2005 Legislative Session: 1st Session, 38th Parliament
FIRST READING
The following electronic version is for informational
purposes only.
The printed version remains the official version.
MR. ADRIAN DIX
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:
"administrator" means a person responsible for the administration of a designated service;
"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;
"children in care" means children who are in the custody, care or guardianship of a director or the director of adoption;
"commission" means the British Columbia Children's Commission established under section 4;
"commissioner" means a person appointed under section 5 as the Children's Commissioner;
"deputy commissioner" means a person appointed under section 5 as a Deputy Children's Commissioner;
"designated Act" means
(a) the Child, Family and Community Service Act,
(b) the Family Relations Act,
(c) the Adoption Act,
(d) the Community Living Authority Act,
(e) the School Act, or
(f) another prescribed Act;
"designated services" means services or programs
(a) authorized, provided or funded under a designated Act;
(b) provided by a prescribed ministry, branch or agency of the government; or
(c) provided in a prescribed facility or class of facility;
and includes, but is not limited to
(i) services provided under a designated Act;
(ii) early childhood development care and services;
(iii) mental health services for children and youth;
(iv) addiction services for children and youth;
(v) youth justice services; and
(vi) services for youth and young adults during transition to adulthood.
"director" means a director under the Adoption Act or the Child, Family and Community Service Act;
"ministry" means the Ministry of Children and Family Development;
"panel" means a panel of the members which are appointed under section 24 to review a complaint referred to the tribunal;
"rights" includes, but is not limited to, the rights of children in care recognized under section 70 of the Child, Family and Community Service Act;
"tribunal" means the British Columbia Children's Tribunal established under section 24;
"youth" means a person who is 16 years of age or older but is under 19 years of age.
2 The Children's Commission is established:
(a) to ensure that the rights, interests, health and welfare of children, youths and their families relating to designated services are protected and advanced and that their views are heard and considered;
(b) to ensure that children, youths and their families have access to fair, responsive and appropriate complaint and review processes at all stages in the provision of designated services;
(c) to provide information and advice to the government and communities about the availability, effectiveness, responsiveness and relevance of designated services to children, youths and their families;
(d) to promote and coordinate in communities the establishment of advocacy services for children, youths and their families;
(e) to monitor the delivery of services in relation to the requirements of the Child, Family and Community Service Act and in particular the requirements under sections 2 and 3 of that Act;
(f) to perform any other functions assigned to the commission by an enactment.
3 In performing the duties and exercising the powers given to it under this Act, the commission should take the following principles into account:
(a) the need of children for services that are
(i) physically, geographically and financially accessible,
(ii) community-based,
(iii) coordinated and integrated,
(iv) inclusive of gender, culture and language,
(v) responsive to individual and collective 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.
Part 2 -- Children's Commission
4 The British Columbia Children's Commission is established to perform the duties and exercise the powers given to it under this Act.
5 (1) The commission consists of the commissioner and two deputy commissioners appointed by the Lieutenant Governor in Council, as officers of the Legislature, on the recommendation of the Legislative Assembly.
(2) Each appointment under subsection (1)
(i) must be unanimously recommended for the appointment by a special committee of the Legislative Assembly; and
(ii) is for a term of 5 years.
6 Employees necessary to achieve the purposes of the Commission may be appointed under the Public Service Act.
7 (1) In fulfilling the purposes under section 2, the commission may
(a) investigate and review a case of one or more individuals or groups, whether or not a request or complaint has been made;
(b) advocate on behalf of children, youth and their families to ensure that their views are heard and considered;
(c) initiate and participate in, or assist children, youth and their families to initiate and participate in, case conferences, administrative reviews, mediations or other processes in which decisions are made about the provision of designated services;
(d) meet with and interview children, youth and their families;
(e) provide information, advice and assistance to children, youth and their families so that they may effectively access services that meet their needs;
(f) inform the public about the needs and rights of children, youth and their families, including their right to obtain assistance from the commission;
(g) provide public education and information designed to promote an understanding of, and to invite public comment on, the commission's work;
(h) make recommendations about legislation, policies and practices respecting services for or the rights of children, youth and their families;
(i) make agreements to assure the provision of advocacy services to children, youth and their families, including agreements with ministers, agencies and community organizations; and
(j) comment publicly on matters affecting children and youth; and
(k) take other action
(i) required or allowed by this Act or the regulations; or
(ii) necessary to fulfill the commission's purposes.
(2) The commission may attempt to resolve any matter through the use of negotiation, conciliation, mediation or other dispute resolution processes.
8 The commission must
(a) independent of or in cooperation with a coroner, 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) independent of or in cooperation with a coroner, collect information about critical injuries sustained by children while they are receiving designated services and investigate those injuries; and
(c) make recommendations concerning any deaths or critical injuries investigated
(i) under paragraph (a) or (b); or
(ii) by a coroner;
if the commission considers this will enhance the safety and protection of other children.
9 The commission may
(a) 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 or denial of designated services to children;
(b) monitor whether ministries and agencies referred to in paragraph (a) are meeting the standards set under that paragraph; and
(c) in relation to plans of care for children in care,
(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.
10 (1) The commission may collect data or conduct or encourage research into matters relevant to this Act.
(2) The commission may hold public hearings and consultations regarding matters relevant to this Act.
(3) The commissioner or a deputy commissioner may consult with any person, including a multi-disciplinary team of advisors established by regulation, regarding matters relevant to this Act.
11 (1) The commissioner must present the following to the Speaker of the Legislative Assembly:
(a) an annual report on the activities of the commission and the disposition of complaints under this Act;
(b) reports made by the commission on findings and recommendations under section 8 and responses, if any, of ministries or agencies to those findings and recommendations;
(c) reports presented to a minister under section 28;
(d) generally, reports prepared in relation to
(i) research and consultations conducted under this Act; and
(ii) recommendations and orders made under this Act.
(2) The Speaker must lay a report by the commissioner before the Legislative Assembly as soon as possible.
12 (1) The commissioner or a deputy commissioner may conduct special investigations and prepare special reports in relation to matters relevant to this Act.
(2) Reports prepared under subsection (1) must be presented to the Speaker of the Legislative Assembly, who must lay those reports before the Legislative Assembly as soon as possible.
13 Reports under sections 11 and 12 may include recommendations respecting
(a) measures that may be taken in accordance with the guiding principles under section 3 to fulfill the purposes under section 2;
(b) amendments to this Act, the regulations or other enactments affecting children.
14 (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 commissioner.
(3) This section applies despite any other enactment, but is subject to a claim of confidentiality based on a solicitor-client relationship.
15 Before preparing a report or making a recommendation under this Act, the commission must
(a) inform an authority or person who may be affected by the grounds for the report or recommendation of those grounds, and
(b) give the authority or person an opportunity to make representations to the commission.
16 After completing an investigation into the death or critical injury of a child, the commission may report its findings and recommendations to the following:
(a) a parent of the child;
(b) a guardian of the child, if a parent was not the guardian at the time of death or critical injury;
(c) a director caring for the child;
(d) a subject of the recommendations, including a ministry, agency or person;
(e) the child, if the child was 12 years of age or older when the investigation was completed.
17 (1) A person may file a complaint with the commission concerning the provision or denial of designated services.
(2) The commission may initiate a complaint by itself or at the request of any person.
18 Unless a complaint is refused or deferred under section 22, the commission must notify the following of the complaint:
(a) if the complaint relates to a child in care,
(i) the director caring for the child, and
(ii) the child, if he or she is 12 years of age or older and is not the complainant;
(b) if the complaint relates to a decision concerning a designated service,
(i) the administrator of the designated service, and
(ii) a person directly affected by the decision, if he or she is not the complainant.
19 An investigation by the commission may be made by the commissioner, a deputy commissioner or an employee of the commission.
20 (1) For any purpose under this Act or the regulations, a person authorized to investigate a complaint under section 19 has the same powers that the Supreme Court has for the trial of civil actions to do the following:
(a) to summon and enforce the attendance of witnesses;
(b) to compel witnesses to give evidence on oath or in any other manner;
(c) to compel witnesses to produce records and things.
(2) When a power is exercised under subsection (1), a person who fails or refuses to do any of the following is liable, on application to the Supreme Court, to be committed for contempt as if in breach of an order or judgment of the Supreme Court:
(a) to attend;
(b) to take an oath;
(c) to answer questions;
(d) to produce the records or things in the person's custody or possession.
(3) A person authorized to investigate a complaint under section 19 has the same protection and privileges, in case of an action brought for an act done or omitted to be done in the execution of the person's duties, as are by law given to the judges of the Supreme Court.
21 For the purpose of carrying out duties or exercising powers or functions under this Act, a person authorized to investigate a complaint under section 19 may, at any reasonable time, enter any premises in which designated services are provided to children or youths.
22 (1) The commission may refuse to accept a complaint made under section 17 if,
(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 concerned with the provision or denial of designated services,
(d) the complaint is not made within the prescribed time limit, or
(e) the complaint is found to be frivolous, vexatious or 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.
23 (1) The commission may review a 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 commissioner or a deputy commissioner must either
(a) refer the complaint to the tribunal for review, or
(b) dismiss the complaint.
24 (1) The British Columbia Children's Tribunal is established consisting of such members as shall be appointed by the Lieutenant Governor in Council.
(2) The tribunal consists of a chair and one or more vice-chairs appointed by the Lieutenant Governor in Council from among the members of the tribunal.
(3) Such employees as are necessary for the proper conduct of the tribunal may be appointed under the Public Service Act.
(4) For each complaint referred to the tribunal, the chair may:
(a) chair a panel consisting of members referred to in subsections (1) and (2) or designate one of those members as the chair; or
(b) sit alone as a panel to review the complaint.
25 The panel must hold a hearing
(a) to determine whether the complaint is justified; and
(b) to decide on an appropriate order or recommendation under section 27.
26 The parties to a hearing are
(a) the commission, which has carriage of the complaint;
(b) the complainant; and
(c) the respondent.
27 (1) If a panel determines after reviewing a complaint made under section 17 that the complaint is justified, the panel may make an order or recommendation to remedy the complaint.
(2) An order or recommendation under subsection (1) may include
(a) an order requiring a director to ensure that the complaint is remedied;
(b) an order requiring an administrator to reconsider a decision that was the subject matter of the complaint;
(c) recommendations regarding steps that a director or administrator might take to remedy the complaint;
(d) a request that a director or administrator
(i) notify both the tribunal and the commissioner of the steps taken to comply with an order or recommendations under paragraphs (a), (b) or (c), and
(ii) give reasons if the director or administrator decides not to take any steps or not to follow the panel's order or recommendations.
(3) If an order is made requiring a director to ensure that a complaint is remedied, the director must promptly perform any duty or use any power or function authorized under the Child, Family and Community Service Act or the Adoption Act to ensure the complaint is remedied.
(4) After considering a response to a request under subsection (2) (d), the tribunal may modify a recommendation made under subsection (2) (c).
(5) The tribunal must send a copy of any order or recommendation made under this section to
(a) the commissioner; and
(b) the minister responsible for the designated Act or service to which the order or recommendation is related.
28 (1) After considering a response to a request under section 27 (2) (d), the commissioner may act under this section if
(a) no steps have been taken in response to the relevant order, or
(b) the steps taken are not, in the commissioner's opinion, adequate or appropriate.
(2) If the commissioner is authorized to act under this section, the commissioner may
(a) present a report of the matter to the appropriate minister, and
(b) make the report public within 30 days of its presentation to the minister.
(3) A report under subsection (2) must include a copy of
(a) the relevant order and any related recommendations, and
(b) the response to the request under section 27 (2) (d).
29 (1) Notwithstanding any action taken under sections 27 or 28, the party in whose favor an order is made under section 27, or, subject to subsection (2), the commissioner or a deputy commissioner, may file a certified copy of the order with the Supreme Court.
(2) The commissioner or a deputy commissioner may file an order made under section 27 only with the consent of
(a) the complainant, if the complaint was filed on behalf of a group or class of persons, or
(b) the person in whose favour the order is made in any other case.
(3) An order filed under subsection (1) has the same force and effect, and all proceedings may be taken on it, as if it were a judgment of the Supreme Court.
(4) If the commissioner or a deputy commissioner files an order under subsection (1), that person may take steps to enforce the order under subsection (3).
30 Any party to a proceeding before the panel may appeal a decision or order of the panel to the Supreme Court in accordance with the rules of court.
31 The ministry must cover all necessary costs incurred by a complainant in the pursuit of a complaint under this Part, including reasonable travel and accommodation costs, unless the complaint is refused under section 22 (1) (e).
32 (1) If a child or youth in a foster home, group home, facility or other place in which designated services are provided asks to communicate with the commissioner, the person in charge of that place must immediately forward the request to the commissioner.
(2) If a child or youth in a foster home, group home, facility or other place in which designated services are provided writes a letter addressed to the commissioner, the person in charge of that place must immediately forward the letter unopened to the commissioner.
33 (1) Despite the Freedom of Information and Protection of Privacy Act, the commissioner, a deputy commissioner, the chair or a vice chair of the tribunal, an employee of the commission or tribunal, or a person with which the commissioner or a deputy commissioner may consult under section 10 (3) 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 produce records
relating to information obtained with respect to an investigation or complaint under this Act.
(2) Subject to subsection (3), the persons referred to in subsection (1) must maintain confidentiality about all matters that come to their knowledge in carrying out their duties, powers and functions under this Act.
(3) In a report under this Act, the persons referred to in subsection (1) may disclose information that comes to their knowledge in carrying out their duties, powers and functions under this Act, but only to the extent necessary to establish grounds for findings or recommendations contained in that report.
34 Anything said, any information supplied or any record produced during
(a) an investigation or review by the commissioner, a deputy commissioner, an employee of the commission, or a member of the tribunal, or
(b) a consultation with a person under section 10 (3)
is privileged as if the investigation, review or consultation were a proceeding before a court.
35 No action lies and no proceeding may be brought for damages against the commissioner, a deputy commissioner, an employee of the commission, a member or former member of the tribunal, or a person consulted under section 10 (3) 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.
36 A person must not discharge, suspend, expel, intimidate, coerce, discipline, evict or impose any financial or other penalty on, or otherwise discriminate against, a person, including a child or youth, because the person
(a) pursues 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.
37 (1) A person commits an offence if that person
(a) without lawful excuse, impedes or obstructs the commissioner or another person in performing duties or exercising powers or functions under this Act;
(b) provides false or misleading information when required under this Act to provide information;
(c) contravenes section 36.
(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.
38 The Lieutenant Governor in Council may make regulations as authorized by section 41 of the Interpretation Act.
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