assessing and assisting children who

(a) have an emotional or behavioural condition that presents a high risk of serious harm or injury to themselves, and

(b) are unable or unwilling to take steps to reduce that risk.

(2) For the purpose of this Act, an emotional or behavioural condition these conditions may be demonstrated by, among other things,

(a) severe substance misuse or addiction, or

(b) the sexual exploitation of the child.

Best interests of child

3 (1) Where there is a reference in this Act to the best interests of a child, all relevant factors must be considered in determining the child's best interests, including, for example,

(a) the child's safety,

(b) the child's present and future well-being,

(c) the child's physical and emotional needs and level of development,

(d) the child's cultural, racial, linguistic and religious heritage,

(e) the child's views,

(f) the effect on the child if there is delay in making a decision, and

(g) the importance of continuity in providing the child with services.

(2) If the child is an aboriginal child, the importance of preserving the child's cultural identity must be considered in determining the child's best interests.

Application for secure care certificate

4 An application to the board for the issue of a secure care certificate in respect of a child may be made

(a) by a director under the Child, Family and Community Service Act, if the child is

(i) in the custody of that director under an order made under that Act, or

(ii) in the guardianship of that director under section 29 (3) of the Family Relations Act,

(b) by the director of adoption, if the child is in the guardianship of that director,

(c) by a director of secure care, if the child is not a child referred to in paragraph (a) or (b), or

(d) by the parent, if the child is not a child referred to in paragraph (a) or (b) and if the board has granted the parent leave to apply.

Date for hearing the application

5 (1) On receiving an application under section 4 (a), (b) or (c) or an application under section 4 (d) from a parent who has been granted leave to make the application, the board must set a date for hearing the application.

(2) The date set for the hearing must be within 7 days after,

(a) in the case of an application under section 4 (a), (b) or (c), the date of receipt of the application, and

(b) in the case of an application under section 4 (d), the date on which the board granted leave,

unless, in the board's opinion, more time is needed in order to convene a panel.

Notice of application

6 (1) At least 3 days before the date set for hearing an application under section 4, the registrar of the board must serve notice of the hearing on the following:

(a) the child;

(b) each parent, if the child is not

(i) in the continuing custody of a director under the Child, Family and Community Service Act,

(ii) in the guardianship of that director under section 29 (3) of the Family Relations Act, or

(iii) in the guardianship of the director of adoption;

(c) the designated representative of

(i) the appropriate Indian band or aboriginal community, if the child is an aboriginal child, other than a Nisga'a child, or

(ii) the Nisga'a Lisims Government, if the child is a Nisga'a child;

(d) the director of secure care specified in the regulations for the purpose of this section;

(e) a director under the Child, Family and Community Service Act, if the child is

(i) in the custody or under the supervision of that director under an order made under that Act, or

(ii) in the guardianship of that director under section 29 (3) of the Family Relations Act;

(f) the director of adoption, if the child is in the guardianship of that director.

(2) The board must inform the Child, Youth and Family Advocate of the hearing and the name of the child concerned.

Information about counsel and advocacy

7 (1) The registrar of the board must ensure that, when a child is served with notice of an application for a secure care certificate, the child is

(a) informed of the child's right to retain and instruct counsel,

(b) provided with information about retaining counsel, and

(c) provided with information about the role of, and how to contact, the Child, Youth and Family Advocate.

(2) A director of secure care must ensure that, when a child is apprehended under this Act, the child is informed of the right referred to in subsection (1) (a) and provided with the information referred to in subsection (1) (b) and (c).

Issue of secure care certificate

8 (1) After hearing an application under section 4, the board may issue a secure care certificate in the prescribed form authorizing the detainment of a child in a secure care facility for a specified period of not more than 30 days for a period specified under subsection (1.1) of this section if the board is satisfied that

(a) the child has an emotional or behavioural condition that presents a high risk of serious harm or injury to the child,

(b) the child is unable or unwilling to take steps to reduce that risk,

(c) less intrusive measures are not available or are not adequate to sufficiently reduce the risk,

(d) it is in the child's best interests to issue the certificate, and

(e) any consent required under subsection (2) has been obtained.

(1.1) The period specified by the board in a secure care certificate must be no longer than, in the board's opinion, is necessary for the purpose of assessing and assisting the child, but in any event must not exceed 30 days.

(2) If the child is under 12 years of age, the board may not issue a secure care certificate without the minister's consent.

(3) The board may attach to a secure care certificate any terms or conditions it considers are in the best interests of the child, including, but not limited to, a term

(a) specifying the restrictions on the child's liberty during the period of detainment, and

(b) delegating to a director of secure care the authority to direct that the restrictions on the child's liberty specified in the certificate be increased or decreased within any limits or subject to any conditions specified in the certificate.

(4) The board must give written reasons for a decision to issue or refuse to issue a secure care certificate.

(5) A secure care certificate may be issued under this section even though the child, or another person who was served with notice under section 6, does not attend the hearing, but only if the board considers it in the child's best interests to issue the certificate in their absence.

If the child does not attend

9 (1) If a secure care certificate is issued in the child's absence, the child may request the board to reconsider its decision to issue the certificate.

(2) Within 7 days after receiving the child's request, the board must

(a) consider any submissions received under subsection (3),

(b) reconsider its decision, and

(c) make an order under subsection (4).

(3) On receiving the child's request, the board must notify the child and everyone who was served with notice of the application for the secure care certificate of their right to make submissions to the board before the date specified by the board.

(4) On reconsidering its decision, the board may, by order, do one or more of the following:

(a) confirm the secure care certificate, if the board remains satisfied as to all the matters specified in section 8 (1);

(a.1) change the period of detainment specified under section 8 (1.1);

(b) change or cancel any term or condition attached to a secure care certificate confirmed under paragraph (a);

(c) cancel the secure care certificate, if the board is no longer satisfied as to all the matters specified in section 8 (1).

Information about secure care certificate and facility

10 (1) If a secure care certificate is issued in respect of a child, a director of secure care must ensure that the child is provided,

(a) as soon as possible and no later than when the child is apprehended under this Act, with a copy of the certificate, and

(b) as soon as practicable, with a copy of the board's reasons for issuing the certificate.

(2) As soon as possible after a child is admitted to a secure care facility or the child is transferred to another secure care facility, a director of secure care must inform the following of the address and telephone number of the facility:

(a) the child;

(b) each parent, if practicable and if the child is not

(i) in the continuing custody of a director under the Child, Family and Community Service Act,

(ii) in the guardianship of that director under section 29 (3) of the Family Relations Act, or

(iii) in the guardianship of the director of adoption;

(c) a director under the Child, Family and Community Service Act, if the child is

(i) in the custody or under the supervision of that director under an order made under that Act, or

(ii) in the guardianship of that director under section 29 (3) of the Family Relations Act;

(d) the director of adoption, if the child is in the guardianship of that director;

(e) the Child, Youth and Family Advocate.

Detainment without a certificate

11 (1) A director of secure care may, without a secure care certificate having been issued under section 8, apprehend a child and detain the child in a secure care facility for a period of not more than 72 hours, if the director has reasonable grounds to believe that

(a) the child has an emotional or behavioural condition that presents an immediate risk of serious harm or injury to the child,

(b) less intrusive measures are not available or are not adequate to sufficiently reduce the risk, and

(c) the detainment is necessary to ensure the child's safety.

(2) A director of secure care may, without a warrant and by force if necessary, enter any premises or vehicle or board any vessel for the purpose of apprehending and detaining a child under subsection (1) if

(a) the director has reasonable grounds to believe that the child is in the premises or vehicle or on the vessel, and

(b) a person denies the director access to the child or no one is available to allow access to the child.

(3) If requested by a director of secure care, a police officer must accompany and assist the director in exercising the authority given by subsection (2).

(4) When a child is taken under section 27 (3) (b) of the Child, Family and Community Service Act to a director of secure care, the director must promptly either

(a) apprehend the child and detain the child under subsection (1) of this section, if the director has reasonable grounds to believe that paragraphs (a) to (c) of that subsection apply to the child, or

(b) release the child, if the director does not have reasonable grounds to believe that paragraphs (a) to (c) of that subsection apply to the child.

(5) When a child is detained under this section, the director of secure care must promptly make all reasonable efforts to notify the following of the detainment:

(a) each parent, if the child is not

(i) in the continuing custody of a director under the Child, Family and Community Service Act,

(ii) in the guardianship of that director under section 29 (3) of the Family Relations Act, or

(iii) in the guardianship of the director of adoption;

(b) a director under the Child, Family and Community Service Act, if the child is

(i) in the custody or under the supervision of that director under an order made under that Act, or

(ii) in the guardianship of that director under section 29 (3) of the Family Relations Act;

(c) the director of adoption, if the child is in the guardianship of that director.

(6) If a child is detained under this section, the director of secure care must

(a) ensure that an initial assessment of the child is completed within the 72 hour period, and

(b) attend a hearing before the board within the 72 hour period to explain the reasons for the detainment and to report the results of the initial assessment.

(7) The director of secure care must, if practicable, inform the following of the date, time and place of the hearing:

(a) the child;

(b) each parent, if the child is not

(i) in the continuing custody of a director under the Child, Family and Community Service Act,

(ii) in the guardianship of that director under section 29 (3) of the Family Relations Act, or

(iii) in the guardianship of the director of adoption;

(c) a director under the Child, Family and Community Service Act, if the child is

(i) in the custody or under the supervision of that director under an order made under that Act, or

(ii) in the guardianship of that director under section 29 (3) of the Family Relations Act;

(d) the director of adoption, if the child is in the guardianship of that director;

(e) the designated representative of

(i) the appropriate Indian band or aboriginal community, if the child is an aboriginal child, other than a Nisga'a child, or

(ii) the Nisga'a Lisims Government, if the child is a Nisga'a child;

(f) the Child, Youth and Family Advocate.

(8) If not satisfied by the director of secure care that the child is detained in accordance with this section, the board must order that the child be released from the secure care facility.

(9) If, within the 72 hour period, an application is made under section 4 for a secure care certificate in respect of the child,

(a) the period during which the director of secure care has authority to detain the child extends until the board issues or refuses to issue the certificate, and

(b) the board's decision to issue or refuse to issue the certificate must be made no later than 10 days after the first day of the child's detainment.

(10) Subsection (9) does not apply if the board has ordered the child's release under subsection (8).

Authority given by certificate

12 (1) While a secure care certificate is in force, it is sufficient authority for a director of secure care to

(a) apprehend the child in respect of whom the certificate was issued,

(b) convey the child to a secure care facility and detain the child while the child is being so conveyed,

(c) detain the child in a secure care facility for the period that is specified in the certificate and that

(i) commences on the date the child is apprehended under paragraph (a), and

(ii) subject to sections 18 (2) and (6) and 19 (7) and to any renewal of the certificate, ends on the last day of the specified number of days after that date,

(d) request a police officer to

(i) assist the director in exercising the authority given to the director under paragraphs (a) and (b), or

(ii) exercise the authority given to a police officer under subsection (3),

(e) transfer the child from one secure care facility to another during the period of detainment, and

(f) exercise care and control of the child during the period of detainment.

(2) If a request is made under subsection (1) (d) (i), a police officer must accompany and assist a director of secure care in exercising the authority given by subsection (1) (a) and (b).

(3) If a request is made under subsection (1) (d) (ii), a police officer has, while the secure care certificate is in force, sufficient authority to do anything referred to in subsection (1) (a) or (b).

(4) If the child is not apprehended within 30 days after the date the secure care certificate was issued, the certificate expires at the end of that period and the child may not be apprehended under it.

Warrant to enter private premises

13 (1) In this section, "court" means the Provincial Court.

(2) On application by a director of secure care, the court may issue a warrant authorizing a police officer, subject to subsection (3) and by force if necessary, to enter any private premises specified in the warrant for the purpose of

(a) apprehending a child in respect of whom a secure care certificate has been issued, and

(b) conveying the child to a secure care facility,

if the court is satisfied that

(c) there are reasonable grounds to believe the child is or will be present on the premises, and

(d) the secure care certificate authorizes the detainment of the child in a secure care facility.

(3) A police officer may not enter private premises specified in a warrant issued under this section unless, immediately before the entry, the police officer has reasonable grounds to believe the child to be apprehended is present on the premises.

(4) The court must include in a warrant issued under this section any terms the court considers advisable to ensure that the entry into the private premises is reasonable in the circumstances.

(5) A director of secure care may apply in person, by telephone or by other means of communication to a judge of the court for a warrant under this section.

(6) If a judge of the court is not available,

(a) a director of secure care may apply in person, by telephone or by other means of communication to a justice of the peace, designated for the purpose by the chief judge of the court, for a warrant under this section, and

(b) the justice of the peace may issue the warrant.

Criteria to be considered in making placement decisions

14 (1) When selecting a secure care facility for the detainment of a child, a director of secure care must consider the child's best interests.

(2) If a suitable secure care facility is located in or near the child's community, the director must give priority to placing the child in that facility.

Assessment of child and preparation of intervention and assistance plan

15 (1) Subject to the regulations, a director of secure care must ensure that, following the issue of a secure care certificate in respect of a child,

(a) an assessment of the child is completed, and

(b) an intervention and assistance plan is prepared for the child.

(2) When preparing an intervention and assistance plan or providing services for a child, a director of secure care must consider

(a) the child's best interests, and

(b) the least intrusive but most effective alternative available to reduce the risk that led to the child's detainment.

(3) The director of secure care must provide a copy of the results of the child's assessment and a copy of the child's intervention and assistance plan to

(a) the parent, if the parent applied for the secure care certificate in respect of the child,

(b) a director under the Child, Family and Community Service Act, if that director applied for the secure care certificate in respect of the child,

(c) the director of adoption, if that director applied for the secure care certificate in respect of the child,

(d) the board,

(e) the Child, Youth and Family Advocate, and

(f) the Children's Commissioner.

Health care consent

16 (1) While a child is detained under this Act, a director of secure care may, in the child's best interests, do one or more of the following:

(a) authorize a health care provider to examine the child;

(b) consent to health care for the child if the health care is directly related to the risk that led to the child's detainment and is consistent with the purpose of this Act;

(c) consent to minor health care for the child if the minor health care is unrelated to the risk that led to the child's detainment, the child is not capable of consenting and the child's guardian is unavailable.

(2) If a director of secure care authorizes the examination of, or consents to health care for, a child under this section, the examination is deemed to have been done, or the health care is deemed to have been provided, with the consent of the child or the child's guardian.

(3) In this section, "health care", "health care provider" and "minor health care" have the same meanings as they have in the Health Care (Consent) and Care Facility (Admission) Act.

Rights of children detained in secure care facilities

17 (1) Subject to subsection (2), children detained in a secure care facility have the following rights:

(a) to be fed, clothed and sheltered according to reasonable standards;

(b) to be provided with a copy of the secure care certificate authorizing their detainment and written reasons for the issue or renewal of the certificate;

(c) to be informed in a timely manner about their intervention and assistance plans;

(d) to be consulted and to express their views, according to their abilities, about significant decisions affecting them;

(e) to be provided with guidance and assistance to address the risk that led to their detainment;

(f) to be free from corporal punishment;

(g) to receive medical and dental care when required;

(h) to participate in social and recreational activities if available and appropriate and according to their abilities and interests;

(i) to receive the religious instruction and to participate in the religious activities of their choice;

(j) to receive guidance and encouragement to maintain their cultural heritage;

(k) to be provided with an interpreter if language or disability is a barrier to consulting with them on significant decisions affecting them;

(l) to privacy in discussions with

(i) their family,

(ii) a director under the Child, Family and Community Service Act or the director of adoptions, or

(iii) a lawyer, the Child, Youth and Family Advocate, the Children's Commissioner, the Ombudsman, a member of the Legislative Assembly or a member of Parliament;

(m) to be informed about and to be assisted in contacting the Child, Youth and Family Advocate;

(n) to be informed of their rights under this section and the procedures for enforcing those rights.

(2) The rights given by this section are subject to the limits necessary to achieve the purpose of this Act and, in particular, to ensure

(a) the safety of a child, and

(b) the safe and secure operation of a secure care facility.

Unauthorized absences

18 (1) If a child in respect of whom a secure care certificate has been issued is absent, without the permission of a director of secure care, from a secure care facility for a period of 3 days, the director of secure care must promptly notify the board of the child's absence.

(2) If a child in respect of whom a secure care certificate has been issued is absent, without the permission of a director of secure care, from a secure care facility for a period of 5 days or more, the certificate expires at the end of the fifth day of the child's absence unless the board orders otherwise under subsection (3).

(3) At the request of a director of secure care made before the expiry of a secure care certificate under subsection (2) and without notice to any person, the board may order that the certificate continues in force for the period specified in the certificate.

(4) In considering a request under subsection (3), the board may take into account whether the child is likely to be apprehended under this Act or to return voluntarily to the secure care facility within a reasonable period.

(5) If a secure care certificate is continued in force under subsection (3) and if the child is not apprehended or does not return voluntarily to the facility within 30 days after the first day of the child's absence from the facility, the certificate expires at the end of that period.

(6) If a secure care certificate is continued in force under subsection (3) and the child is apprehended or returns voluntarily to the facility within 30 days after the first day of the child's absence from the facility,

(a) the child may be detained for the balance of the number of days originally specified in the certificate, and

(b) the days of absence are not to be counted as days of detainment.

Renewal of certificate

19 (1) Before the expiry of a secure care certificate, a director of secure care may apply to the board for a renewal of the certificate.

(2) At least 3 days before the date set for hearing an application under subsection (1), the director of secure care must serve notice of the hearing on the following:

(a) the child;

(b) each parent, if the child is not

(i) in the continuing custody of a director under the Child, Family and Community Service Act,

(ii) in the guardianship of that director under section 29 (3) of the Family Relations Act, or

(iii) in the guardianship of the director of adoption;

(c) a director under the Child, Family and Community Service Act, if the child is

(i) in the custody or under the supervision of that director under an order made under that Act, or

(ii) in the guardianship of that director under section 29 (3) of the Family Relations Act;

(d) the director of adoption, if the child is in the guardianship of that director;

(e) the designated representative of

(i) the appropriate Indian band or aboriginal community, if the child is an aboriginal child, other than a Nisga'a child, or

(ii) the Nisga'a Lisims Government, if the child is a Nisga'a child;

(f) the Child, Youth and Family Advocate.

(3) The director of secure care has the same duty in relation to a child served with notice under this section as the registrar of the board has under section 7 (1) in relation to a child served with notice of an application for a secure care certificate.

(4) The board may renew the secure care certificate for not more than 30 days, but only if it is satisfied that

(a) the child's emotional or behavioural condition continues to present a high risk of serious harm or injury to the child,

(b) less intrusive measures are not available or are not adequate to protect the child, and

(c) renewal of the certificate is in the child's best interests.

(5) On renewing a secure care certificate, the board may confirm, change or cancel the terms or conditions of the certificate.

(6) The board must, within 7 days after receipt of an application for renewal of a secure care certificate, decide whether or not to renew the certificate and must give written reasons for its decision.

(7) A secure care certificate in respect of which an application is made under this section remains in force until the board decides whether or not to renew the certificate.

(8) A secure care certificate may not be renewed more than twice.

Review of decision concerning issue or renewal of certificate

20 (1) The child, or any person who was served with notice of an application for the issue or renewal of a secure care certificate, may apply to the board for a review of its decision to

(a) issue or refuse to issue the certificate, or

(b) renew the certificate.

(2) A director of secure care may apply to the board for a review of its decision to refuse to renew a secure care certificate.

(3) Within 7 days after receiving an application under subsection (1) or (2), the board must

(a) consider any submissions received under subsection (4),

(b) review its decision, and

(c) make an order under subsection (5) or (6).

(4) On receiving an application under subsection (1) or (2), the board must notify the child and everyone who was served with notice of the application for the issue or renewal of the secure care certificate of their right to make submissions to the board before the date specified by the board.

(5) On reviewing a decision to issue or renew a secure care certificate, the board may, by order, do one or more of the following:

(a) confirm the certificate;

(a.1) change the period of detainment specified under section 8 (1.1);

(b) change or cancel any term or condition attached to a secure care certificate confirmed under paragraph (a);

(c) cancel the certificate.

(6) On reviewing a decision to refuse to issue or renew a secure care certificate, the board may, by order,

(a) confirm the decision, or

(b) issue a secure care certificate under section 8 or renew the certificate under section 19.

Secure Care Board

21 (1) The Lieutenant Governor in Council must establish a Secure Care Board, appoint its members and designate a member of the board as its chair and may designate another member as deputy chair.

(2) A person is not eligible to be appointed as a member of the board unless the person meets the prescribed criteria.

(3) The term of office of the chair of the board is 4 years.

(4) The term of office of the other members is 3 years, except that, of those first appointed,

(a) 1/3 are to be appointed for a term of 1 year, and

(b) 1/3 are to be appointed for a term of 2 years.

(5) A member of the board who resigns or whose appointment terminates may continue to act as a member in relation to an application or other matter commenced during the member's term of appointment until the application or other matter is disposed of.

(6) The Lieutenant Governor in Council may remove a member of the board for cause before the end of the member's term of office.

(7) The members of the board are entitled to be paid

(a) the remuneration set by the Lieutenant Governor in Council, and

(b) in accordance with general directives of Treasury Board, reasonable and necessary travelling and out of pocket expenses incurred in carrying out their duties under this Act.

Jurisdiction of the board

22 (1) The board has exclusive jurisdiction to hear any application or other matter under this Act, except an application for a warrant to enter private premises.

(2) Proceedings of the board must not be challenged, reviewed or called into question by a court, except on the grounds of lack or excess of jurisdiction.

Panels and procedure

23 (1) The chair of the board

(a) must, in accordance with the regulations, organize the board into panels, each consisting of up to 3 members,

(b) may, for each application or other matter, designate the member or members of the panel and the chair of the panel, and

(c) may assign to a panel any application or other matter that is to be heard by the board.

(2) In matters assigned under subsection (1), the panel has all the jurisdiction of the board and a decision or order of the panel is a decision or order of the board.

(3) Subject to the regulations, a panel of the board may determine how a hearing before the panel is to be conducted, including whether submissions to the panel are to be made in person, in writing, by conference call or by other means of communication.

(4) A hearing before a panel of the board may be conducted in as informal a manner as is appropriate having regard to the child's level of development and right to participate in the hearing.

(5) If a panel has more than one member, the decision of the majority of the panel is the panel's decision.

(6) If there is no majority, the decision of the member chairing the panel is the panel's decision.

(7) Subject to the regulations, hearings of the board are not open to the public.

Inquiry Act powers

24 For the purposes of a hearing under this Act, the board, a panel and each of their members have all the powers, protection and privileges of a commissioner under sections 12, 15 and 16 of the Inquiry Act.

Child's right to be represented and to participate in proceedings

25 (1) Subject to the board's discretion under section 26 (1) to dispense with notice to the child, a child is entitled

(a) to be represented by counsel at the hearing of an application or request under section 4, 9, 11 (6) (b), 19 or 20,

(b) to attend a hearing referred to in paragraph (a) or, if the hearing is conducted in writing, by conference call or by any other means of communication, to have the same opportunity to participate in the hearing as any other party, and

(c) to be informed of the child's rights under this section.

(2) Despite subsection (1) (b), the board may exclude a child from all or part of a hearing if

(a) failure to do so might, in the board's opinion, result in emotional or other harm to the child,

(b) failure to do so would, in the board's opinion, endanger the safety of other persons, or

(c) the child disrupts the hearing to the extent that it cannot continue.

Board may vary notice requirements

26 (1) On application or on its own motion, the board may dispense with a requirement of this Act or the regulations that a child or other person be notified, or served with notice, of a proceeding if the board is satisfied that

(a) it is in the child's best interests to do so, and

(b) the prescribed circumstances exist.

(2) Subsection (1) does not authorize the board to dispense with a requirement that a director of secure care, a director under the Child, Family and Community Service Act or the director of adoption be notified of, or served with notice of, a proceeding.

(3) The board may shorten the time period for notifying a person of, or serving a person with notice of, a proceeding or other matter under this Act or the regulations or may extend the time period even though it has expired.

Evidence of board members

27 A member or former member of the board 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 in carrying out their powers, duties and functions under this Act.

Annual report

28 (1) The board must make an annual report to the minister.

(2) An annual report presented to the minister under subsection (1) must be laid before the Legislative Assembly as soon as practicable.

Designation of director of secure care

29 (1) Subject to the regulations, the minister may designate one or more persons as a director of secure care.

(2) A designation under subsection (1) must be in writing and may include any terms or conditions the minister considers advisable.

Power to delegate

30 (1) Subject to the regulations, a director of secure care may delegate to any person or class of persons any or all of the director's powers, duties or functions under this Act.

(2) A delegation of the powers, duties or functions of a director of secure care must be in writing and may include any terms or conditions the director considers advisable.

Other powers and duties of director of secure care

31 (1) Subject to the regulations, a director of secure care may do one or more of the following:

(a) establish facilities for the purpose of this Act;

(b) designate facilities as secure care facilities;

(c) establish residential or other services for children;

(d) make agreements with any person for the provision of residential or other services for children;

(e) make agreements to promote the purpose of this Act, including but not limited to agreements

(i) with the Nisga'a Nation or a Nisga'a Village, as defined in the Nisga'a Final Agreement,

(ii) an Indian band or a legal entity representing an aboriginal community,

(iii) with the government of Canada, the government of a province of Canada or the government of a jurisdiction outside Canada or an official or agency of any of those governments, and

(iv) with any ministry of the government or any community agency.

(2) A director of secure care must, in accordance with the regulations,

(a) establish a procedure for reviewing the exercise of the director's powers, duties and functions under this Act, and

(b) ensure that information about the review process is available to any person on request.

No reprisals because of review

32 (1) A person must not intimidate, coerce, discipline or otherwise discriminate against a child because the child

(a) has requested a review under the procedure established under section 31 (2), or

(b) is the subject of, or has given information or otherwise assisted in, such a review.

(2) A person must not discharge, suspend, expel, intimidate, coerce, evict or impose a financial or other penalty on, or otherwise discriminate against, a person other than a child because the person

(a) has requested a review under the procedure established under section 31 (2), or

(b) has given information or otherwise assisted in such a review.

Director's right to information

33 (1) A director of secure care has the right to any information that

(a) is in the custody or control of a director under the Child, Family and Community Service Act or a public body as defined in the Freedom of Information and Protection of Privacy Act, and

(b) is necessary to enable the director of secure care to exercise his or her powers or perform the duties or functions under this Act.

(2) A director under the Child, Family and Community Service Act or a public body that has custody or control of information to which a director of secure care is entitled under subsection (1) must disclose that information to the director of secure care.

(3) This section applies despite any other enactment but is subject to a claim of privilege based on a solicitor-client relationship.

Definition for purposes of sections 35 to 42

34 In sections 35 to 42, "record" means a record as defined in the Freedom of Information and Protection of Privacy Act that is made under this Act and is in the custody or control of a director of secure care.

Freedom of Information and Protection of Privacy Act

35 Except as provided in sections 38 (3), 41 and 42 (5), the Freedom of Information and Protection of Privacy Act does not apply to a record made under this Act or to information in that record.

Confidentiality of information

36 A person must not disclose information obtained under this Act except

(a) in accordance with section 37, to a person who has a right of access to a record,

(b) in accordance with sections 39 and 40,

(c) in a report under section 28, but only to the extent necessary to establish grounds for findings or recommendations contained in that report, or

(d) in the case of a person who is a member or the registrar of the board, to the extent necessary for carrying out the powers, duties and functions of the board or the duties of the registrar.

Right of access and right to consent to disclosure

37 (1) A person has the right

(a) to be given access to a record containing information about the person, and

(b) to consent, in the prescribed manner, to the disclosure of that information.

(2) A person has the right

(a) to be given access to a record containing information about a child who is under 12 years of age and is in the person's legal care, and

(b) to consent, in the prescribed manner, to the disclosure of that information.

(3) The right to be given access to a record and to consent to the disclosure of information in the record does not extend to information excepted from disclosure under section 38.

(4) If information excepted under section 38 can reasonably be severed from a record, a person referred to in subsection (1) or (2) of this section has the right of access to and the right to consent to the disclosure of information in the remainder of the record.

(5) A person who is given access to a record under this section has the following rights:

(a) to examine the record or obtain a copy of the record;

(b) to request that the record be corrected.

Exceptions to access rights

38 (1) A director of secure care must refuse to disclose information to a person who has a right of access under section 37 if the disclosure would be an unreasonable invasion of a third party's personal privacy.

(2) A director of secure care may refuse to disclose information to a person who has a right of access under section 37 if

(a) there are reasonable grounds to believe that the disclosure might result in physical or emotional harm to that person or to another person,

(b) the disclosure could reasonably be expected to jeopardize an investigation under section 16 of the Child, Family and Community Service Act or a criminal investigation that is under way or contemplated, or

(c) the information is subject to solicitor-client privilege.

(3) Section 22 (2) to (4) of the Freedom of Information and Protection of Privacy Act applies for the purpose of determining whether a disclosure of information is an unreasonable invasion of a third party's personal privacy.

Disclosure with consent

39 A director of secure care may disclose information obtained under this Act if a person who under section 37 has a right of access to a record containing that information has consented in the prescribed manner to its disclosure.

Disclosure without consent

40 A director of secure care may, without the consent of any person, disclose information obtained under this Act if the disclosure is

(a) necessary to ensure the safety or well-being of a child,

(b) necessary to ensure the safety of a person, other than a child,

(c) required by order of a court to be made to a party to a proceeding,

(d) permitted by the Young Offenders Act (Canada),

(e) required by an enactment,

(f) made when giving or when validly compelled to give evidence in a proceeding,

(g) necessary to enable the Public Guardian and Trustee to perform duties and exercise powers as guardian of a child's estate,

(h) made to the director of secure care's legal counsel,

(i) made to a service provider and the information relates to a child to whom the service provider, by agreement with the director of secure care, provides services,

(j) made to a director under the Child, Family and Community Service Act, if the child to whom the information relates is

(i) in the custody or under the supervision of that director under an order made under that Act, or

(ii) in the guardianship of that director under section 29 (3) of the Family Relations Act,

(k) made to the director of adoption, if the child to whom the information relates is in the guardianship of that director,

(l) made to the parent, if the child to whom the information relates is not

(i) in the continuing custody of a director under the Child, Family and Community Service Act,

(ii) in the guardianship of that director under section 29 (3) of the Family Relations Act, or

(iii) in the guardianship of the director of adoption,

(m) necessary for the administration of this Act, or

(n) for research purposes in accordance with section 35 of the Freedom of Information and Protection of Privacy Act.

Accuracy, protection and retention of information

41 Sections 28, 30 and 31 of the Freedom of Information and Protection of Privacy Act apply to a director of secure care.

Review by Information and Privacy Commissioner

42 (1) A person who requests access to a record or correction of a record may ask the Information and Privacy Commissioner to review any decision, act or omission of a director of secure care that relates to the request.

(2) A person may ask the Information and Privacy Commissioner to review a complaint that information relating to the person has been disclosed in contravention of section 36.

(3) To ask for a review, a written request must be delivered to the Information and Privacy Commissioner.

(4) If the request is for a review of a decision, the request must be delivered within 30 days after the person asking for the review is notified of the decision.

(5) Sections 44 to 49, 54 to 57, 58 (1), (2), (3) (d), (4) and (5) and 59 of the Freedom of Information and Protection of Privacy Act apply in respect of a review requested under this section, except that a reference to a public body or to the head of a public body is to be read as a reference to a director of secure care.

(6) If there is a review of a complaint that a director of secure care is disclosing information in contravention of section 36, the Information and Privacy Commissioner may order the director of secure care to stop disclosing that information.

Protection from liability

43 No person is personally liable for anything done or omitted in good faith in the exercise, performance or intended exercise or performance of

(a) a power, duty or function conferred by or under this Act, or

(b) a power, duty or function on behalf of or under the direction of a person on whom the power, duty or function is conferred by or under this Act.

Offences and penalties

44 (1) A person commits an offence if the person

(a) without lawful excuse impedes or obstructs a director of secure care or a police officer from apprehending or detaining a child in accordance with this Act,

(b) knowingly, during the period a child is authorized under this Act to be detained in a secure care facility, assists, by an act or omission, the child in leaving the facility without the permission of a director of secure care, or

(c) contravenes section 32.

(2) A person who commits an offence under subsection (1) is liable to a fine of not more than $10 000 or to imprisonment for not more than 6 months or to both.

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

Power to make regulations

45 (1) The Lieutenant Governor in Council may make regulations as authorized by section 41 of the Interpretation Act.

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:

(a) respecting leave to apply under section 4 (1) (d) for a secure care certificate, including the criteria to be applied by the board when considering a request for leave;

(b) specifying a director of secure care for the purposes of section 6 (1) (d);

(c) respecting initial assessments, assessments and the content and preparation of intervention and assistance plans;

(d) exempting a director of secure care from the requirement to complete an assessment or an intervention and assistance plan in prescribed circumstances;

(e) respecting the criteria for the appointment of persons as members of the board;

(f) respecting the composition of panels of the board;

(g) governing the rules, practices and procedures for making, hearing and determining applications and requests to the board, including, but not limited to, rules governing

(i) adjournments,

(ii) disclosure by the parties before a hearing,

(iii) the circumstances in which notice may be dispensed with under section 26,

(iv) evidence, and

(v) the recording of proceedings;

(h) respecting the content of the board's annual report to the minister;

(i) respecting the prerequisites for the designation of directors of secure care and the standards to be met by those directors;

(j) respecting the delegation of the powers, duties and functions of directors of secure care, including regulations authorizing the minister to restrict the power of directors to delegate;

(k) respecting the establishment of facilities and the designation of facilities as secure care facilities;

(l) respecting the establishment of residential and other services under section 31 (1) (c);

(m) governing agreements under section 31 (1) (d) and (e);

(n) governing reviews under section 31 (2);

(o) prescribing for the purposes of sections 37 (1) (b) and (2) (b) and 39 the manner of giving consent to the disclosure of information;

(p) specifying for the purposes of section 37 how and by whom rights relating to access to records may be exercised on behalf of persons who are incapable of exercising those rights for themselves;

(q) respecting the procedure for notifying third parties before access is given to records containing information about them;

(r) specifying for the purposes of section 37 (5) the duties of a director of secure care with respect to correction of information;

(s) defining any word or expression used but not defined in this Act;

(t) governing any other matter necessary to achieve the purpose of this Act.

 
Consequential Amendments

Child, Family and Community Service Act

46 Section 1 (1) of the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46, is amended by adding the following definition:

"director of secure care" means a person designated under section 29 of the Secure Care Act; .

47 Section 27 is amended

(a) by repealing subsection (3) and substituting the following:

(3) On taking charge of the child, the police officer must immediately report the circumstances to a director and do one of the following:

(a) take the child to the director or to a person or place designated by the director;

(b) with the approval of the director to whom the circumstances were reported, take the child to a director of secure care;

(c) with the approval of the director to whom the circumstances were reported, return the child to the child's parent or take the child to a person designated by the parent. ,

(b) in subsection (4) by adding "under subsection (3) (a)" after "If the child is taken",

(c) in subsection (5) by adding "after taking charge of a child under subsection (4)" after "as soon as possible" and before paragraph (a), and

(d) by adding the following subsection:

(7) If approval is given for the child to be taken under subsection (3) (b) to a director of secure care, the director who gave the approval must immediately make all reasonable efforts to notify the child's parent of

(a) the circumstances in which the police officer took charge of the child,

(b) the approval to take the child to a director of secure care, and

(c) how to contact the director of secure care.

48 Section 96 (1) and (2) is repealed and the following substituted:

(1) A director has the right to any information that

(a) is in the custody or control of

(i) a public body as defined in the Freedom of Information and Protection of Privacy Act, or

(ii) a director of secure care, and

(b) is necessary to enable the director to exercise the powers or perform the duties or functions of a director under this Act.

(2) A public body or director of secure care that has custody or control of information to which a director is entitled under subsection (1) must disclose that information to the director.

 
Freedom of Information and Protection of Privacy Act

49 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.2) a record that is created by or for, or is in the custody or control of, the Secure Care Board and that relates to the exercise of that board's functions under the Secure Care Act; .

Commencement

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


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