Child and Family Services Statute Law Amendment Act, 2009, S.O. 2009, c. 2 - Bill 103

EXPLANATORY NOTE

This Explanatory Note was written as a reader’s aid to Bill 103 and does not form part of the law. Bill 103 has been enacted as Chapter 2 of the Statutes of Ontario, 2009.

The Bill amends the Child and Family Services Act and the Ministry of Correctional Services Act to reflect the fact that the Ministry of Children and Youth Services assumed responsibility for youth justice services in 2004. Prior to this, the Ministry of Community and Social Services funded and operated services to youth aged 12 to 15 at the time of their offence and the Ministry of Community Safety and Correctional Services funded and operated youth justice services to youth aged 16 to 17 at the time of their offence.

A number of definitions in the Child and Family Services Act are moved from Part IV of the Act to the interpretation section of the Act because the defined terms have a broader application that will be used in several Parts of the Act and not only in Part IV. Section 90 is amended to permit the Minister to appoint classes of persons as provincial directors, probation officers and bailiffs and to permit the Minister to designate certain classes of persons as peace officers.

Section 93 of the Act is amended to set criteria that apply to secure detention for all youth; formerly it was used only in respect of youth aged 12 to 15 at the time of the offence. Subsection 93 (5) is amended to clearly establish the youth justice court’s jurisdiction to review an order for detention. Section 93 is also amended by adding a new provision, subsection 93 (7), permitting a provincial director to bring an application to review an order for open temporary detention where there has been a material change in the circumstances or for any other reason the provincial director considers appropriate.

The Act is amended to add a section 98.1 that permits the Minister to designate persons to conduct inspections and investigations in places of temporary detention, of secure custody and of open custody. Section 103 is amended to cover all written communications to and from a child in care and not simply mail, and a new subsection is added to deal with written communications to and from a young person who is detained in a place of temporary detention or held in a place of secure custody or of open custody.

A new section 103.1 is added to the Act which permits a service provider to place limitations on persons who visit a young person in a place of temporary detention, of open custody or of secure custody. In emergency circumstances that might pose a risk to employees or young persons at a facility, visits may be suspended until the emergency is resolved. Certain classes of individuals are exempt from this provision unless the provincial director determines that suspension is necessary to ensure public safety or the safety of staff or young persons in the facility.

Section 127 of the Act is amended to allow for the prescribing of standards and procedures that would apply to youth aged 16 and over when they are held in secure isolation in a place of secure custody or of secure temporary detention.

Numerous amendments are made to the Ministry of Correctional Services Act reflecting the transfer of jurisdiction over young persons aged 16 and 17 to the Child and Family Services Act. These amendments include the repeal of Part V of the Act, which dealt exclusively with young persons.

Consequential amendments are made to the Provincial Advocate for Children and Youth Act, 2007.

Français

chapter 2

An Act to amend the Child and Family Services Act and to make amendments to other Acts

Assented to March 9, 2009

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Child and Family Services Act

1. Subsection 3 (1) of the Child and Family Services Act is amended by adding the following definitions:

“federal Act” means the Youth Criminal Justice Act (Canada); (“loi fédérale”)

“place of open custody” means a place or facility designated as a place of open custody under subsection 24.1 (1) of the Young Offenders Act (Canada), whether in accordance with section 88 of the federal Act or otherwise; (“lieu de garde en milieu ouvert”)

“place of open temporary detention” means a place of temporary detention in which the Minister has established an open detention program; (“lieu de détention provisoire en milieu ouvert”)

“place of secure custody” means a place or facility designated for the secure containment or restraint of young persons under subsection 24.1 (1) of the Young Offenders Act (Canada), whether in accordance with section 88 of the federal Act or otherwise; (“lieu de garde en milieu fermé”)

“place of secure temporary detention” means a place of temporary detention in which the Minister has established a secure detention program; (“lieu de détention provisoire en milieu fermé”)

“place of temporary detention” means a place or facility designated as a place of temporary detention under the Young Offenders Act (Canada) or under the federal Act; (“lieu de détention provisoire”)

“provincial director” means,

(a) a person, the group or class of persons or the body appointed or designated by the Lieutenant Governor in Council or his or her delegate to perform any of the duties or functions of a provincial director under the Young Offenders Act (Canada) or under the federal Act, or

(b) a person as appointed under clause 90 (1) (a); (“directeur provincial”)

“young person” means a person who is or, in the absence of evidence to the contrary, appears to be 12 years of age or older but less than 18 years old and, if the context requires, includes any person who is charged under the federal Act with having committed an offence while he or she was a young person or who is found guilty of an offence under the federal Act; (“adolescent”)

2. The following definitions in section 88 of the Act are repealed:

1. The definition of “federal Act”.

2. The definition of “place of open custody”.

3. The definition of “place of open temporary detention”.

4. The definition of “place of secure custody”.

5. The definition of “place of secure temporary detention”.

6. The definition of “place of temporary detention”.

7. The definition of “provincial director”.

8. The definition of “young person”.

3. (1) Subsection 90 (1) of the Act is amended by striking out the portion before clause (a) and substituting the following:

Appointments by Minister

(1) The Minister may appoint any person or class of persons as,

. . . . .

(2) Subclause 90 (1) (a) (iii) of the Act is repealed and the following substituted:

(iii) under this Act and the regulations;

(3) Subclause 90 (1) (b) (iii) of the Act is repealed and the following substituted:

(iii) of a probation officer under this Act and the regulations; and

(4) Section 90 of the Act is amended by adding the following subsection:

Designation of peace officers

(3.1) The Minister may designate in writing,

(a) a person who is an employee in the Ministry or is employed in a place of open custody, of secure custody or of temporary detention to be a peace officer while performing the person’s duties and functions; or

(b) a class of persons, from among the persons described in clause (a), to be peace officers while performing their duties and functions,

and may set out in the designation any conditions or limitations to which it is subject.

4. Section 91 of the Act is repealed.

5. (1) Subsection 93 (2) of the Act is repealed and the following substituted:

Where secure detention available

(2) A provincial director may detain a young person in a place of secure temporary detention if the provincial director is satisfied that it is necessary on one of the following grounds:

1. The young person is charged with an offence for which an adult would be liable to imprisonment for five years or more and,

i. the offence includes causing or attempting to cause serious bodily harm to another person,

ii. the young person has, at any time, failed to appear in court when required to do so under the federal Act or the Young Offenders Act (Canada) or escaped or attempted to escape from lawful detention, or

iii. the young person has, within the 12 months immediately preceding the offence on which the current charge is based, been convicted of an offence for which an adult would be liable to imprisonment for five years or more.

2. The young person is detained in a place of temporary detention and leaves or attempts to leave without the consent of the person in charge or is charged with having escaped or attempting to escape from lawful custody or being unlawfully at large under the Criminal Code (Canada).

3. The provincial director is satisfied, having regard to all the circumstances, including any substantial likelihood the young person will commit a criminal offence or interfere with the administration of justice if placed in a place of open temporary detention, that it is necessary to detain the young person in a place of secure temporary detention,

i. to ensure the young person’s attendance at court,

ii. for the protection and safety of the public, or

iii. for the safety or security within a place of temporary detention.

(2) Subsection 93 (5) of the Act is repealed and the following substituted:

Review by youth justice court

(5) A young person who is being detained in a place of secure temporary detention and who is brought before a youth justice court for a review of an order for detention made under the federal Act or the Criminal Code (Canada) may request that the youth justice court review the level of his or her detention.

Same

(6) The youth justice court conducting a review of an order for detention may confirm the provincial director’s decision under subsection (2) or may direct that the young person be transferred to a place of open temporary detention.

Application for return to secure temporary detention

(7) A provincial director may apply to a youth justice court for a review of an order directing that a young person be transferred to a place of open temporary detention under subsection (6) on the basis that,

(a) the provincial director is satisfied that because of a material change in the circumstances; or

(b) on any other grounds that the provincial director considers appropriate,

it is necessary that the young person be returned to a place of secure temporary detention.

Same

(8) The youth justice court conducting a review of an order transferring a young person to a place of open temporary detention may confirm the court’s decision under subsection (6) or may direct that the young person be transferred to a place of secure temporary detention.

6. Part IV of the Act is amended by adding the following section:

Inspections and Investigations

Inspections and investigations

98.1 (1) The Minister may designate any person to conduct such inspections or investigations of places of temporary detention, of secure custody or of open custody as the Minister may require.

Dismissal for cause for obstruction, etc., of inspection

(2) Any person employed in the Ministry who obstructs an inspection or investigation or withholds, destroys, conceals or refuses to furnish any information or thing required for purposes of an inspection or investigation may be dismissed for cause from employment.

7. The definition of “child in care” in section 99 of the Act is repealed and the following substituted:

“child in care” means a child or young person who is receiving residential services from a service provider and includes,

(a) a child who is in the care of a foster parent, and

(b) a young person who is,

(i) detained in a place of temporary detention under the federal Act,

(ii) committed to a place of secure or open custody designated under subsection 24.1 (1) of the Young Offenders Act (Canada), whether in accordance with section 88 of the federal Act or otherwise, or

(iii) held in a place of open custody under section 95 of Part IV (Youth Justice).

8. (1) Clause 103 (1) (c) of the Act is repealed and the following substituted:

(c) to send and receive written communications that are not read, examined or censored by another person, subject to subsections (3) and (4).

(2) Subsection 103 (3) of the Act is repealed and the following substituted:

Opening, etc., of written communications to child

(3) Subject to subsection (4), written communications to a child in care,

(a) may be opened by the service provider or a member of the service provider’s staff in the child’s presence and may be inspected for articles prohibited by the service provider;

(b) subject to clause (c), may be examined or read by the service provider or a member of the service provider’s staff in the child’s presence, where the service provider believes on reasonable grounds that the contents of the written communication may cause the child physical or emotional harm;

(c) shall not be examined or read by the service provider or a member of the service provider’s staff if it is to or from the child’s solicitor; and

(d) shall not be censored or withheld from the child, except that articles prohibited by the service provider may be removed from the written communication and withheld from the child.

(3) Section 103 of the Act is amended by adding the following subsections:

Opening, etc., of young person’s written communications

(4) Written communications to and from a young person who is detained in a place of temporary detention or held in a place of secure custody or of open custody,

(a) may be opened by the service provider or a member of the service provider’s staff in the young person’s presence and may be inspected for articles prohibited by the service provider;

(b) may be examined or read by the service provider or a member of the service provider’s staff and may be withheld from the recipient in whole or in part where the service provider or the member of their staff believes on reasonable grounds that the contents of the written communications may,

(i) be prejudicial to the best interests of the young person, the public safety or the safety or security of the place of detention or custody, or

(ii) contain communications that are prohibited under the federal act or by court order;

(d) shall not be opened and inspected under clause (a) or examined or read under clause (b) if it is to or from a person described in subclause (1) (b) (ii), (iii) or (iv).

Definition

(5) In this section,

“written communications” includes mail and electronic communication in any form.

9. The Act is amended by adding the following section:

Limitations on rights

Conditions and limitations on visitors

103.1 (1) A service provider may impose such conditions and limitations upon persons who are visiting a young person in a place of temporary detention, of open custody or of secure custody as are necessary to ensure the safety of staff or young persons in the facility.

Suspending visits in emergencies

(2) Where a service provider has reasonable grounds to believe there are emergency circumstances within a facility that is a place of temporary detention, of open custody or of secure custody or within the community that may pose a risk to staff or young persons in the facility, the service provider may suspend visits until there are reasonable grounds to believe the emergency has been resolved and there is no longer a risk to staff or young persons in the facility.

Limited exception

(3) Despite subsection (2), the service provider may not suspend visits from,

(a) the Provincial Advocate for Children and Youth and members of his or her staff;

(b) the Ombudsman appointed under the Ombudsman Act and members of the Ombudsman’s staff; or

unless the provincial director determines that suspension is necessary to ensure public safety or the safety of staff or young persons in the facility.

10. Section 107 of the Act is amended by striking out “education and” and substituting “education or training or work programs and”.

11. Subsection 126 (1) of the Act is amended by striking out “children” and substituting “children or young persons”.

12. (1) Subsection 127 (1) of the Act is repealed and the following substituted:

Secure isolation

(1) No service provider or foster parent shall isolate in a locked place a child or young person who is in his or her care or permit the child or young person to be isolated in a locked place, except in accordance with this section and the regulations.

(2) Subsections 127 (3) to (8) of the Act are repealed and the following substituted:

Criteria for use of secure isolation

(3) A child or young person may be placed in a secure isolation room where,

(a) in the service provider’s opinion,

(i) the child’s or young person’s conduct indicates that he or she is likely, in the immediate future, to cause serious property damage or to cause another person serious bodily harm, and

(ii) no less restrictive method of restraining the child or young person is practicable; and

(b) where the child is less than 12 years of age, a Director gives permission for the child to be placed in a secure isolation room because of exceptional circumstances.

One-hour limit

(4) A child or young person who is placed in a secure isolation room shall be released within one hour unless the person in charge of the premises approves the child’s or young person’s longer isolation in writing and records the reasons for not restraining the child or young person by a less restrictive method.

Continuous observation of child

(5) Subject to subsection (9), the service provider shall ensure that a child or young person who is placed in a secure isolation room is continuously observed by a responsible person.

Review

(6) Where a child or young person is kept in a secure isolation room for more than one hour, the person in charge of the premises shall review the child’s or young person’s isolation at prescribed intervals.

Release

(7) A child or young person who is placed in a secure isolation room shall be released as soon as the person in charge is satisfied that the child or young person is not likely to cause serious property damage or serious bodily harm in the immediate future.

Maximum periods

(8) Subject to subsection (9), in no event shall a child or young person be kept in a secure isolation room for a period or periods that exceed an aggregate of eight hours in a given 24-hour period or an aggregate of 24 hours in a given week.

Exception

(9) A service provider is not required to comply with subsections (5) and (8) with respect to a young person who is aged 16 years or older and who is held in a place of secure custody or of secure temporary detention, but a service provider shall comply with the prescribed standards and procedures in respect of such young persons who are held in such places.

13. (1) Section 128 of the Act is amended by adding “or, in the case of secure custody or secure temporary detention, every six months” after “every three months”.

(2) Section 128 of the Act is amended by adding the following subsection:

Exception, places of secure custody or of secure temporary detention

(2) Subsection (1) does not apply with respect to premises that are places of secure custody or of secure temporary detention.

14. Clauses (a) and (b) and the portion following clause (b) of the definition of “children’s residence” in section 192 of the Act are repealed and the following substituted:

(a) a parent model residence where five or more children not of common parentage, or

(b) a staff model residence where three or more children not of common parentage,

live and receive residential care, and includes a foster home or other home or institution that is supervised or operated by a society or a place of temporary detention or a place of secure or of open custody, but does not include,

15. Section 219 of the Act is amended by adding the following clause:

(e.1) governing standards and procedures with which a service provider must comply under subsection 127 (9);

Ministry of Correctional Services Act

16. The definitions of “place of open custody”, “place of open temporary detention” “place of secure custody”, “place of secure temporary detention” and “place of temporary detention” in section 1 of the Ministry of Correctional Services Act are repealed.

17. Section 5 of the Act is repealed and the following substituted:

Functions of Ministry

5. It is the function of the Ministry to supervise the detention and release of inmates, parolees and probationers and to create for them an environment in which they may achieve changes in attitude by providing training, treatment and services designed to afford them opportunities for successful personal and social adjustment in the community, and, without limiting the generality of the foregoing, the objects of the Ministry are to,

(a) provide for the custody of persons awaiting trial or convicted of offences;

(b) establish, maintain and operate correctional institutions;

(d) establish and operate a system of parole;

(e) provide probation services;

(f) provide supervision of non-custodial dispositions, where appropriate; and

(g) provide programs for the prevention of crime.

18. (1) Clauses 8 (1) (b) and (c) of the Act are repealed and the following substituted:

(b) the transfer of inmates serving custodial sentences;

(2) Subsections 8 (2) and (3) of the Act are repealed.

19. Subsection 12 (1) of the Act is amended by striking out “an inmate, parolee, probationer or young person” and substituting “an inmate, parolee or probationer”.

20. Section 13 of the Act is repealed and the following substituted:

Compassionate allowance

13. The Lieutenant Governor in Council may pay a compassionate allowance in the prescribed manner and amounts as compensation to an inmate for permanent disability arising from an injury suffered while engaged in an authorized activity at a correctional institution or to any other person for injury or damage inflicted upon that person by an inmate while under the custody and supervision of the Ministry.

21. Section 15.1 of the Act is amended by striking out “other than a young person”.

22. Subsection 16 (3) of the Act is repealed.

23. Part V (sections 45 to 57.0.1) of the Act is repealed.

24. (1) Subsection 57.6 (1) of the Act is repealed and the following substituted:

Replacement of superintendent

(1) The Minister may appoint a person to act in the place of the superintendent of a correctional institution for the period of time specified in the appointment if,

(a) the Minister is not satisfied that the contractor is complying with a direction issued under section 57.4 or is of the opinion that the contractor is continuing to fail to provide correctional services in a competent manner despite complying with the direction; or

(b) the Minister is not satisfied that the contractor is complying with a direction issued under subsection 57.5 (1) or is of the opinion that a circumstance described in subsection 57.5 (1) continues to exist despite the efforts of the contractor.

(2) Subsections 57.6 (3) and (4) of the Act are repealed and the following substituted:

Duty to co-operate

(3) The contractor that operates or maintains the correctional institution, the contractor’s employees and the replaced superintendent shall co-operate with the person appointed under this section by providing any assistance that the person may request and the contractor’s employees shall comply with any directions given by the person appointed under this section.

Same

(4) The contractor that operates or maintains the correctional institution, the contractor’s employees and the replaced superintendent shall provide immediate and unrestricted access to the person appointed under this section to the correctional institution and to all documents and things relevant to the operation and maintenance of the institution.

25. (1) Clause 58 (a) of the Act is amended by striking out “or young persons”.

(2) Clause 58 (b) of the Act is amended by striking out “or young persons”.

(3) Clause 58 (d) of the Act is amended by striking out “or temporary release for young persons”.

26. Section 59 of the Act is repealed and the following substituted:

Member of Legislative Assembly

59. Every member of the Legislative Assembly of Ontario is entitled to enter and inspect any correctional institution or community resource centre established or designated under this Act, whether it is operated or maintained by the Ministry or by a contractor, for any purpose related to the member’s duties and responsibilities as a member of the Legislative Assembly, unless the Minister determines that the correctional institution or community resource centre is insecure or an emergency condition exists in it.

27. (1) Clause 60 (1) (c) of the Act is repealed.

(2) Clause 60 (1) (e) of the Act is amended by striking out “and young persons”.

(3) Clause 60 (1) (g) of the Act is amended by striking out “and young persons”.

(4) Clause 60 (1) (i) of the Act is amended by striking out “and temporary release in respect of young persons”.

(5) Clauses 60 (1) (m), (n), (o), (p) and (q) of the Act are repealed.

(6) Clause 60 (1) (r) of the Act is amended by striking out “and young persons”.

(7) Subsection 60 (5) of the Act is amended by striking out “or young person”.

Provincial Advocate for Children and Youth Act, 2007

28. (1) The definition of “young person in custody” in subsection 2 (1) of the Provincial Advocate for Children and Youth Act, 2007 is repealed.

(2) The definition of “youth” in subsection 2 (1) of the Act is repealed and the following substituted:

“youth” means one or more young persons within the meaning of the Child and Family Services Act. (“jeune”)

29. (1) Clause 15 (b) of the Act is repealed.

(2) Clause 15 (c) of the Act is repealed and the following substituted:

30. Clauses 16 (1) (f), (g), (h), (i), (j) and (n) of the Act are repealed and the following substituted:

(f) provide advice and make recommendations to entities, including governments, ministers, agencies and service providers responsible for services,

(i) under the Child and Family Services Act, or

(ii) that are provided for in the regulations;

(g) educate children in care, their families and staff of agencies and service providers about the rights of children in care under Part V of the Child and Family Services Act;

(h) communicate with children in care regarding complaints;

(i) provide advocacy to, but not represent as legal counsel or agent, children in care who are appearing before a court or tribunal, or who are appearing before a body or person that is reviewing their care, custody or detention disposition;

(j) provide advocacy to children in care regarding complaints made with respect to rights under Part V of the Child and Family Services Act;

. . . . .

(n) where an investigative authority is conducting an investigation that involves a child in care, provide advocacy to the child or youth that does not interfere with the investigation;

31. (1) Subsection 18 (1) of the Act is amended by striking “or a young person in custody”.

(2) Subsection 18 (3) of the Act is repealed and the following substituted:

Same

(3) Every agency or service provider, as the case may be, shall, without unreasonable delay, provide the Advocate with private access to children in care who wish to meet with the Advocate.

Repeals

Repeal, S.O. 2002, c. 18, Sched. N

32. Subsections 18 (1), (4) and (6) and sections 51, 52 and 55 of Schedule N to the Government Efficiency Act, 2002, being chapter 18 of the Statutes of Ontario, 2002, are repealed.

Repeal, S.O. 2006, c. 19, Sched. D

33. Subsections 12 (6), (9) and (12) of Schedule D to the Good Government Act, 2006, being chapter 19 of the Statutes of Ontario, 2006, are repealed.

Commencement and Short Title

Commencement

34. (1) Subject to subsection (2), this Act comes into force on the day it receives Royal Assent.

Same

(2) Sections 1 to 23, 25 and 27 to 31 come into force on a day to be named by proclamation of the Lieutenant Governor.

Short title

35. The short title of this Act is the Child and Family Services Statute Law Amendment Act, 2009.

Français

Child and Family Services Statute Law Amendment Act, 2009, S.O. 2009, c. 2 - Bill 103

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