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CHILD AND YOUTH ADVOCATE ACT

CHILD AND YOUTH ADVOCATE ACT

Chapter C‑11.5

Table of Contents

                1      Definitions

Part 1
Office of the Child
and Youth Advocate

                2      Appointment of Child and Youth Advocate

                3      Term of office

                4      Resignation, removal or suspension of Advocate

                5      Acting Advocate

                6      Remuneration

                7      Oath


                8      Office of the Child and Youth Advocate

Part 2
Advocate’s Role, Functions and
General Powers

                9      Role and functions of Advocate

              10      Delegation by Advocate

              11      No power to act as legal counsel

              12      Duty to report

              13      Right to information

              14      Powers relating to investigations

              15      Report after investigation

Part 3
Administrative and
General Provisions

              16      Financing of operations

              17      Advocate not compellable as witness

              18      Communications privileged

              19      Protection of Advocate and others

              20      Communications by child

              21      Annual report

              22      Regulations

              23      Review of Act

Part 4
Transitional Provisions,
Consequential and Related
Amendments and Coming into Force

              24      Transitional provision

        25‑36      Consequential and related amendments

              37      Coming into force

Preamble

WHEREAS the Government of Alberta recognizes that children and youth are our greatest resource;

WHEREAS the Government of Alberta is committed to ensuring that the rights, interests and viewpoints of the most vulnerable children and youth in provincial government systems are considered in matters affecting those children and youth; and

WHEREAS the Government of Alberta recognizes the importance of continual improvement in the provision of services to vulnerable children and youth;

THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows:

Definitions

1   In this Act,

                           (a)    “action” means action as defined in the Alberta Evidence Act;

                           (b)    “Advocate” means the Child and Youth Advocate appointed under section 2(1);

                           (c)    “child” means

                                  (i)    a person under the age of 18 years, including a youth, who is receiving or is seeking to receive a designated service, or

                                (ii)    a person under the age of 22 years who is receiving support and financial assistance under section 57.3 of the Child, Youth and Family Enhancement Act;

                           (d)    “custodian” means a custodian as defined in the Health Information Act;

                           (e)    “designated service” means

                                  (i)    a service under the Child, Youth and Family Enhancement Act, other than an adoption service under Part 2 of that Act,

                                (ii)    a service under the Protection of Sexually Exploited Children Act, or

                               (iii)    a service provided to children in the youth criminal justice system;

                            (f)    “health information” means health information as defined in the Health Information Act;

                           (g)    “personal information” means personal information as defined in the Freedom of Information and Protection of Privacy Act;

                           (h)    “public body” means a public body as defined in the Freedom of Information and Protection of Privacy Act;

                            (i)    “serious injury”, in respect of a child, means

                                  (i)    a life‑threatening injury to the child, or

                                (ii)    an injury that may cause significant impairment of the child’s health;

                            (j)    “Standing Committee” means the Standing Committee on Legislative Offices;

                           (k)    “youth” means a child who is 16 years of age or older.

 

Part 1
Office of the Child and
Youth Advocate

Appointment of Child and Youth Advocate

2(1)  The Lieutenant Governor in Council, on the recommendation of the Legislative Assembly, must appoint a Child and Youth Advocate to carry out the duties and functions set out in this Act.

(2)  The Advocate is an officer of the Legislature.

(3)  The Advocate may not be a member of the Legislative Assembly.

 

Term of office

3(1)  Except as provided for in section 4, the Advocate holds office for a term not exceeding 5 years.

(2)  A person holding office as Advocate continues to hold office after the expiry of that person’s term of office until that person is reappointed, a successor is appointed or a period of 6 months has expired, whichever occurs first.

(3)  A person is eligible for reappointment as Advocate.

 

Resignation, removal or suspension of Advocate

4(1)  The Advocate may resign at any time by notifying the Speaker of the Legislative Assembly or, if there is no Speaker or the Speaker is absent from Alberta, by notifying the Clerk of the Legislative Assembly.

(2)  The Lieutenant Governor in Council must remove the Advocate from office or suspend the Advocate for cause or incapacity on the recommendation of the Legislative Assembly.

(3)  If the Legislative Assembly is not sitting, the Lieutenant Governor in Council may suspend the Advocate for cause or incapacity on the recommendation of the Standing Committee.

 

Acting Advocate

5(1)  The Lieutenant Governor in Council, on the recommendation of the Standing Committee, may appoint an acting Advocate if

                           (a)    the office of Advocate is or becomes vacant when the Legislative Assembly is not sitting,

                           (b)    the Advocate is suspended when the Legislative Assembly is not sitting, or

                           (c)    the Advocate is removed or suspended or the office of the Advocate becomes vacant when the Legislative Assembly is sitting, but no recommendation is made by the Assembly under section 2 before the end of the sitting.

(2)  The Lieutenant Governor in Council may appoint an acting Advocate if the Advocate is temporarily absent because of illness or for another reason.

(3)  An acting Advocate holds office until

                           (a)    a person is appointed as Advocate under section 2(1),

                           (b)    the suspension of the Advocate ends, or

                           (c)    the Advocate returns to office after a temporary absence.

 

Remuneration

6   The Advocate must be remunerated as determined by the Standing Committee, and it must review that remuneration at least once a year.

 

Oath

7(1)  Before beginning the duties and functions of office, the Advocate must take an oath to faithfully and impartially perform the duties and functions of the office and not to disclose any information received by the Office of the Child and Youth Advocate under this Act except as provided in this Act.

(2)  The oath must be administered by the Speaker of the Legislative Assembly or the Clerk of the Legislative Assembly.

 

Office of the Child and Youth Advocate

8(1)  There may be a part of the public service of Alberta called the Office of the Child and Youth Advocate consisting of the Advocate and those persons employed pursuant to the Public Service Act that are necessary to assist the Advocate in carrying out the Advocate’s duties and functions under this or any other enactment.

(2)  The Advocate may engage the services of any persons necessary to assist the Advocate in carrying out the Advocate’s duties and functions.

(3)  On the recommendation of the Advocate, the Standing Committee may order that

                           (a)    any regulation, order or directive made under the Financial Administration Act,

                           (b)    any regulation, order, directive, rule, procedure, direction, allocation, designation or other decision under the Public Service Act, or

                           (c)    any regulation, order, determination, direction or other decision under the Public Sector Compensation Transparency Act,

does not apply to, or is varied in respect of, the Office of the Child and Youth Advocate or any particular employee or class of employees in that Office.

(4)  An order made under subsection (3)(a) operates despite section 2 of the Financial Administration Act.

(4.1)  An order made under subsection (3)(c) in relation to a regulation, order, determination, direction or other decision under the Public Sector Compensation Transparency Act operates notwithstanding that Act.

(5)  The Regulations Act does not apply to orders made under subsection (3).

(6)  The chair of the Standing Committee must lay a copy of each order made under subsection (3) before the Legislative Assembly if it is then sitting or, if it is not then sitting, within 15 days after the start of the next sitting.

(7)  Every person employed or engaged under subsection (1) or (2) must, before beginning to perform duties under this Act, take an oath, to be administered by the Advocate, not to disclose any information received by that person under this Act except as provided in this Act.

2011 cC‑11.5 s8;2015 cP‑40.5 s17

Part 2
Advocate’s Role, Functions
and General Powers

Role and functions of Advocate

9(1)  The role of the Advocate is to represent the rights, interests and viewpoints of children.

(2)  In carrying out the role of the Advocate under subsection (1), the Advocate may

                           (a)    communicate and visit with a child, or with a guardian or other person who represents a child;

                           (b)    on the Advocate’s own initiative, or at the request of a child, assist in appealing or reviewing a decision relating to a designated service;

                           (c)    appoint, or cause to be appointed, lawyers to represent children with respect to any matter or proceeding under the Child, Youth and Family Enhancement Act or the Protection of Sexually Exploited Children Act or any matter or proceeding prescribed by regulation;

                           (d)    if, in the opinion of the Advocate, the investigation is warranted or in the public interest, investigate systemic issues arising from

                                  (i)    a serious injury to a child who at the time of the injury was receiving a designated service referred to in section 1(e)(i),

                                (ii)    a serious injury to or the death of a child who at the time of the injury or death was receiving a designated service referred to in section 1(e)(ii) or (iii),

                               (iii)    the death of a child who at the time of the death was receiving a designated service referred to in section 1(e)(i), or

                               (iv)    the death of a child who at any time during the 2‑year period immediately preceding the death received a designated service referred to in section 1(e)(i);

                           (e)    participate in processes in which decisions are made about children;

                            (f)    promote the rights, interests and well‑being of children through public education;

                           (g)    undertake or collaborate in research related to improving designated services or addressing the needs of children receiving those services;

                           (h)    provide information and advice to the Government with respect to any matter relating to the rights, interests and well‑being of children;

                            (i)    perform any other function prescribed in the regulations.

(3)  Subsection (2)(b) does not apply in respect of a designated service referred to in section 1(e)(iii).

(4)  Subsection (2)(c) does not apply in respect of a child referred to in section 1(c)(ii).

(5)  Subsection (2)(d)(ii) does not apply in respect of a designated service referred to in section 1(e)(iii) unless, at the time of the serious injury to or death of the child, the child was in open or secure custody.

2011 cC‑11.5 s9;2013 cC‑12.5 s8;2014 c7 s19

Delegation by Advocate

10(1)  The Advocate may delegate to any person any power, duty or function of the Advocate under this Act except the power

            (a) to delegate under this section, and

            (b) to make a report under this Act.

(2)  A delegation under subsection (1) must be in writing and may contain any conditions or restrictions the Advocate considers appropriate.

 

No power to act as legal counsel

11   The Advocate may not act as legal counsel in person or by agent.

 

Duty to report

12(1)  When a child is seriously injured or dies while receiving a designated service, the public body responsible for the provision of the designated service shall report the incident to the Advocate as soon as practicable.

(2)  Subsection (1) does not apply in respect of a designated service referred to in section 1(e)(iii), unless at the time of the serious injury to or death of the child, the child was in open or secure custody.

 

Right to information

13(1)  The Advocate is entitled to any information, including personal information and health information, that

                           (a)    is in the custody or under the control of a public body or custodian, and

                           (b)    is necessary to enable the Advocate to exercise the Advocate’s powers or perform the Advocate’s duties or functions under this Act.

(2)  A public body or a custodian that is a public body shall, on request, disclose to the Advocate the information to which the Advocate is entitled under subsection (1).

(3)  A custodian that is not a public body may, on request, disclose to the Advocate the information to which the Advocate is entitled under subsection (1).

(4)  Nothing in this section compels the disclosure of any information or records that are subject to any type of legal privilege, including solicitor‑client privilege and parliamentary privilege.

 

Powers relating to investigations

14   In conducting an investigation under section 9(2)(d), the Advocate has all the powers, privileges and immunities of a commissioner under the Public Inquiries Act.

Report after investigation

15(1)  Where the Advocate conducts an investigation under section 9(2)(d), the Advocate must, after completing the investigation, make a report

                           (a)    containing recommendations for any public body or other person as the Advocate considers appropriate, and

                           (b)    addressing any other matters the Advocate considers appropriate.

(2)  The findings of the Advocate shall not contain any findings of legal responsibility or any conclusions of law.

(3)  A report made under subsection (1) must not disclose the name of, or any identifying information about, the child to whom the investigation relates or a parent or guardian of the child.

(4)  The Advocate must provide a copy of a report made under subsection (1) to a public body that is directly or indirectly a subject of the investigation.

(5)  The Advocate must make a report made under subsection (1) available to the public at a time and in a form and manner that the Advocate considers appropriate.

 

Part 3
Administrative and
General Provisions

Financing of operations

16(1)  The Advocate must submit to the Standing Committee in respect of each fiscal year an estimate of the public money that will be required to be provided by the Legislature to defray the several charges and expenses of the Office of the Child and Youth Advocate in that fiscal year.

(2)  The Standing Committee must review each estimate submitted pursuant to subsection (1) and, on the completion of the review, the chair of the Committee must transmit the estimate to the President of Treasury Board and Minister of Finance for presentation to the Legislative Assembly.

(3)  If at any time that the Legislative Assembly is not in session the Standing Committee, or if there is no Standing Committee, the President of Treasury Board and Minister of Finance,

                           (a)    reports that the Advocate has certified that, in the public interest, an expenditure of public money is urgently required in respect of any matter pertaining to the Office of the Child and Youth Advocate, and

                           (b)    reports that either

                                  (i)    there is no supply vote under which an expenditure with respect to that matter may be made, or

                                (ii)    there is a supply vote under which an expenditure with respect to that matter may be made but the authority available under the supply vote is insufficient,

the Lieutenant Governor in Council may order a special warrant to be prepared to be signed by the Lieutenant Governor authorizing the expenditure of the amount estimated to be required.

(4)  When the Legislative Assembly is adjourned for a period of more than 14 days, for the purposes of subsection (3), the Assembly is deemed not to be in session during the period of the adjournment.

(5)  When a special warrant is prepared and signed under subsection (3) on the basis of a report referred to in subsection (3)(b)(i), the authority to spend the amount of money specified in the special warrant for the purpose specified in the special warrant is deemed to be a supply vote for the purposes of the Financial Administration Act for the fiscal year in which the special warrant is signed.

(6)  When a special warrant is prepared and signed under subsection (3) on the basis of a report referred to in subsection (3)(b)(ii), the authority to spend the amount of money specified in the special warrant is, for the purposes of the Financial Administration Act, added to and deemed to be part of the supply vote to which the report relates.

(7)  When a special warrant has been prepared and signed pursuant to this section, the amounts authorized by it are deemed to be included in, and not to be in addition to, the amounts authorized by the Act, not being an Act for interim supply, enacted next after it for granting to Her Majesty sums of money to defray certain expenditures of the Public Service of Alberta.

2011 cC‑11.5 s16;2013 c10 s32

Advocate not compellable as witness

17(1)  The Advocate and a person employed or engaged under section 8(1) or (2) must not give or be compelled to give evidence in an action in respect of any matter coming to their knowledge in the exercise of powers and the performance of duties and functions under this Act, except

                           (a)    to enforce the Advocate’s powers of investigation,

                           (b)    to enforce compliance with this Act, or

                           (c)    in a prosecution for perjury.

(2)  Notwithstanding subsection (1), the Advocate and a person employed or engaged under section 8(1) or (2) may give, but must not be compelled to give, evidence in an appeal under section 120 of the Child, Youth and Family Enhancement Act or any further appeal.

2011 cC‑11.5 s17;2013 cC‑12.5 s8

Communications privileged

18   The following information, records and reports are privileged and not admissible in evidence in an action, except in a prosecution for perjury:

                           (a)    anything said, any information supplied or any record produced during an investigation under section 9(2)(d);

                           (b)    any report made under section 15(1).

 

Protection of Advocate and others

19(1)  Subject to subsection (2), no action lies or may be commenced or maintained against

                           (a)    the Advocate, or

                           (b)    a person employed or engaged under section 8(1) or (2)

in respect of anything done or omitted to be done in the exercise or intended exercise of any power under this Act or in the performance or intended performance of any duty or function under this Act.

(2)  Subsection (1) does not apply to a person referred to in that subsection in relation to anything done or omitted to be done by that person in bad faith.

 

Communications by child

20(1)  All information provided by a child to the Advocate in confidence and all documents and records created as a result of confidential communications between a child and the Advocate are the privileged information, documents and records of the child and are not admissible in evidence in any action without the consent of the child.

(2)  Despite subsection (1), the information, documents and records described in subsection (1) must be disclosed if disclosure is required by section 4 of the Child, Youth and Family Enhancement Act.

Annual report

21(1)  The Advocate must report annually to the Speaker of the Legislative Assembly on the work of the Office of the Child and Youth Advocate.

(2)  The Speaker must lay each annual report before the Legislative Assembly as soon as possible.

 

Regulations

22   The Lieutenant Governor in Council may make regulations

                           (a)    prescribing other functions of the Advocate;

                           (b)    prescribing matters or proceedings for the purposes of section 9(2)(c);

                           (c)    defining any word or expression used but not defined in this Act;

                           (d)    respecting any other matter or thing that the Lieutenant Governor in Council considers necessary for carrying out the intent of this Act.

 

Review of Act

23   A committee of the Legislative Assembly must begin a comprehensive review of this Act by July 1, 2016 and must submit to the Legislative Assembly, within one year after beginning the review, a report that includes any amendments recommended by the committee.

 

Part 4
Transitional Provisions,
Consequential and Related
Amendments and
Coming into Force

Transitional provision

24   The person who, immediately before the coming into force of this Act, held the office of Child and Youth Advocate under the Child, Youth and Family Enhancement Act is deemed to be the Advocate under this Act until a successor is appointed under section 2(1).

25 to 36  (These sections make amendments to other Acts; the amendments have been incorporated into those Acts.)

Coming into force

37   This Act comes into force on Proclamation.

(NOTE:   Section 32 proclaimed in force December 15, 2011.  The remainder of this Act proclaimed in force April 1, 2012.)