1997 Legislative Session: 2nd Session, 36th Parliament
THIRD READING
The following electronic version is for informational purposes only.
The printed version remains the official version.
Certified correct as passed Third Reading on the 5th day of June, 1997
Ian D. Izard, Law Clerk
HONOURABLE UJJAL DOSANJH
ATTORNEY GENERAL AND
MINISTER RESPONSIBLE FOR
MULTICULTURALISM,
HUMAN RIGHTS AND
IMMIGRATION
Contents
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:
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
2 (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.
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.
4 (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.
5 (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.
6 (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.
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.
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 child's 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.
9 (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
10 (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.
11 (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.
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.
13 (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.
14 (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.
15 (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.
16 (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.
17 (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 if
(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
18 (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
(b) the other terms and conditions of the Children's Commissioner's 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.
19 (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.
20 (1) The minister may appoint persons who
(a) meet the criteria prescribed under section 29 (2) (g), 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) and the minister may set their remuneration and the other terms and conditions of their appointment.
21 (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.
22 The Financial Administration Act applies to the commission as though the commission were a division of the ministry administered by the minister.
23 (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.
24 (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.
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.
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.
27 (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.
28 (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.
29 (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 or dismiss 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.
Child, Family and Community Service Act
30 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; .
31 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
33 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; .
34 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
35 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; .
36 Schedule 1 is amended in the definition of "officer of the Legislature" by adding "the Child, Youth and Family Advocate," after "the Auditor General,".
37 This Act comes into force by regulation of the Lieutenant Governor in Council.
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