Bill C-701

2nd Session, 41st Parliament,

62-63-64 Elizabeth II, 2013-2014-2015

house of commons of canada

BILL C-701

An Act to establish the Office of the Commissioner for Children and Young Persons in Canada

Whereas the true measure of a nation’s standing is how well it attends to its children, including their health, safety, material security, education and socialization, as well as their sense of being loved, valued, and included in the families and societies into which they are born;

Whereas Canada, by ratifying the United Nations Convention on the Rights of the Child, recognizes the right of every child to a standard of living adequate for his or her physical, mental, spiritual, moral and social development;

Whereas Canada, by ratifying that Convention, recognizes the right of every child to have his or her best interests be given primary consideration in all actions concerning him or her;

And whereas Canada, by ratifying that Convention, recognizes the right of every child to freely express his or her own views on all matters affecting him or her and to have those views be given due weight in accordance with his or her age and maturity;

Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

1. This Act may be cited as the Commissioner for Children and Young Persons in Canada Act.

INTERPRETATION

2. The definitions in this section apply in this Act.

“child” or “young person” means a person who is under the age of 18 years.

“Commissioner” means the Commissioner for Children and Young Persons in Canada appointed under section 4.

“Convention” means the United Nations Convention on the Rights of the Child and its optional protocols on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography, as amended from time to time.

“department” has the meaning assigned by paragraph (a) of the definition “department” in section 2 of the Financial Administration Act, and includes the Minister responsible for the department and any person acting on behalf of the Minister.

“Minister” means the Minister designated by the Governor in Council for the purposes of this Act.

PURPOSE OF ACT

3. The purpose of this Act is to establish an independent statutory office of a Commissioner for Children and Young Persons in Canada.

OFFICE OF THE COMMISSIONER FOR CHILDREN AND YOUNG PERSONS IN CANADA

4. (1) On the recommendation of the Minister, the Governor in Council must, by commission under the Great Seal, appoint a Commis-sioner for Children and Young Persons in Canada after consultation with the leader of every recognized party in the Senate and House of Commons and approval of the appointment by resolution of the Senate and House of Commons.

(2) Before making a recommendation to the Governor in Council in accordance with subsection (1), the Minister must

(a) advertise the vacancy or prospective vacancy in a manner sufficient to enable suitably qualified individuals to apply for appointment;

(b) consult with those organizations or persons that, in the opinion of the Minister, have a special interest in the functions of the Commissioner, including organizations representing children; and

(c) ensure that the person who is recommended for appointment is suitably qualified in accordance with criteria established by the Minister, including proven experience in and commitment to promoting the rights of children and young persons.

(3) Subject to this section, the Commissioner holds office during good behaviour for a term of five years, but may be removed for cause by the Governor in Council at any time on address of the Senate and House of Commons.

(4) The Commissioner, on the expiration of a first term of office, is eligible to be re-appointed for one further term not exceeding five years.

(5) In the event of the absence or incapacity of the Commissioner, or if that office is vacant, the Governor in Council may appoint any qualified person to hold that office in the interim for a term not exceeding six months, and that person, while holding office, is to be paid the salary or other remuneration and expenses that may be fixed by the Governor in Council.

5. (1) The Commissioner is to rank as and have all the powers of a deputy head of a department, must engage exclusively in the duties of the office of Commissioner under this Act or any other Act of Parliament and may not hold any other office under Her Majesty for reward or engage in any other employment for reward.

(2) The Commissioner is to be paid a salary equal to the salary of a judge of the Federal Court, other than the Chief Justice of that Court, and is entitled to be paid reasonable travel and living expenses incurred in the performance of his or her duties under this Act or any other Act of Parliament.

(3) The Commissioner is deemed to be employed in the public service for the purposes of the Public Service Superannuation Act.

(4) The Commissioner is deemed to be employed in the federal public administration for the purposes of the Government Employees Compensation Act and any regulations made under section 9 of the Aeronautics Act.

STAFF

6. (1) The officers and employees that are necessary to enable the Commissioner to perform the duties and functions of the Commissioner under this Act or any other Act of Parliament are to be appointed in accordance with the Public Service Employment Act.

(2) The Commissioner may engage on a temporary basis the services of persons having technical or specialized knowledge of any matter relating to his or her work to advise and assist him or her in the performance of his or her duties and functions under this Act or any other Act of Parliament and, with the approval of the Treasury Board, may fix and pay the remuneration and expenses of such persons.

DELEGATION

7. The Commissioner may authorize any person to exercise or perform, subject to such restrictions or limitations as the Commissioner may specify, any of the powers, duties or functions of the Commissioner under this Act except

(a) the power to delegate under this section; and

(b) the powers, duties or functions set out in section 8.

MANDATE

8. (1) The mandate of the Commissioner is

(a) to advocate at a national level for the needs, views and rights of children and young persons;

(b) to develop and conduct information programs to foster public understanding and recognition of the Convention, the role and activities of the Commissioner and the status of the rights and well-being of children and young persons in Canada;

(c) to monitor the development and application of laws affecting children and young persons;

(d) to promote, monitor and report on the effective implementation of Canada's obligations under the Convention that are within the legislative authority of Parliament, particularly as they relate to the following articles of the Convention:

(i) non-discrimination in the applicability of children's rights (article 2),

(ii) the primacy of the consideration of the child's best interests (article 3, paragraph 1),

(iii) the child's right to survival and development (article 6, paragraph 2), and

(iv) the child's right to participation in decision-making (article 12);

(e) to promote greater participation in Canadian society by children and young persons;

(f) to review and conduct an impact assessment of all legislation, regulations, rules, orders, by-laws and other instruments within the legislative authority of Parliament on the rights of children and young persons and — in an annual or special report made under section 11 if deemed appropriate by the Commissioner — to include reference to and comment on any provision of those instruments that, in the Commissioner’s opinion, is inconsistent with the Convention;

(g) to monitor and report on the implementation of the Convention by departments in respect of services and programs affecting children and young persons and their rights;

(h) to consider any recommendations, suggestions and requests concerning the rights of children and young persons that the Commissioner receives from any source, including a child or young person and, if deemed appropriate by the Commissioner, to include reference to and comment on those recommendations, suggestions or requests in an annual or special report made under section 11;

(i) to receive complaints concerning the abuse of the rights of a child or a young person from any source, including a child or a young person, and, if deemed appropriate by the Commissioner, to include reference to and comment on any such complaint in an annual or special report made under section 11;

(j) to review any report to any international organization on behalf of the Government of Canada in respect of the Convention or the rights of children and young persons and, if deemed appropriate by the Commissioner, to refer to and comment on that report in an annual or special report made under section 11;

(k) to maintain close liaison with similar bodies or authorities in the provinces in order to foster common policies and practices and to avoid conflicts respecting the handling of matters in cases of overlapping jurisdiction;

(l) to encourage collaboration and consultation with children and young persons and with organizations and service providers that have a mandate to protect their rights; and

(m) to engage with authorities or bodies in other countries that have a similar mandate for the purpose of fostering common policies and practices.

(2) In addition to the mandate set out in subsection (1), the Commissioner must carry out or cause to be carried out

(a) the studies or inquiries that may be referred to the Commissioner by a committee of the Senate or House of Commons, and which relate to the Convention or the rights of children and young persons or to the systemic application of federal policies, services or programs that may affect the rights of children and young persons, and report to that committee; and

(b) the studies or inquiries that may be referred to the Commissioner by the Minister of Justice, and which relate to the Convention or the rights of children and young persons or to the systemic application of federal policies, services or programs that may affect the rights of children and young persons, and report to the Minister of Justice from time to time.

(3) The Minister of Justice must cause each report prepared by the Commissioner under paragraph (2)(b) to be laid before Parliament on any of the first 15 days that either House of Parliament is sitting after the report is received by the Minister.

ACCESS TO GROUPS OF CHILDREN

9. The Commissioner or any person acting on behalf of or under the direction of the Commissioner is to be permitted access to groups of children and young persons as necessary to carry out the Commissioner’s duties and functions under section 8.

ACCESS TO INFORMATION

10. (1) The Commissioner is entitled to free access at all convenient times to information that relates to the fulfilment of his or her responsibilities and he or she is also entitled to require and receive from departments and their employees any information, reports and explanations that he or she considers necessary for that purpose.

(2) In order to carry out his or her duties more effectively, the Commissioner may station in any department any person employed in his or her office, and the department must provide the necessary office accommodation for such a person.

(3) The Commissioner may examine any person on oath on any matter pertaining to a systemic inquiry into matters contained in his or her mandate and, for the purposes of such an inquiry, the Commissioner may exercise all the powers of a commissioner appointed under Part II of the Inquiries Act.

REPORTS

11. (1) The Commissioner must, within three months after December 31 in each year, prepare and submit to Parliament a report on his or her activities for that year, including his or her assessment of the implementation of the Convention by the Government of Canada.

(2) The Commissioner may, at any time, prepare and submit to Parliament a special report referring to and commenting on any matter within the scope of his or her powers, duties and functions if, in his or her opinion, the matter is of such urgency or importance that a report on it should not be deferred until the time provided for submission of his or her next annual report under subsection (1).

(3) Every report under this section is to be made by being transmitted to the Speaker of the Senate and to the Speaker of the House of Commons for tabling in each House.

(4) The Government of Canada must, within 90 days after a report referred to in subsec-tion (1) or (2) is submitted to Parliament, submit a comprehensive written response to the report, including a specific response to the findings of any impact assessment on the rights of children and young persons that are contained in the report.

GENERAL PROVISIONS

12. The Commissioner and every person acting on behalf or under the direction of the Commissioner who receives or obtains information relating to any inquiry under this Act or any inquiry or investigation under any other Act of Parliament must, with respect to access to and the use of that information, satisfy any security requirements applicable to, and take any oath of secrecy required to be taken by, persons who normally have access to and use of that information.

13. Subject to this Act, the Commissioner and every person acting on behalf or under the direction of the Commissioner may not disclose any information that comes to their knowledge in the performance of their duties and functions under this Act or any other Act of Parliament.

14. (1) The Commissioner may disclose or may authorize any person acting on behalf or under the direction of the Commissioner to disclose information

(a) that, in the opinion of the Commissioner, is necessary to

(i) carry out an inquiry under this Act, or

(ii) establish the grounds for findings and recommendations contained in any report under this Act; or

(b) in the course of a prosecution for an offence under this Act, of a prosecution for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Act, of a review before the Federal Court under this Act or of an appeal from such a review.

(2) The Commissioner may disclose to the Attorney General of Canada information relating to the commission of an offence against a law of Canada or a province if, in the Commis-sioner’s opinion, there is evidence of such an offence.

15. The Commissioner or any person acting on behalf or under the direction of the Com-missioner is not a competent or compellable witness, in respect of any matter coming to the knowledge of the Commissioner or that person as a result of performing any duties or functions under this Act during an investigation, in any proceedings other than

(a) a prosecution for an offence under this Act;

(b) a prosecution for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Act;

(c) a review before the Federal Court; or

(d) an appeal from the review referred to in paragraph (c).

16. (1) No criminal or civil proceedings lie against the Commissioner, or against any person acting on behalf or under the direction of the Commissioner, for anything done, reported or said in good faith in the course of the exercise or performance or purported exercise or perform- ance of any power, duty or function of the Commissioner under this Act.

(2) For the purposes of any law relating to libel or slander,

(a) anything said, any information supplied or any document or thing produced in good faith in the course of an investigation carried out by or on behalf of the Commissioner under this Act is privileged; and

(b) any report made in good faith by the Commissioner under this Act and any fair and accurate account of the report made in good faith for the purpose of news reporting is privileged.

OFFENCES

17. (1) No person may obstruct the Commissioner or any person acting on behalf or under the direction of the Commissioner in the performance of the Commissioner’s duties and functions under this Act.

(2) Every person who contravenes this section is guilty of an offence and liable on summary conviction to a fine not exceeding $1,000.

18. (1) Within five years after the day on which this section comes into force, the Minister must conduct a review of the provisions of this Act and make available to the public a written report respecting the review.

(2) Subsequent reviews must be conducted and a report on each review must be made available to the public within five years after the day on which the report on the previous review was made available to the public.

(3) The Minister must inform the public of the date on which a review is to begin and the provisions of the Act that are to be the principal focus of the review.

CONSEQUENTIAL AMENDMENTS

Access to Information Act

19. Subsection 16.1(1) of the Access to Information Act is amended by adding the following after paragraph (b):

20. Schedule I to the Act is amended by adding the following in alphabetical order under the heading “OTHER GOVERNMENT INSTITUTIONS”:

Financial Administration Act

21. Schedule I.1 to the Financial Administration Act is amended by adding the following in alphabetical order in column I:

and a corresponding reference in column II to “Minister of Justice”.

22. Schedule IV to the Act is amended by adding the following in alphabetical order:

Privacy Act

23. The schedule to the Privacy Act is amended by adding the following in alphabetical order under the heading “OTHER GOVERNMENT INSTITUTIONS”:

Public Servants Disclosure Protection Act

24. Schedule 2 to the Public Servants Disclosure Protection Act is amended by adding the following in alphabetical order: