The following electronic version is for informational purposes only.
The printed version remains the official version.
MR. JORDAN STURDY
This Bill:
HIS MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:
Part 1 – Interpretation and Application
1 (1) In this Act:
"adoption director" means a person designated as a director under the Adoption Act;
"apprehension order" means an order for apprehension and detainment made under section 9 (1) [apprehension order];
"child" means a person under 19 years of age;
"child and family services director" means a person designated as a director under the Child, Family and Community Service Act;
"child at risk of serious harm" means a child
(a) who is or is likely to be commercially sexually exploited, or
(b) who is suffering from severe drug misuse or addiction;
"contraband" means any of the following:
(a) a drug;
(b) a weapon, any component of a weapon or ammunition for a weapon, or anything that is designed to kill, injure or disable or is altered so as to be capable of killing, injuring or disabling;
(c) an explosive or bomb, or any component of an explosive or bomb;
(d) if possessed without prior authorization, any currency;
(e) if possessed without prior authorization, tobacco leaves or any products produced from tobacco in any form or for any use;
(f) if possessed without prior authorization, any other substance or thing that, in the opinion of the safe care director with care and control of a child, may threaten the management, operation, discipline or security of, or safety of persons in, the safe care facility in which the child is detained;
"court" means the Provincial Court of British Columbia;
"designated representative" has the same meaning as in the Child, Family and Community Service Act;
"drug" means a substance which has a physiological effect when ingested or otherwise introduced into the body, including
(a) alcohol, or
(b) a substance, other than a tobacco product,
(i) whose use is controlled by law, or
(ii) that is used in a manner or quantity not intended by the manufacturer of the substance;
"First Nation" has the same meaning as in the Child, Family and Community Service Act;
"First Nation child" means a child
(a) who is a member or is entitled to be a member of a First Nation, or
(b) who an Indigenous authority confirms in writing is a child belonging to a First Nation;
"health care" means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health related purpose, and includes a course of health care;
"Indigenous authority" has the same meaning as in the Child, Family and Community Service Act;
"Indigenous child" means a child
(a) who is a First Nation child,
(b) who is a Nisga'a child,
(c) who is a Treaty First Nation child,
(d) who is under 12 years of age and has a biological parent who
(i) is of Indigenous ancestry, including Métis and Inuit, and
(ii) considers themselves to be an Indigenous person,
(e) who is 12 years of age or over, of Indigenous ancestry, including Métis and Inuit, and considers themselves to be an Indigenous person, or
(f) who an Indigenous authority confirms in writing is a child belonging to an Indigenous community;
"Indigenous governing body" has the same meaning as in the Declaration on the Rights of Indigenous Peoples Act;
"Indigenous representative" means, in respect of an Indigenous child who is the subject of an application or order under this Act,
(a) a designated representative of a First Nation, if the child is registered or entitled to be registered as a member of that First Nation,
(b) a designated representative of the Nisga'a Lisims Government, if the child is a Nisga'a child,
(c) a designated representative of a Treaty First Nation, if the child is a Treaty First Nation child of that Treaty First Nation, or
(d) a designated representative of an Indigenous community that has been identified by the child, if the child is neither a Nisga'a child nor a Treaty First Nation child, and is neither a member nor entitled to be a member of a First Nation, but is an Indigenous child;
"less intrusive measures" includes, without limitation, the following voluntary services:
(a) outreach services;
(b) emergency shelters and safe housing;
(c) counselling;
(d) day treatment programs;
(e) detoxification and residential addiction treatment programs;
(f) residential care and treatment programs;
(g) supportive housing;
"Nisga'a child" has the same meaning as in the Nisga'a Final Agreement Act;
"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 Act;
"Ombudsperson" means the Ombudsperson appointed under the Ombudsperson Act;
"parent", in respect of a child, means a person who is determined to be a parent of the child in accordance with Part 3 of the Family Law Reform Act and also includes a person to whom guardianship or custody of the child has been granted by a court of competent jurisdiction or by an agreement and a person with whom the child resides and who stands in place of the child's parent or guardian but does not include
(a) an adoption director,
(b) a child and family services director,
(c) a caregiver within the meaning of the Child, Family and Community Service Act, or
(d) a safe care director;
"police officer" means a person
(a) who is a provincial constable or municipal constable under the Police Act or who has the powers of a provincial constable or municipal constable,
(b) who is a constable under the Police Act other than a constable referred to in paragraph (a) and who is within a class of constables prescribed by a regulation made under section 54 (2) (a), or
(c) who is a member of the military police of the Canadian Armed Forces;
"private premises" means any part of a structure or vehicle, including a railway vehicle, vessel, aircraft and trailer, that is used as a personal residence by the owner, or by an occupier with or without the consent of the owner;
"representative" means the representative appointed under the Representative for Children and Youth Act;
"safe care director" means a director designated under section 38 (1);
"safe care facility" means a facility established or designated under section 40 (a) [other powers of safe care director];
"safe care order" means, as applicable,
(a) an apprehension order, or
(b) a stabilization and assessment order;
"severe drug misuse or addiction" means, in respect of a child, persistent drug use that is causing or has a high risk of causing serious physical or psychological harm to the child;
"stabilization and assessment order" means an order for detainment made under section 13 (3) (c) and includes any extension of that order.
(2) For the purposes of paragraph (a) of the definition of "child at risk of serious harm" in subsection (1), a child is, or is likely to be, commercially sexually exploited if the child is engaging in, or is likely to engage in, sexual activity for a commercial purpose for the financial or other gain of the child or another person and, without limitation, this includes
(a) engaging in prostitution,
(b) engaging in any sexually explicit activity in an adult entertainment facility, massage parlour or other premises, including private premises,
(c) providing escort services for an escort service, and
(d) appearing in sexually explicit or pornographic images.
2 (1) No person may apply for a safe care order in respect of a child who is under 12 years of age without the prior written approval of the minister or the minister's delegate.
(2) A safe care order ceases to have effect on the date on which the child to whom the order applies becomes 19 years of age.
3 (1) Where there is a reference in this Act to the best interests of the child, all relevant factors must be considered in determining the child's best interests, which may include the child's
(a) health and safety,
(b) present and future well-being,
(c) physical and emotional needs and level of development,
(d) cultural, racial, linguistic and religious heritage, and
(e) views, as expressed by the child.
(2) If the child is an Indigenous child, the importance of preserving the child's cultural identity must be considered in determining the child's best interests.
4 When determining whether to make an order under this Act, the court must consider all of the following:
(a) the best interests of the child;
(b) whether the child is able or willing to take steps that would sufficiently reduce the risk to the child's health or safety;
(c) that decisions of the court should be made without delay, wherever possible.
5 In order for a child to be detained under this Act,
(a) an apprehension order must be made under section 9 (1), or
(b) a stabilization and assessment order must be made under section 13 (3) (e) or extended under section 14 (6) (e).
Part 2 – Safe Care and Related Orders
Division 1 – Apprehension Order
6 Subject to section 7, if the applicant reasonably believes that a child is at risk of serious harm, and no less intrusive measure is available or adequate to sufficiently reduce any risk to the child's health and safety, an application for an order to apprehend a child may be submitted by
(a) a parent of the child,
(b) an adoption director, in respect of a child under the guardianship of that director,
(c) a child and family services director, in respect of a child in the care, custody or guardianship of that director under the Child, Family and Community Service Act,
(d) a person who has custody of the child pursuant to a court order made under section 54.01 (5) or 54.1 of the Child, Family and Community Service Act,
(e) a person appointed as a guardian of the child under section 51 (1) (a), 53 or 55 of the Family Law Act, or
(f) a safe care director.
7 (1) Before applying for an order to apprehend a child under section 6, a parent, adoption director or child and family services director must, on application, obtain leave from the court to make the application for an apprehension order.
(2) Before applying to obtain leave from the court under subsection (1), a parent must discuss with a safe care director
(a) the child's circumstances, and
(b) the services that are available to assess and stabilize the child, including involuntary admission under the Mental Health Act.
(3) The court must determine an application for leave under subsection (1) as soon as practicable and in any event no later than 24 hours after the application for leave is submitted.
8 (1) An apprehension order hearing must be held no later than 3 days after an application for an apprehension order is submitted, and the applicant must attend the hearing.
(2) At least 24 hours before the date set for an apprehension order hearing, the applicant must give written notice to the following persons of the time, date and place of the hearing:
(a) a safe care director;
(b) each parent of the child, unless the child is
(i) in the guardianship of an adoption director,
(ii) in the care, custody or guardianship or under the supervision of a child and family services director,
(iii) in the custody of a person pursuant to a court order made under section 54.01 (5) or 54.1 of the Child, Family and Community Service Act, or
(iv) in the guardianship of a person appointed as a guardian of the child under section 51 (1) (a), 53 or 55 of the Family Law Act;
(c) an adoption director, if the child is in the guardianship of that director;
(d) a child and family services director, if the child is in the care, custody or guardianship or under the supervision of that director under the Child, Family and Community Service Act;
(e) a person who has custody of the child pursuant to a court order made under section 54.01 (5) or 54.1 of the Child, Family and Community Service Act;
(f) a guardian of the child appointed under section 51 (1) (a), 53 or 55 of the Family Law Act; or
(g) an Indigenous representative of the child, if the child is an Indigenous child.
(3) Every person who is to be provided with information under subsection (2) is entitled to be a party at the apprehension order hearing.
9 (1) If, at the conclusion of the apprehension order hearing, the court is satisfied that there are reasonable grounds to believe the child is a child at risk of serious harm, and no less intrusive measure is available or adequate to sufficiently reduce the risk to the child's health or safety, the court must make an order requiring a safe care director to
(a) apprehend the child and transport the child to a safe care facility, and
(b) detain the child in a safe care facility until the conclusion of a stabilization and assessment order hearing under section 13.
(2) Subject to subsection (3), an order made under subsection (1) expires 30 days after the date the order is made.
(3) If the child is apprehended before the expiration date referred to in subsection (2),
(a) the apprehension order expires on the earlier of
(i) the date on which the stabilization and assessment order hearing is concluded, and
(ii) the date that is 4 days after the child is apprehended, and
(b) if the date referred to in paragraph (a) (ii) is the earlier date, the safe care director with care and control of the child must, without further order of the court, discharge the child on that date.
Division 2 – Duties on Apprehension
10 (1) On apprehending a child who is subject to an apprehension order under section 9 [apprehension order], the person who apprehends the child must, as soon as practicable, inform the child of
(a) the reasons for the child's apprehension, and
(b) the child's right to retain and instruct counsel without delay.
(2) After the child is detained in a safe care facility, the safe care director with care and control of the child must
(a) inform the child, as soon as practicable,
(i) of the time, date and place of the stabilization and assessment order hearing, and
(ii) that the child may participate, with or without counsel, in the stabilization and assessment order hearing,
(b) provide the child with information about retaining counsel, and
(c) provide the child with a reasonable opportunity to consult with counsel.
(3) If information under subsection (1) or (2) (a) (i) has been provided orally to the child, the safe care director must, as soon as practicable, provide that information to the child in writing.
11 (1) As soon as practicable after a child is detained in a safe care facility, the safe care director must provide the persons referred to in subsection (2) with the following information in writing:
(a) that the child has been apprehended and detained under this Act;
(b) the reasons for the apprehension;
(c) the address and telephone number of the safe care facility in which the child is detained;
(d) the time, date and place of the stabilization and assessment order hearing to be held under section 13.
(2) The following persons must be informed under subsection (1):
(a) each parent, unless the child is
(i) in the guardianship of an adoption director,
(ii) in the care, custody or guardianship or under the supervision of a child and family services director,
(iii) in the custody of a person pursuant to a court order made under section 54.01 (5) or 54.1 of the Child, Family and Community Service Act, or
(iv) in the guardianship of a person appointed as a guardian of the child under section 51 (1) (a), 53 or 55 of the Family Law Act;
(b) an adoption director, if the child is in the guardianship of that director;
(c) a child and family services director, if the child
(i) is in the care, custody or guardianship or under the supervision of that director under the Child, Family and Community Service Act, or
(ii) was, immediately prior to the apprehension of the child, in the care, custody or guardianship or under the supervision of that director under the Child, Family and Community Service Act;
(d) a person who has custody of the child pursuant to a court order made under section 54.01 (5) or 54.1 of the Child, Family and Community Service Act;
(e) a guardian of the child appointed under section 51 (1) (a), 53 or 55 of the Family Law Act; or
(f) an Indigenous representative of the child, if the child is an Indigenous child.
(3) A person who is to be provided with information under subsection (1) is entitled to be a party at the stabilization and assessment order hearing.
12 A safe care director who has care and control of a child who is subject to an apprehension order must ensure that a medical practitioner or prescribed health care provider examines the child as soon as practicable after the child's apprehension and in any event not later than 24 hours after the child is detained at a safe care facility.
Division 3 – Stabilization and Assessment Order
13 (1) As soon as practicable and in any event no later than 48 hours after the apprehension of a child who is subject to an apprehension order made under section 9 (1), the safe care director who has care and control of the child must appear before the court for a stabilization and assessment order hearing.
(2) At the stabilization and assessment order hearing, the safe care director must present to the court a written report that includes
(a) a description of the child's current health, and
(b) an assessment of the risk to the child's health or safety if the child is not detained.
(3) At the conclusion of the stabilization and assessment order hearing, the court must make one of the following orders:
(a) an order requiring the safe care director to discharge the child unless
(i) the child is in the care, custody or guardianship of an adoption director or a child and family services director, or
(ii) a child and family services director is authorized to have care and control of the child at the time the discharge is to take effect;
(b) an order requiring the safe care director to discharge the child to the parent apparently entitled to custody of the child unless
(i) the child is in the care, custody or guardianship of an adoption director or a child and family services director, or
(ii) a child and family services director is authorized to have care and control of the child at the time the discharge is to take effect;
(c) an order requiring the safe care director to discharge the child to an adoption director if the child is in the guardianship of the adoption director;
(d) an order requiring the safe care director to discharge the child to a child and family services director if
(i) the child is in the care, custody or guardianship or under the supervision of the child and family services director, or
(ii) the child and family services director is authorized to have care and control of the child at the time the discharge is to take effect;
(e) a stabilization and assessment order authorizing the safe care director who has care and control of the child to continue to detain the child for a period of up to 15 days from the date the child was apprehended, if the court is satisfied there are reasonable grounds to believe that, without the child being detained,
(i) the child would continue to be a child at risk of serious harm, and
(ii) no less intrusive measure is available or adequate to sufficiently reduce the risk to the child's health or safety.
(4) On the expiration date of the stabilization and assessment order, the safe care director must discharge the child in accordance with a community service plan made under section 30.
14 (1) A safe care director may, before the expiration of a stabilization and assessment order, apply to the court for an extension of the stabilization and assessment order.
(2) At least 2 days before the date set for a hearing to extend the stabilization and assessment order, the safe care director must provide written notice of the time, date and place of the hearing to
(a) the child, and
(b) the persons referred to in section 11 (2) (a) to (d) [informing persons of a child's detention].
(3) A person who must be provided with notice under subsection (2) is entitled to be a party at the hearing to extend the stabilization and assessment order.
(4) The notice referred to in subsection (2) must include a copy of the written report referred to in subsection (5), unless the person entitled to notice agrees to receive a copy of the report at a later date.
(5) At the hearing to extend the stabilization and assessment order, the safe care director must present to the court a written report that includes
(a) a description of the child's current health, and
(b) an assessment of the risk to the child's health or safety if the child is not detained.
(6) At the conclusion of the hearing to extend the stabilization and assessment order, the court must make one of the following orders:
(a) an order requiring the safe care director to discharge the child, unless
(i) the child is in the care, custody or guardianship of an adoption director or a child and family services director, or
(ii) a child and family service director is authorized to have care and control of the child at the time the discharge is to take effect;
(b) an order requiring the safe care director to discharge the child to the parent apparently entitled to custody of the child unless
(i) the child is in the care, custody or guardianship of an adoption director or a child and family services director, or
(ii) a child and family services director is authorized to have care and control of the child at the time the discharge is to take effect;
(c) an order requiring the safe care director to discharge the child to an adoption director if the child is in the guardianship of the adoption director;
(d) an order requiring the safe care director to discharge the child to a child and family services director if
(i) the child is in the care, custody or guardianship of that director, or
(ii) that director is authorized to have care and control of the child at the time the discharge is to take effect;
(e) an order to extend the stabilization and assessment order and authorize the safe care director who has care and control of the child to further detain the child for a period of up to 30 days if the court is satisfied that, without the child being detained,
(i) the child would continue to be a child at risk of serious harm, and
(ii) no less intrusive measure is available or adequate to sufficiently reduce the risk to the child's health or safety.
(7) If the court makes an order under subsection (6) (e), the period in respect of which the stabilization and assessment order is extended commences on the date the stabilization and assessment order would otherwise expire.
(8) On the expiration of the period in respect of which the stabilization and assessment order is extended, the safe care director must discharge the child in accordance with a community service plan made under section 30.
(9) If an application to extend a stabilization and assessment order is made under subsection (1) and the stabilization and assessment order expires before the hearing to extend it is concluded,
(a) section 13 (4) [expiration of stabilization and assessment order] does not apply;
(b) the stabilization and assessment order continues in effect until the earlier of the following:
(i) the date on which the hearing to extend the stabilization and assessment order concludes,
(ii) the date that is 7 days after the expiration of the stabilization and assessment order; and
(c) if the date set out in paragraph (b) (ii) is the earlier date, the safe care director must, without further order of the court, discharge the child in accordance with a community service plan made under section 30 on the date set out in paragraph (b).
(10) The court may extend a stabilization and assessment order under this section only once.
Division 4 – Warrants and Police Assistance
15 (1) On application by a safe care director, the court may issue a warrant, with or without conditions, authorizing a police officer, safe care director or person specified in the warrant to enter the private premises specified in the warrant for the purpose of apprehending a child who is
(a) subject to an apprehension order made under section 9 (1), or
(b) absent from a safe care facility without permission in contravention of section 32.
(2) In a warrant referred to in subsection (1), the court may authorize only a police officer to use force, if necessary, to enter the private premises specified in the warrant.
(3) In executing a warrant issued under this section,
(a) a police officer must not use force unless the use of force is specifically authorized in the warrant,
(b) if specifically authorized to use force, a police officer may only use reasonable force, and
(c) a police officer, a safe care director or the person specified in the warrant must not enter the private premises unless satisfied that the child is, or is likely to be, present on the premises.
16 (1) A safe care director may request a police officer to accompany and assist the safe care director in carrying out the safe care director's duties under this Act.
(2) A police officer must comply with a request made under subsection (1).
17 If a safe care director applies for a safe care order in respect of a child, the safe care director is not required to prove
(a) the child's name, if the director provides a description of the child that is satisfactory to the court, and
(b) the age of the child, if the director provides evidence satisfactory to the court that the child is, or reasonably appears to be, under 19 years of age.
18 (1) Subject to subsection (4) but despite any other provision of this Act, an applicant under section 6 [apprehension order], section 13 [stabilization and assessment order] or section 14 [extension of stabilization and assessment order], must disclose the following information fully and in a timely manner to the persons referred to in subsection (2) or (3), as applicable:
(a) the reasons for requesting the order;
(b) the evidence that the applicant intends to present at the hearing.
(2) In the case of an application under section 6, the persons who are to be informed are the persons referred to in subsection 8 (2).
(3) In the case of an application under section 13 or 14, the persons who are to be informed are the persons referred to in subsection 11 (2).
(4) The duty to disclose under subsection (1) is subject to any claim of privilege.
(5) Evidence may be excluded from a hearing under this Part if a reasonable effort was not made to disclose the evidence in accordance with this section.
19 On application, the court may dispense with the requirement of
(a) an applicant to provide notice under section 8 (2) [apprehension order hearing], or
(b) a safe care director to provide
(i) information under section 11 (2) [informing persons other than the child of a stabilization and assessment order hearing and other matters], or
(ii) notice under section 14 (2) [extending a stabilization and assessment order],
if the applicant or safe care director, as the case may be,
(c) is unable to provide the information or notice despite making all reasonable efforts to do so, or
(d) reasonably believes that providing the information or notice would not be in the best interests of the child.
20 In a proceeding under this Part, the court may
(a) accept evidence given by affidavit, and
(b) admit as evidence
(i) any hearsay evidence that the court considers reliable, and
(ii) any oral or written statement or report that the court considers relevant, including a transcript, exhibit or other document or material submitted in respect of a previous civil or criminal proceeding.
21 (1) An order made in the Provincial Court under any of the following sections may be appealed to the Supreme Court by the child who is the subject of the order:
(a) section 9 (1) [apprehension order];
(b) section 13 (3) (e) [stabilization and assessment order];
(c) section 14 (6) (a) to (d) [extending a stabilization and assessment order].
(2) An order made in the Provincial Court under either of the following sections may be appealed to the Supreme Court by a safe care director:
(a) section 13 (3) [stabilization and assessment order];
(b) section 14 (6) (a) to (d) [extending a stabilization and assessment order].
(3) A refusal of the Provincial Court to make an order under section 9 (1) [apprehension order] may be appealed to the Supreme Court by the applicant for the order, if the applicant is a parent, or by a safe care director.
(4) The time limit for bringing an appeal
(a) under subsection (1), for an order made under section 9 (1) [apprehension order], is 30 days following the date on which the order was made,
(b) under subsection (1) or (2),
(i) for an order made under section 13 (3) [stabilization and assessment order], is 30 days following the date on which the order was made, and
(ii) for an order made under section 14 (6) [extending a stabilization and assessment order], is 30 days following the date on which the order was made, and
(c) under subsection (3), is 30 days following the date on which the refusal to make an order was issued.
(5) An appeal is initiated by
(a) filing a notice of appeal in a registry of the Supreme Court, and
(b) serving a copy of the notice of appeal on the parties to the proceeding in respect of which the order or refusal being appealed was made or issued.
(6) The rules of Court apply to an appeal under subsection (1), (2) or (3) to the extent that they are not inconsistent with this section.
(7) On application, the Supreme Court may suspend an order that is under appeal for the period of time and under the conditions the court considers appropriate.
(8) The Supreme Court must hear and determine an appeal under this section within 7 days after the appeal is initiated unless the order being appealed expires before the end of that period.
(9) After hearing an appeal of an order under this section, the Supreme Court may
(a) confirm, set aside or vary the order being appealed, and
(b) make any order that the Provincial Court could have made.
Division 1 – Rights of the Child
22 (1) The safe care director with care and control of a child must ensure that
(a) during the child's detainment under section 13 [stabilization and assessment order], the child is provided once, as soon as practicable after the order is made, and at least one additional time, with the information set out in subsection (2); and
(b) during the child's detainment under section 14 [extending a stabilization and assessment order], the child is provided with the information set out in subsection (2).
(2) The information that is to be provided under subsection (1) is
(a) the role of the representative and the Ombudsperson,
(b) the means by which the representative and the Ombudsperson may be contacted, and
(c) the right to request a review under section 43 of any decision of the safe care director made under this Act.
(3) On the request of a child who is detained in a safe care facility, the safe care director must assist the child in contacting the representative or the Ombudsperson or to request a review under section 43.
23 A child who is detained in a safe care facility has the following rights:
(a) to be fed, clothed and nurtured according to community standards and to be given the same quality of care as other children in the facility;
(b) to receive
(i) health care, if required, and
(ii) guidance and assistance to address the circumstances that led to the child's apprehension and detainment;
(c) to be informed about the child's community service plan made under section 30 and to participate in the development of that plan, according to the child's abilities;
(d) to be consulted and to express the child's views, according to the child's abilities, about significant decisions that may affect the child;
(e) to be provided with an interpreter if language or disability is a barrier to the child being consulted on significant decisions that may affect the child;
(f) to be informed of the standard of behaviour expected while in the safe care facility and of the consequences of not meeting those expectations;
(g) to be free from corporal punishment;
(h) to receive guidance and encouragement to maintain the child's cultural heritage;
(i) to be informed of the child's rights under this Act and the procedures available for enforcing those rights.
24 (1) Subject to subsection (2), nothing in this Act affects a child's right under section 17 of the Infants Act to consent to health care.
(2) Subsection (1) does not preclude or limit the application of section 29 of the Child, Family and Community Service Act to a child who is subject to a safe care order under this Act.
25 (1) Subject to Division 4 [Security Measures], a child who is detained in a safe care facility has the right to reasonable privacy and to possession of the child's personal belongings.
(2) A child who is detained in a safe care facility has the right to privacy during discussions with the following persons:
(a) the child's lawyer;
(b) the representative or the Ombudsperson, or the persons employed, appointed or retained by the representative or the Ombudsperson;
(c) a member of the Legislative Assembly, of the Parliament of Canada or of an Indigenous governing body;
(d) an adoption director or a child and family services director.
Division 2 – Powers and Duties of Safe Care Director
26 The safe care director who has care and control of a child must consider the best interests of the child in selecting a safe care facility in which to detain the child.
27 (1) At all times during the detainment of a child in a safe care facility, a safe care director has care and control of the child, and all rights and powers of care and control of a parent, adoption director or child and family services director over the child cease until the child is discharged.
(2) The safe care director with care and control of a child may transfer care and control of the child to another safe care director with the consent of the other safe care director.
(3) If a transfer occurs under subsection (2),
(a) the safe care director to whom custody and care of the child is transferred has the same rights, powers, duties and responsibilities as the safe care director who made the transfer, and
(b) the safe care director who made the transfer ceases to have any rights, powers, duties and responsibilities associated with the care and control of the child.
(4) Nothing in this section affects the legal guardianship of the child.
28 (1) The safe care director with care and control of a child may transport the child to a hospital or other facility in which health care services are provided if
(a) the child requires, or appears to require, emergency medical care, or
(b) a medical practitioner or prescribed health care provider has examined the child and determines that the child requires health care services beyond those that can be provided in a safe care facility.
(2) If a child is admitted to a hospital or other facility in which health care services are provided,
(a) a safe care order in respect of the child remains in effect, and
(b) the powers and duties of the safe care director under this Act continue to apply while the child is in the hospital or facility in which health care services are provided.
(3) The safe care director with care and control of the child must transport a child to a designated facility under the Mental Health Act if a medical practitioner completes a medical certificate in accordance with section 22 (3) and (4) [involuntary admissions] of that Act.
(4) If a child is admitted to a designated facility under the Mental Health Act, the child is deemed to be discharged under this Act and
(a) any order in respect of the child made under this Act ceases to have effect, and
(b) the powers and duties of the safe care director under this Act cease to apply.
29 In providing health care and social services to a child under this Act, the safe care director with care and control of the child must do all of the following:
(a) inform the child of the services available;
(b) ensure that service planning and provision take into account the child's needs and cultural, racial and religious heritage;
(c) if the child is an Indigenous child, make every effort to involve Indigenous persons in service planning and provision;
(d) if appropriate, involve the child's family and community in service planning and provision, including services that will assist the child to return to the community;
(e) coordinate services, as appropriate, with those provided by community agencies and the government.
30 (1) For each child who is subject to a stabilization and assessment order, the safe care director must prepare, with the child's participation, according to the child's abilities, a community service plan that is designed to mitigate circumstances that might lead to the child's re-apprehension under this Act.
(2) A community service plan must include all of the following:
(a) where the child is to live;
(b) the health care and social services the child will require to move back into, and continue living in, the community;
(c) how the child will access the services described in paragraph (b).
(3) Section 29 (b) to (e) applies to the development of a community service plan.
Division 3 – Leave and Discharge
31 (1) The safe care director who has care and control of a child may, if satisfied it would be in the best interests of the child, give written permission to the child to be on leave from a safe care facility for the period of time and the purposes specified by the director in the document that sets out the director's permission.
(2) The safe care director may attach conditions to the leave by setting them out in the document referred to in subsection (1), including conditions respecting
(a) where the child is to live;
(b) health care and social services to be made available to the child; and
(c) reports to be made by the child to the safe care director while the child is on leave.
(3) Despite subsection (1), the powers and duties of the safe care director under this Part continue to apply while a child is on leave.
(4) The safe care director may revoke a child's leave if satisfied that
(a) one or more purposes of the child's leave are no longer achievable,
(b) the conditions of the child's leave have not been met, or
(c) it would be in the best interests of the child.
(5) If the safe care director revokes a child's leave, the safe care director must make all reasonable efforts to provide the child with written notice of
(a) the revocation,
(b) the reasons for the revocation, and
(c) the time and place at which the child is to appear for detainment.
(6) The period of time in respect of which a safe care order is in effect remains the same despite the child's absence from the facility in accordance with this section.
32 (1) Subject to subsection (2), if a child is absent from a safe care facility for more than 24 hours without the permission of a safe care director, or a safe care director revokes permission for a child to be on leave from a safe care facility under section 31 (4) and 24 hours have elapsed from the time the child was to appear for detainment under section 31 (5) (c) without the child appearing, the safe care director must promptly make all reasonable efforts to inform the following persons of the child's absence:
(a) each parent of the child, unless the child is
(i) in the guardianship of an adoption director,
(ii) in the care, custody or guardianship of a child and family services director under the Child, Family and Community Service Act,
(iii) in the custody of a person pursuant to a court order made under section 54.01 (5) or 54.1 of the Child, Family and Community Service Act, or
(iv) in the guardianship of a person appointed as a guardian of the child under section 51 (1) (a), 53 or 55 of the Family Law Act;
(b) an adoption director, if the child is in the guardianship of that director;
(c) a child and family services director, if the child is in the care, custody or guardianship of that director under the Child, Family and Community Service Act;
(d) a person who has custody of the child pursuant to a court order made under section 54.01 (5) or 54.1 of the Child, Family and Community Service Act;
(e) a guardian of the child appointed under section 51 (1) (a), 53 or 55 of the Family Law Act; or
(f) an Indigenous representative of the child, if the child is an Indigenous child.
(2) If the safe care director determines it is not in the child's best interests to inform a person referred to in subsection (1) (c) to (f) of the child's absence, the safe care director is not required to do so.
(3) If a child is absent from a safe care facility without the permission of the safe care director
(a) the day that the child leaves the facility is not counted as a day of detainment, and
(b) each day the child is absent from the facility is not counted as a day of detainment.
(4) Despite subsection (3), if a child described in subsection (1) is absent from the safe care facility for more than 30 days without permission, any stabilization and assessment order made in respect of the child ceases to have effect.
(5) The 30-day period referred to in subsection (4) begins on the earliest of
(a) the first day of the child's absence, or
(b) the date the safe care director revokes permission to be on leave under section 31 (4).
33 (1) Despite any other provision of this Act, a safe care director who has care and control of a child must discharge the child if satisfied that
(a) circumstances relevant to the child have changed, so that the child, if discharged, would not be a child at risk of serious harm, or
(b) a less intrusive measure has become available that would be adequate to sufficiently reduce any risk to the child's health and safety.
(2) Despite any other provision of this Act, a safe care director who has care and control of a child must discharge the child if the director enters into a written agreement with any of the following persons that the director believes will be implemented and will be adequate to sufficiently reduce any risk to the child's health or safety:
(a) the child;
(b) the child's parent;
(c) if the child is an Indigenous child, the Indigenous representative of the child;
(d) if the child is in the care, custody or guardianship of an adoption director or a child and family services director, that director.
(3) If, in accordance with subsections (1) or (2), a safe care director discharges a child who is subject to a stabilization and assessment order, the director must discharge the child in accordance with a community service plan made under section 30.
(4) If a safe care director discharges a child in accordance with subsection (1) or (2) before a safe care order respecting the child has expired, the director must
(a) notify the person or persons referred to in section 11 (2) (a) to (d) [informing persons of a child's detention], and
(b) within 7 days after the child's discharge, provide the court with a written report setting out the safe care director's reasons for discharging the child.
(5) The safe care director must, without delay, provide a copy of the report referred to in subsection (4) (b) to all persons given notification under subsection (4) (a).
Division 4 – Security Measures
34 In this Division:
"child" means a child who is subject to a safe care order;
"child communication" means communication by mail, telephone or electronic means between a child and another person, other than a privileged communication as specified in a regulation made under section 54 (2) (d) or determined in accordance with a regulation made under section 54 (2) (e).
35 (1) On admission, entry or return of a child to a safe care facility, the safe care director with care and control of the child may conduct a search of the child and the personal possessions, including clothing, that the child may be carrying or wearing, if the director considers it necessary or advisable for the management, operation or security of the facility or the safety of the child or other persons in the facility.
(2) If a safe care director who has care and control of a child believes on reasonable grounds that the child may be in possession of contraband or evidence relating to an offence under section 53 (e) or (f), the director may, if necessary in the circumstances, conduct a search of
(a) the child and any personal possessions, including clothing, that the child may be carrying or wearing, and
(b) the child's room and its contents.
(3) A search under subsection (1) or (2) may include a strip search of the child conducted in accordance with the regulations, if the safe care director considers it necessary for the safety of the child or other persons in the safe care facility.
(4) A strip search of a child under subsection (1) or (2) must be conducted by a person of the same gender as the child unless the safe care director believes on reasonable grounds that any delay caused by complying with this requirement would result in danger to human life or safety.
(5) In this section, "strip search" has the same meaning as in subsection 17 (1) of the Youth Custody Regulation.
36 (1) Subject to section 25 (2) [privacy rights], a safe care director may restrict, intercept, monitor or record child communication, and retain or dispose of those records, in accordance with the regulations.
(2) Section 27 (2) of the Freedom of Information and Protection of Privacy Act does not apply to personal information collected in accordance with subsection (1) of this section from a person other than a child.
37 (1) The safe care director with care and control of a child may seize an object or substance from the child if the safe care director believes on reasonable grounds that the object or substance is contraband or evidence relating to an offence under section 53 (e) or (f).
(2) As soon as practicable after an object or substance is seized under subsection (1), the safe care director must
(a) make a record describing the object or substance and the circumstances in which it was seized, and
(b) deposit the object or substance in a secure place at the safe care facility.
(3) The safe care director may transfer to the custody of the police or a court any object or substance referred to in subsection (1) that may be required as evidence in a proceeding.
(4) Section 23 (4) (a) of the Offence Act does not apply to any object or substance seized under subsection (1) of this section.
(5) A safe care director who has seized an object or substance under subsection (1) must return to its owner if
(a) it is in the custody or control of the director;
(b) it is not contraband or evidence relating to an offence under section 53 (e) or (f); and
(c) the ownership of the object or substance is not in dispute.
(6) If an object or substance is seized under subsection (1) and the object or substance is contraband but its possession outside the safe care facility would be lawful, a safe care director may direct that
(a) the object or substance be kept in a secure place at the facility and returned to the child on the child's discharge from the facility,
(b) the child be given a reasonable opportunity to make arrangements for the disposal or safekeeping of the object or substance outside the facility, or
(c) the object or substance be disposed of if
(i) it is of a perishable nature and subject to spoilage,
(ii) it will deteriorate in value if kept,
(iii) its custody involves unreasonable expense or inconvenience,
(iv) it is unsafe to keep, or
(v) it is dangerous to life, health or property.
(7) An object or substance seized under subsection (1) is forfeited to the government in accordance with the regulations if
(a) within 30 days after being notified of its seizure, the owner does not request its return,
(b) the owner cannot be located and 3 months have elapsed since the seizure,
(c) the object or substance is contraband and its possession outside the safe care facility would be unlawful, or
(d) in the case of an owner who is a child,
(i) its possession by the child would constitute possession of contraband, and
(ii) the child has not arranged for the disposal or safekeeping of the object or substance outside the safe care facility after being given the opportunity to do so in accordance with subsection (6) (b).
Division 1 – Safe Care Director
38 (1) Subject to the regulations, the minister may designate one or more persons as a safe care director under this Act.
(2) A designation under subsection (1) must be in writing and may include any terms or conditions the minister considers advisable.
(3) A safe care director referred to in subsection (1) has jurisdiction throughout British Columbia in the exercise of the powers and the performance of the duties conferred on a safe care director under this Act.
(4) An order or warrant issued under this Act that authorizes a safe care director or directors to carry out the powers and duties referred to in the order or warrant authorizes all safe care directors to carry out those powers and duties, as the circumstances require.
(5) For certainty, if the powers or duties authorized by an order or warrant are carried out by a safe care director other than the director who has care and control of the child, this does not mean that there has been a transfer of care and control of the child to the director who carried out the powers or duties.
39 (1) Subject to the regulations, a safe care director may delegate to any person or class of persons any or all of the director's powers or duties under this Act.
(2) A delegation of the powers or duties of a safe care director under subsection (1) must be in writing and may include any terms or conditions that the director considers advisable.
40 A safe care director may
(a) establish and designate safe care facilities for the purposes of this Act,
(b) establish programs and services for children who are subject to safe care orders, and
(c) make arrangements respecting one or more specific children who are subject to a safe care order or respecting children, generally, who are subject to safe care orders, 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) with a First Nation or a Treaty First Nation,
(iii) with any ministry, official or agency of the government, a regional health board, the Provincial Health Services Authority or any community agency, and
(iv) with the government of Canada, the government of a province of Canada or the government of a jurisdiction outside of Canada, or an official or agency of any of those governments.
41 (1) A safe care director has the right to any information that
(a) is in the custody or control of a public body; and
(b) is necessary to enable the director to exercise the director's powers or perform the director's duties under this Act.
(2) A public body that has custody or control of information to which a safe care director is entitled under subsection (1) must, on the written request of the director, disclose that information to the director.
(3) This section applies despite
(a) any claim of confidentiality or privilege, other than a claim based on solicitor-client privilege, and
(b) any other enactment, other than section 51 of the Evidence Act.
(4) In this section, "public body" has the same meaning as in the Freedom of Information and Protection of Privacy Act.
42 A safe care director may collect from any person any information that is necessary to enable the director to exercise the director's powers or perform the director's duties under this Act.
Division 2 – Review of Safe Care Director's Decisions
43 A safe care director must
(a) establish, in accordance with the regulations, a procedure that provides for a person to request a review of a safe care director's exercise of powers and performance of duties under this Act,
(b) conduct a review referred to in paragraph (a) in accordance with the procedure referred to in that paragraph (a) if required to do so under the regulations, and
(c) ensure that information about the review procedure is available to any person on request.
44 (1) A safe care director may, in accordance with any matters established by the director under subsection (4) and subject to the regulations, if any, initiate and conduct a review on any matter relating to the provision of a service under this Act.
(2) If a safe care director conducts a review under subsection (1), the director must prepare a written report of the review and submit the report to the minister.
(3) A review under subsection (1) is not complete until the written report has been finalized and submitted to the minister.
(4) Respecting reviews under subsection (1), a safe care director may establish
(a) different types of reviews for different types of matters, and
(b) different processes, time limits and types of reports for different types of reviews.
45 (1) A person must not intimidate, coerce, discipline or otherwise discriminate against a child because the child
(a) has requested a review under section 43 [review on request of person], or
(b) is the subject of, or has given information or otherwise assisted in, a review under section 43 or 44 [review initiated by safe care director].
(2) A person must not discharge, suspend, expel, intimidate, coerce, evict or impose a financial or other penalty on, or otherwise discriminate against, another person because the person
(a) has requested a review under section 43 [review on request of person], or
(b) has given information or otherwise assisted in a review under section 43 or 44 [review initiated by safe care director].
Division 3 – Freedom of Information and Protection of Privacy
46 In this Part, "record" means a record as defined in the Freedom of Information and Protection of Privacy Act.
47 (1) This section and sections 48 to 50 apply despite the Freedom of Information and Protection of Privacy Act.
(2) For the purpose of its application to this Act, the Freedom of Information and Protection of Privacy Act ("that Act") is deemed to be modified as follows:
(a) a reference to "head" includes, with respect to a record, the safe care director who has custody or control of the record;
(b) a reference to a "public body", where a power or duty is not conferred on the head of the public body, includes, with respect to a record, the safe care director who has custody or control of the record;
(c) the authority for a public body to collect personal information indirectly under section 27 (1) (b) of that Act includes the authority to collect personal information indirectly when the information may be disclosed to the public body under section 50 [disclosure by safe care director] of this Act;
(d) the authority for a public body to use personal information under section 32 (c) of that Act includes the authority to use personal information for a purpose for which that information may be disclosed to the public body under section 50 [disclosure by safe care director] of this Act;
(e) the only provisions of sections 33 of that Act that apply to the disclosure of information by a safe care director are the following:
(i) section 33 (2) (a) [in accordance with Part 2 of that Act];
(ii) section 33 (2) (c) [individual consent];
(iii) section 33 (4) [archival or historical purposes];
(iv) section 33 (3) (g) [archives];
(v) section 33 (3) (h) [research];
(f) subject to this section, the powers of the Information and Privacy Commissioner set out in section 42 of that Act may be exercised in respect of a safe care director's exercise of powers and performance of duties under that Act.
48 Subject to section 47, a person must not disclose information obtained under this Act, except in accordance with the Freedom of Information and Protection of Privacy Act.
49 A safe care director may refuse to disclose information in a record to a person who has a right of access to the record under the Freedom of Information and Protection of Privacy Act if the disclosure could reasonably be expected to jeopardize an investigation under section 16 (2) (c) of the Child, Family and Community Service Act or a criminal investigation that is under way or contemplated.
50 A safe care director may, without the consent of any person, disclose information collected 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 any person;
(c) required by section 18 [disclosure] or required to be made to a party to a court proceeding by order of a court in Canada;
(d) authorized by the Youth Criminal Justice Act (Canada);
(e) required by an enactment;
(f) made when giving or when validly compelled to give evidence in a court proceeding;
(g) necessary for the purposes of conducting a review under section 43 [review on request of person] or 44 [review initiated by safe care director] of this Act;
(h) made in order to submit a report, or part of a report, finalized under section 44 (3) [review initiated by safe care director], in accordance with any regulations made under section 54 (2) (m);
(i) made to the Public Guardian and Trustee or an adoption director or child and family services director, if the information being disclosed is necessary for that person to carry out the person's powers and duties under an enactment;
(j) made to another safe care director;
(k) made to a safe care director's legal counsel;
(l) made in Canada to a service provider, as defined in Schedule 1 to the Freedom of Information and Protection of Privacy Act, and the information relates to a child in respect of whom the services are being provided; or
(m) necessary for the administration of this Act.
51 (1) The minister may provide for the inspection of one or more safe care facilities, on a periodic basis or otherwise, as the minister considers appropriate in the circumstances.
(2) In conducting an inspection under this section, the minister, or any person authorized by the minister in writing, may at any time
(a) enter a safe care facility, and
(b) access any part of the safe care facility.
(3) The minister or other person conducting the inspection may do one or more of the following:
(a) examine any record or thing in the safe care facility;
(b) investigate the conduct of any person employed in, or found in or about, the safe care facility;
(c) by order signed by the minister or other person conducting the inspection, summon a person before the minister or other person conducting the inspection;
(d) examine under oath the person summoned under paragraph (c) about any matter relating to
(i) any contravention of this Act, the regulations or the rules of the safe care facility, or
(ii) any matter affecting the interests of the safe care facility;
(e) by order signed by the minister or other person conducting the inspection, compel the production of any record or thing before the minister or person conducting the inspection.
52 (1) Subject to subsection (2), no legal proceeding for damages may be commenced or maintained against a safe care director, a police officer or a person specified in a warrant issued under section 15 (1) [entry on private premises] because of anything done or omitted
(a) in the performance or intended performance of any duty under this Act, or
(b) in the exercise or intended exercise of any power under this Act.
(2) Subsection (1) does not apply to a person referred to in that subsection in relation to anything done or omitted by that person in bad faith.
53 A person commits an offence if the person
(a) without lawful excuse, interferes with or obstructs a person who is exercising a power or performing a duty under this Act,
(b) knowingly assists, through an act or omission, a child who is subject to a safe care order to
(i) leave a safe care facility without permission of the safe care director who has care and control of the child, or
(ii) violate the terms or conditions of a leave permitted under section 31,
(c) intentionally interferes with the operation of a safe care facility,
(d) trespasses on the grounds or buildings of a safe care facility or other property related to the operation of a safe care facility,
(e) delivers contraband to, or receives contraband from, a child who is subject to a safe care order,
(f) is in the possession of anything referred to in paragraph (b) or (c) of the definition of "contraband" while inside or on the property of a safe care facility,
(g) contravenes section 45 [no reprisals because of review], or
(h) contravenes section 48 [disclosure of information restricted].
54 (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) prescribing one or more classes of constables for the purpose of the definition of "police officer";
(b) prescribing health care providers for the purposes of
(i) examining a child under section 12 [medical examination], and
(ii) examining a child, and determining if the child requires health care services beyond those that can be provided at a safe care facility, under section 28 (1) (b) [transfer for health care purposes];
(c) providing for the management, operation, discipline and security of safe care facilities;
(d) specifying communications between a child and another person that are privileged;
(e) respecting procedures that a safe care director must follow, and specifying criteria that a safe care director must apply, to examine a child communication and determine whether it is privileged communication;
(f) respecting searches, including strip searches;
(g) respecting the restrictions, interception, monitoring or recording of child communication;
(h) providing for the handling, retention and disposal of child communication that has been intercepted or recorded;
(i) respecting the disposal of seized property or unclaimed property left behind by a child at a safe care facility, including providing for the forfeiture of the property to the government;
(j) respecting the designation of safe care directors;
(k) respecting the delegation of the powers and duties of safe care directors, including regulations authorizing the minister to restrict a safe care director's power to delegate;
(l) governing reviews under section 43 [review on request of person];
(m) respecting reviews conducted, and reports prepared and finalized, under section 44 [review initiated by safe care director], including,
(i) specifying the criteria a safe care director must apply in exercising the director's discretion to conduct a review, and
(ii) specifying the criteria, rules or requirements that must be applied or followed by a safe care director for the purposes of submitting a report or part of a report under section 50 (h) [disclosure by safe care director];
(n) defining words or expressions used but not defined in this Act.
(3) In making a regulation under this Act, the Lieutenant Governor in Council may make different regulations for different persons, classes of persons, circumstances, facilities, matters, places and things.
Consequential Amendments and Repeal
Adoption Act
55 Section 76.1 (1) (a) of the Adoption Act, R.S.B.C. 1996, c. 5, is repealed and the following substituted:
(a) one or more persons as a director of adoption for the purposes of this Act and any provision of another enactment that contains a reference to a director under this Act, and .
56 Section 77 (1) is repealed and the following substituted:
(1) Subject to subsections (2) and (3) and the regulations, a director may delegate to any person or class of person any of the director's powers, duties or functions under this Act or a provision of another enactment that contains a reference to a director under this Act.
Child, Family and Community Service Act
57 Section 92 (1) of the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46, is repealed and the following substituted:
(1) Subject to the regulations, a director may delegate to any person or class of person any or all of the director's powers, duties or functions under this Act or a provision of another enactment that contains a reference to a director under this Act.
Coroners Act
58 The Coroners Act, S.B.C. 2007, c. 15, is amended by adding the following section:
4.1 If a child who is subject to a safe care order dies, the safe care director who had care and control of the child at the time of the child's death must immediately make a written report to a coroner setting out the facts and circumstances relating to the death of the child.
Law and Equity Act
59 Section 52 (2) of the Law and Equity Act, R.S.B.C. 1996, c. 253, is repealed and the following substituted:
(2) Subsection (1) does not apply to proceedings under the Child, Family and Community Service Act or the Safe Care Act, except as provided for in those Acts.
Parental Liability Act
60 Section 1 of the Parental Liability Act, S.B.C. 2001, c. 45, is amended in the definition of "director" and in paragraph (h) (vi) of the definition of "parent" by striking out "Secure Care Act;" in both places and substituting "Safe Care Act;".
Provincial Court Act
61 Section 31 (2) of the Provincial Court Act, R.S.B.C. 1996, c. 379, is amended by adding "Safe Care Act," after "Youth Justice Act,".
Representative for Children and Youth Act
62 Section 1 of the Representative for Children and Youth Act, S.B.C. 2006, c. 29, is amended
(a) in paragraph (a) of the definition of "designated services" by striking out "the Community Living Authority Act and the Youth Justice Act;" and substituting "the Community Living Authority Act, the Safe Care Act and the Youth Justice Act;",
(b) in the definition of "director" by striking out "Child, Family and Community Service Act;" and substituting "Child, Family and Community Service Act or the Safe Care Act;", and
(c) in paragraph (a) of the definition of "reviewable services" by striking out "Child, Family and Community Service Act and the Youth Justice Act;" and substituting "Child, Family and Community Service Act, the Safe Care Act and the Youth Justice Act;".
Secure Care Act
63 The Secure Care Act, S.B.C. 2000, c. 28, is repealed.
64 This Act comes into force by regulation of the Lieutenant Governor in Council.
This Bill: