BILL NO. 126
(as introduced)
3rd Session, 63rd General Assembly
Nova Scotia
70 Elizabeth II, 2021
Private Member's Bill
Child and Youth Advocate Act
Steve Craig
Sackville–Cobequid
First Reading: April 14, 2021
Second Reading:
Third Reading:
An Act to Establish
the Office of the Child and Youth Advocate
WHEREAS the rights and interests of children and youth should be protected;
AND WHEREAS the views of children and youth should be heard and considered in appropriate forums where those views might not otherwise be advanced;
AND WHEREAS children and youth should have access to services and their complaints about those services should receive appropriate attention;
THEREFORE be it enacted by the Governor and Assembly as follows:
1 This Act may be cited as the Child and Youth Advocate Act.
(a) "Advocate" means the Child and Youth Advocate appointed under this Act;
(b) "agency" has the same meaning as in the Ombudsman Act;
(c) "child" means a person under 12 years of age;
(d) "chief officer" has the same meaning as in the Ombudsman Act;
(e) "department" has the same meaning as in the Ombudsman Act;
(f) "minister" has the same meaning as in the Ombudsman Act;
(g) "recognized party" means a recognized party within the meaning of the House of Assembly Act;
(h) "youth" means a person 12 years of age or older, but under 19 years of age.
3 (1) Subject to Section 26, there is hereby established, as an officer of the Assembly, an advocate for children and youth to be called the Child and Youth Advocate.
(2) The Advocate is not eligible to be nominated for election to or to be elected as, or to sit as, a member of the Assembly.
(3) The Advocate may not hold another public office or carry on a trade, business or profession.
4 (1) A selection committee composed of
(a) the Clerk of the Executive Council or the Clerk's designate;
(b) the Chief Clerk of the Assembly or the Clerk's designate;
(c) a member of the judiciary; and
(d) a member of the university community,
shall identify qualified persons as potential candidates to be appointed as the Child and Youth Advocate and submit a list of such persons to the Premier.
(2) The Premier shall consult with the Leader of the Opposition and the leaders of any other recognized parties with respect to the persons on the list prepared under subsection (1).
(3) Subject to the approval of the Assembly by resolution, the Governor in Council shall appoint a person on the list prepared under subsection (1) to be the Child and Youth Advocate.
5 (1) On the recommendation of the Assembly, the Governor in Council may remove or suspend the Advocate from office for cause or incapacity.
(2) When the Assembly is not sitting, a judge of the Supreme Court of Nova Scotia may suspend the Advocate from office for cause or incapacity upon application by the Governor in Council.
(3) Where a judge of the Supreme Court of Nova Scotia suspends the Advocate under subsection (2), the judge shall
(a) request the Governor in Council to appoint a person as acting Advocate to hold office until the suspension has been dealt with by the Assembly; and
(b) file a report of the suspension with the Clerk of the Assembly.
(4) A suspension under subsection (2) may not continue beyond the end of the next ensuing sitting of the Assembly.
6 The Advocate shall take the oath in prescribed form before entering upon the duties of office.
(a) receive, review and investigate a complaint relating to a child or youth who receives services from the Government pursuant to the Children and Family Services Act or the Employment Support and Income Assistance Act;
(b) advocate, mediate or use another dispute resolution process on behalf of a child or youth, whether or not a petition is made to the Advocate;
(c) where advocacy, mediation or another dispute resolution process has not resulted in an outcome the Advocate believes to be satisfactory, conduct an investigation on behalf of the child or youth, whether or not a petition is made to the Advocate;
(d) consult with children and youth about their interests and views, access to services and the appropriateness of available services;
(e) initiate and participate in, or assist children and youth to initiate and participate in, case conferences, administrative reviews, mediations or other processes in which decisions are made about the provision of services;
(f) inform the public about the needs and rights of children and youth, including about the Office of the Advocate;
(g) sit as a member of any committee, including a child death review committee, that is struck to investigate the death or serious injury of a child; and
(h) make recommendations to the Government, a department or a community about legislation, policies and practices respecting services to or the rights of children and youth.
(2) The Advocate may investigate any topic that involves a child or youth who is
(a) a child in care within the meaning of the Children and Family Services Act; or
(b) a person in need within the meaning of the Employment Support and Income Assistance Act.
(3) The Advocate may not act as legal counsel.
8 (1) The Advocate may, subject to the approval of the Governor in Council, appoint such assistants and employees as the Advocate considers necessary for the efficient carrying out of the Advocate's functions under this Act.
(2) Before performing any official duty under this Act, a person appointed under subsection (1) shall take an oath, to be administered by the Advocate, to well and truly perform the duties of office.
9 (1) The Advocate and every person employed under the Advocate shall keep confidential all matters that come to their knowledge in the exercise of their duties or functions under this Act.
(2) Notwithstanding subsection (1), the Advocate may disclose in a report made by the Advocate under this Act those matters which the Advocate considers necessary to disclose in order to establish grounds for the Advocate's conclusions and recommendations but shall not disclose the name of or identifying information about a child or youth or a parent or guardian of the child or youth.
10 (1) The Advocate does not have jurisdiction over and may not act under Section 7 with respect to the following:
(a) the judges and functions of any court of the Province; and
(b) the deliberations and proceedings of the Executive Council or any committee of it.
(2) The Advocate may not investigate or review a matter that is being or has been investigated or reviewed by the Ombudsman or the Nova Scotia Human Rights Commission.
(3) Notwithstanding any other Act that provides that a decision, recommendation, act or omission is final or that no appeal lies in respect of it or that no proceeding, decision, recommendation, act or omission of a department, chief officer or employee of it is to be challenged, reviewed, quashed or called in question, the Advocate may exercise the powers of the Advocate's office.
(4) Where a question arises as to the jurisdiction of the Advocate to investigate a matter under this Act, the Advocate may apply to the Supreme Court of Nova Scotia for a declaratory order determining the question.
11 This Act does not affect, abrogate, abridge or infringe or authorize the abrogation, abridgement or infringement of any substantive or procedural right or remedy existing elsewhere or otherwise than in this Act.
12 (1) A person may petition the Advocate, in writing or otherwise, to review, investigate or provide advocacy services in relation to a matter within the jurisdiction of the Advocate under this Act.
(2) A committee of the Assembly may refer any petition that is before it for consideration, or any matter relating to the petition, to the Advocate to be investigated.
(3) Where a matter has been referred to the Advocate under subsection (2), the Advocate, subject to any special directions of the committee, shall investigate the matter as far as it is within the Advocate's jurisdiction and shall make a report to the committee.
13 (1) Where a child or youth in a facility, caregiver's home, group home or other home or place in which the child or youth is placed under the Criminal Code (Canada), the Youth Criminal Justice Act (Canada) or an Act of the Legislature asks to communicate with the Advocate, the person in charge of the facility shall immediately forward the request to the Advocate.
(2) Notwithstanding any other Act, where a child or youth in a facility referred to in subsection (1) writes a letter addressed to the Advocate, the person in charge of the facility shall immediately forward the letter to the Advocate without opening it.
14 (1) The Advocate may, in the Advocate's discretion, refuse to or cease to review, investigate or provide advocacy services in relation to a petition in the following circumstances:
(a) an adequate remedy or right of appeal already exists, regardless of whether the petitioner has availed himself or herself of the remedy or right of appeal;
(b) the petition is trivial, frivolous, vexatious or not made in good faith;
(c) having regard to all the circumstances of the case, further investigation or review is unnecessary;
(d) the petition relates to a decision, recommendation, act or omission that the petitioner has had knowledge of for more than one year before making the petition;
(e) the petitioner does not have a sufficient personal interest in the matter; or
(f) upon a balance of convenience between the public interest and the person aggrieved, the Advocate is of the opinion that the petition should not be investigated or reviewed.
(2) Where the Advocate decides not to act or to cease acting in relation to a petition, the Advocate shall inform the petitioner and any other interested person of the decision and may provide reasons.
(3) Notwithstanding clause (1)(e), the Advocate shall not, due only to a lack of sufficient personal interest on the part of the petitioner, refuse to investigate or review any matter forwarded to the Advocate by
(b) a member of the Assembly; or
15 For the purpose of this Act, the Advocate has all the rights, powers, privileges and immunities of a commissioner appointed under the Public Inquiries Act.
16 Before reviewing or investigating a petition, or before conducting a review or an investigation of a department's services, the Advocate shall inform the chief officer of the department affected by the Advocate's intention to conduct the review or investigation.
17 (1) An investigation under this Act must be conducted in private.
(2) Subject to this Act, the Advocate may hear or obtain information from any person and may make inquiries.
(3) The Advocate may hold hearings under this Act, but no person is entitled as of right to be heard by the Advocate.
(4) Where, during an investigation or review, the Advocate is satisfied that there is prima facie proof that a decision or recommendation made, an act done or omitted or a procedure used with respect to a matter of administration by a department or an employee of a department caused a grievance or gave cause for a grievance, the Advocate shall advise the chief officer or the employee, as the case may be, and shall give the chief officer or employee an opportunity to be heard.
(5) A person appearing at a hearing under this Section is entitled to be represented by counsel.
18 (1) The Advocate may at any time during or after an investigation or review consult any member of the Executive Council who is concerned in the matter.
(2) On the request of a member of the Executive Council in relation to an investigation or review, or in any case where an investigation or review relates to a recommendation made to a member of the Executive Council, the Advocate shall consult the member after making the investigation or review and before forming a final opinion.
19 Where, during or after an investigation or review, the Advocate is of the opinion that there is evidence of a breach of duty or misconduct by a chief officer or an employee of a department, the Advocate shall refer the matter to the minister of the department.
20 (1) For the purpose of this Act, the Advocate may enter upon any premises occupied by a department and, subject to this Section, carry out an investigation or review within the jurisdiction of the Advocate.
(2) Before entering a premises under subsection (1), the Advocate shall notify the chief officer of the department of the Advocate's intention to do so.
21 (1) The Advocate shall inform the petitioner in the manner and at the time the Advocate considers appropriate of the result of an investigation or review.
(2) Subject to this Act and any rules made by the regulations, the Advocate may regulate the Advocate's own procedure.
22 (1) Where, after conducting an investigation or review of a department's services, the Advocate makes a recommendation to the chief officer, the Advocate may request that the chief officer notify the Advocate within a specified period of the steps that the chief officer has taken or proposes to take to give effect to the recommendation.
(2) Where, after the period specified under subsection (1), the chief officer does not act upon the recommendation of the Advocate, refuses to act on it or acts in a manner unsatisfactory to the Advocate, the Advocate may send a report respecting the recommendation to the Governor in Council and, after doing so, may report on the matter to the Assembly.
(3) The Advocate shall include in a report made under subsection (2) a copy of any response provided by the chief officer respecting the Advocate's recommendation.
(4) Where the Advocate makes a recommendation under subsection (1) and the chief officer does not act on the recommendation to the Advocate's satisfaction, the Advocate shall inform the petitioner of the recommendation and may include any additional comments.
23 No proceeding of the Advocate is void for want of form and, except on the ground of lack of jurisdiction, no proceedings of the Advocate may be challenged, reviewed, quashed or called into question in any court.
24 (1) The Advocate shall report annually to the Assembly on the exercise of the Advocate's functions and duties under this Act.
(2) In the interest of children and youth, the public, a department or any other person, the Advocate may publish a report relating generally to the exercise and performance of the Advocate's functions and duties under this Act or to a particular case investigated by the Advocate, regardless of whether the matter to be dealt with in the report has been the subject of an annual report made to the Assembly under subsection (1).
(3) In a report made by the Advocate under this Act, the Advocate shall not make any finding or comment that is adverse to any person unless the person has been given an opportunity to be heard.
(4) The Advocate shall not include the name of a child or youth in a report the Advocate makes under subsection (1) or (2) unless the Advocate has first obtained the consent of the child or youth and the child's or youth's parent or guardian.
25 (1) The Governor in Council may make regulations
(a) respecting circumstances that give rise to a conflict of interest;
(b) establishing committees to advise the Advocate on matters affecting children and youth;
(c) respecting the remuneration of members of any committee established under this Act;
(d) respecting forms for the purpose of this Act;
(e) respecting any matter or thing the Governor in Council considers necessary or advisable to effectively carry out the intent and purpose of this Act.
(2) The exercise by the Governor in Council of the authority contained in subsection (1) is a regulation within the meaning of the Regulations Act.
26 The money required for the purpose of this Act must be paid out of money appropriated for that purpose by the Legislature.
This page and its contents published by the Office of the Legislative Counsel, Nova Scotia House of Assembly, and © 2021 Crown in right of Nova Scotia. Created April 14, 2021. Send comments to legc.office@novascotia.ca.
