[38] Bill 165 Royal Assent (PDF)
Bill 165 2007
An Act to establish and provide for the office of the Provincial Advocate for Children and Youth
Note: This Act amends the Child and Family Services Act. For the legislative history of the Act, see Public Statutes – Detailed Legislative History on www.e-Laws.gov.on.ca.
Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
Interpretation
Purpose
1. The purpose of this Act is to provide for the Provincial Advocate for Children and Youth as an independent officer of the Legislature to,
(a) provide an independent voice for children and youth, including First Nations children and youth and children with special needs, by partnering with them to bring issues forward;
(b) encourage communication and understanding between children and families and those who provide them with services; and
(c) educate children, youth and their caregivers regarding the rights of children and youth.
Interpretation
2. (1) In this Act,
"advocacy" means promoting the views and preferences of children and youth as provided for in this Act, and exercising the functions and powers outlined in sections 15 and 16, but does not include conducting investigations or providing legal advice or legal representation; ("intervenir", "intervention")
"Advocate" means the Provincial Advocate for Children and Youth appointed under section 3; ("intervenant")
"Board of Internal Economy" means the Board of Internal Economy established by section 87 of the Legislative Assembly Act; ("Commission de régie interne")
"capable" has the same meaning as in section 2 of the Personal Health Information Protection Act, 2004; ("capable")
"child" has the same meaning as in subsection 3 (1) of the Child and Family Services Act; ("enfant")
"investigative authority" means a person, body or organization that has the authority under an Act of Ontario or Canada to conduct investigations into allegations of offences, abuse, wrongdoing or other matters, and includes, but is not limited to, a police service, Children's Aid Society or coroner, and the Ombudsman; ("autorité chargée des enquêtes")
"law enforcement" has the same meaning as in subsection 2 (1) of the Freedom of Information and Protection of Privacy Act; ("exécution de la loi")
"Minister", except in sections 17 and 21, means the Minister of Children and Youth Services, or, if the administration of this Act has been assigned to another Minister under the Executive Council Act, that Minister; ("ministre")
"personal information" means personal information within the meaning of the Freedom of Information and Protection of Privacy Act; ("renseignements personnels")
"regulations" means regulations under this Act; ("règlements")
"review" means gathering and assessing information for the purpose of advocacy; ("examen")
"systemic review" means providing advocacy to a group of children or youth who are in similar circumstances, either in response to a complaint or request by one child or youth, or on the Advocate's own initiative and includes the review of facilities, systems, agencies, service providers and processes as permitted under this or any other Act; ("examen systémique")
"young person in custody" has the same meaning as in subsection 54 (1) of the Ministry of Correctional Services Act; ("adolescent sous garde")
"youth" means one or more young persons within the meaning of the Child and Family Services Act or the Ministry of Correctional Services Act. ("jeune")
Same
(2) Words and expressions used in this Act that are defined in the Child and Family Services Act, other than the word "court", have the same meaning as in that Act, unless this Act provides otherwise, either expressly or by necessary implication.
Principles to be applied
(3) In interpreting and applying this Act, regard shall be had to the following principles:
1. The principles expressed in the United Nations Convention on the Rights of the Child.
2. The desirability of the office of the Provincial Advocate for Children and Youth being an exemplar for meaningful participation of children and youth through all aspects of its advocacy services.
The Advocate
Advocate to be appointed
3. (1) The Lieutenant Governor in Council shall, on the address of the Legislative Assembly, appoint a person to be the Provincial Advocate for Children and Youth.
Qualifications
(2) The Advocate must be a person with significant experience in areas such as children's mental health, child welfare, developmental services, youth justice, education or pediatric health services.
Transitional
(3) The person who, immediately before the coming into force of this subsection, held the title of "Chief Advocate" in the Office of Child and Family Service Advocacy continued under section 102 of the Child and Family Services Act shall be deemed to have been appointed as the Advocate until an Advocate is appointed under subsection (1).
Deputies
4. The Advocate may appoint deputies, including, without being limited to, deputies for youth justice, aboriginal youth and youth in the various geographic regions of Ontario, including youth in northern or remote communities.
Officer of the Assembly
5. The Advocate is an officer of the Assembly.
Term of office
6. (1) Subject to subsection (2), the Advocate holds office for a term of five years, and may be reappointed for one further term of five years.
Removal from office
(2) The Lieutenant Governor in Council may at any time remove the Advocate from office for cause, on the address of the Legislative Assembly.
Temporary appointment
(3) If the office of Advocate becomes vacant, or if for any reason the Advocate is unable or unwilling to fulfil the duties of the office, the Lieutenant Governor in Council may appoint a temporary Advocate to act as Advocate for a term of not more than six months.
Non-application of PSA
7. The Public Service Act does not apply to the Advocate.
Full-time Advocate
8. The Advocate shall work exclusively as Advocate and shall not hold any other office under the Crown or engage in any other employment.
Remuneration of Advocate
9. (1) The Advocate shall be paid a salary fixed by the Lieutenant Governor in Council.
Salary not to be reduced
(2) The Advocate's salary shall not be reduced unless the Lieutenant Governor in Council has received an address from the Assembly recommending a reduction.
Pension
(3) Despite section 7, the Advocate shall be a member of the Public Service Pension Plan.
Expenses
(4) The Advocate is entitled to be paid reasonable travelling and living expenses, as approved by the Board of Internal Economy, while absent from his or her ordinary place of residence in the exercise of the Advocate's functions under this Act.
Administration
Budget
10. (1) The money required for the carrying out of the functions of the Advocate shall be paid out of funds appropriated by the Legislature for the purpose.
Directives
(2) The Board of Internal Economy may from time to time issue directives to the Advocate with respect to the expenditure of funds, and the Advocate shall comply with those directives.
Estimates
(3) The Advocate shall present annually to the Board of Internal Economy estimates of the sums of money that will be required for the performance of all the functions of the Advocate.
Same
(4) The Board shall review and may alter the estimates as it considers proper.
Audits
(5) The accounts and financial statements of the Advocate shall be audited annually by the Auditor General and the results of those audits shall be presented to the Speaker of the Legislative Assembly.
Premises and supplies
11. The Advocate may lease any premises and acquire any equipment and supplies that are necessary for the carrying out of the functions of the Advocate.
Services of experts
12. The Advocate may enter into contracts to retain the services of specialists and consultants.
Staff
13. (1) Subject to the approval of the Board of Internal Economy, the Advocate may retain the staff that the Advocate considers necessary for the carrying out of the functions of the Advocate, and may determine their remuneration and their terms and conditions of employment.
Benefits
(2) The Advocate's staff shall receive the employee benefits applicable from time to time to public servants of Ontario with respect to,
(a) cumulative vacation and sick leave credits for regular attendance and payment in respect of those credits;
(b) plans for group life insurance, medical-surgical insurance and long-term income protection; and
(c) the granting of leaves of absence.
Advocate may act
(3) Where the benefits mentioned in subsection (2) are provided for in regulations made under the Public Service Act, the Advocate or any person authorized in writing by the Advocate may exercise the powers and duties of a Minister, Deputy Minister or the Civil Service Commission under those regulations.
Pension
(4) The Advocate's staff are members of the Public Service Pension Plan.
Delegation to staff
14. (1) The Advocate may delegate in writing to any member of the Advocate's staff the authority to perform any of the Advocate's functions or to carry out any of the Advocate's powers, subject to any terms provided for in the delegation.
Restriction
(2) The Advocate may not delegate the power to make a delegation or to make a report under section 21.
Functions and Powers
Functions
15. The functions of the Advocate are to,
(a) provide advocacy to children and youth who are seeking or receiving approved services under the Child and Family Services Act;
(b) provide advocacy to young persons who are being dealt with under the Ministry of Correctional Services Act;
(c) promote the rights under Part V of the Child and Family Services Act of children in care and the rights under Part V of the Ministry of Correctional Services Act of young persons in custody;
(d) provide advocacy in accordance with clause 16 (1) (k) to children who are pupils of provincial schools for the deaf, schools for the blind or demonstration schools under section 13 of the Education Act;
(e) provide advocacy in accordance with clause 16 (1) (l) to children and youth with respect to matters that arise while held in court holding cells and being transported to and from court holding cells; and
(f) provide any other advocacy that is permitted under the regulations or any other Act.
Powers
16. (1) In carrying out the functions of the Advocate, the Advocate may,
(a) receive and respond to complaints;
(b) conduct reviews, whether in response to a complaint or on the Advocate's own initiative;
(c) represent the views and preferences of children and youth to agencies and to service providers;
(d) use informal methods to resolve disputes between children or youth and agencies and service providers;
(e) make reports as to the result of the Advocate's review to the complainant, subject to section 20;
(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,
(ii) provided to young persons under the Ministry of Correctional Services Act, or
(iii) that are provided for in the regulations;
(g) educate children in care, young persons in custody, their families and staff of agencies and service providers about the rights of the children under Part V of the Child and Family Services Act and the rights of young persons in custody under Part V of the Ministry of Correctional Services Act;
(h) communicate with children in care and young persons in custody regarding complaints;
(i) provide advocacy to, but not represent as legal counsel or agent, children in care and young persons in custody 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 and young persons in custody regarding complaints made with respect to rights under Part V of the Child and Family Services Act or Part V of the Ministry of Correctional Services Act;
(k) receive and respond to complaints from children who are pupils of provincial schools for the deaf, schools for the blind or demonstration schools under section 13 of the Education Act and use informal methods to resolve those complaints;
(l) receive and respond to complaints from children and youth with respect to matters that arise while held in court holding cells and transported to and from court holding cells;
(m) meet with children who have undergone emergency admission to a secure treatment program under the Child and Family Services Act to explain, in language suitable to their understanding, the children's right to a review of the admission;
(n) where an investigative authority is conducting an investigation that involves a child in care or a young person in custody, provide advocacy to the child or youth that does not interfere with the investigation;
(o) provide information to children and youth and their families on how to access approved services;
(p) engage in systemic reviews on behalf of children and youth;
(q) provide public education about this Act and the role of the Advocate; and
(r) perform other powers and duties provided for in the regulations.
Restriction on acting as counsel
(2) The Advocate shall not represent a child or youth before a court or tribunal.
Restriction on advocacy
(3) Nothing in this Act permits the Advocate to summon and enforce the attendance of witnesses, to compel testimony under oath or to compel witnesses to produce records or things.
Power not to act on complaint
(4) The Advocate may, in his or her discretion, decide not to take any action based on a complaint if the Advocate is of the opinion that,
(a) the subject matter of the complaint is trivial;
(b) the complaint is frivolous or vexatious; or
(c) the complaint is not made in good faith.
Reasons to be given
(5) Where the Advocate decides not to act on a complaint, or to take no further action with regard to a complaint, the Advocate shall give the complainant notice in writing of the Advocate's decision, and of the reasons for the decision.
Special requirements or needs
(6) In the course of carrying out his or her functions, the Advocate shall provide advocacy that is sensitive to any special requirements or needs of the child or youth.
Notice of review
17. Where the Advocate intends to undertake a systemic review, the Advocate shall advise the Minister or the administrative head of the Ministry, agency, service provider or other entity that is to be affected of the intention to conduct the review.
Obligations on Others
Obligations of service providers
18. (1) An agency or service provider, as the case may be, shall inform a child in care or a young person in custody, in language suitable to his or her understanding, of the existence and role of the Advocate, and of how the Advocate may be contacted.
Same
(2) An agency or service provider, as the case may be, shall afford a child or youth who wishes to contact the Advocate with the means to do so privately and without delay.
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 or reasonable private access to young persons in custody who wish to meet with the Advocate.
Confidentiality and Privacy
Confidentiality
19. The Advocate, and all of the Advocate's staff, shall take an oath not to disclose any personal information obtained in the course of acting under this Act, except as permitted under this Act.
Protection of privacy and access to information
20. The following rules apply to the collection, use or disclosure of personal information by the Advocate:
1. The Advocate may directly collect personal information from an individual for the purposes of carrying out the functions of the Advocate.
2. When collecting personal information directly, the Advocate shall explain to the individual from whom it is being collected how the information may be used or disclosed, and any limitations on confidentiality that may apply.
3. The Advocate may collect personal information about an individual indirectly either with the individual's consent, or, if it is not reasonably possible to obtain the individual's consent, with the consent of a person who is authorized to consent on behalf of the individual in accordance with paragraph 12.
4. The Advocate may only use personal information about an individual that has been collected indirectly with the consent of the individual, or, if it is not reasonably possible to obtain the individual's consent, with the consent of a person who is authorized to consent on behalf of the individual in accordance with paragraph 12.
5. With the consent of an individual, or, if it is not reasonably possible to obtain the individual's consent, with the consent of a person who is authorized to consent on behalf of the individual in accordance with paragraph 12, the Advocate may collect personal information in the possession of an agency, service provider or other entity about the individual, if that information would normally be available to the individual, either through law or policy.
6. The Advocate may use personal information about an individual,
i. for the specific purpose for which it was collected, or
ii. for the purpose of seeking the individual's consent to use or disclose the information, where the personal information was collected indirectly.
7. The Advocate may only disclose personal information,
i. with the consent of the individual to whom the information pertains, or, if it is not reasonably possible to obtain the individual's consent, with the consent of a person who is authorized to consent on behalf of the individual in accordance with paragraph 12, and
ii. in accordance with this Act and any other laws of Ontario and Canada.
8. Despite paragraph 7, the Advocate may disclose personal information without consent,
i. if the Advocate reasonably believes that the disclosure is necessary to eliminate or reduce a significant risk of death or serious bodily harm to a person or group,
ii. if the disclosure is authorized or required by law, or
iii. if the disclosure is necessary for the purposes of law enforcement.
9. The Advocate may only disclose under subparagraph 8 iii information that was received from a child or youth without the consent of the child or youth if the interest of the continued proper administration of justice in having the information disclosed outweighs the privacy interests of the child or youth in not having the information disclosed.
10. The Advocate may not disclose in a public report or public communication the name or identifying information of any individual who has not consented to the disclosure unless a person who is authorized to consent on behalf of the individual in accordance with paragraph 12 has consented to the disclosure.
11. Any consent required by this section must be knowledgeable as described in subsection 18 (5) of the Personal Health Information Protection Act, 2004, relate to the specific information, and be given freely.
12. Where an individual is not capable of consenting to the collection, use or disclosure of personal information, a person who would be capable of consenting to the collection, use or disclosure, as the case may be, of personal health information on the individual's behalf under the Personal Health Information Protection Act, 2004 may consent on the individual's behalf.
13. An individual or a person who is authorized to consent on behalf of an individual in accordance with paragraph 12 may withdraw consent to the collection, use or disclosure of personal information at any time.
14. All of the rules in this section that apply to the Advocate apply equally to the Advocate's staff and to any specialists or consultants retained by the Advocate.
Reporting Requirements
Report to the Legislative Assembly
21. (1) The Advocate shall, after April 30 in every year, make a report in writing and shall deliver the report to the Speaker of the Legislative Assembly no later than December 31 in that year.
Contents
(2) The report mentioned in subsection (1) shall contain whatever information the Advocate considers appropriate, but shall contain, at a minimum, a report on the activities and finances of the Advocate's office, the outcomes expected in the fiscal year of the Government of Ontario in which the report is made, and the results achieved in the previous fiscal year.
Laying before Assembly
(3) The Speaker shall lay the report before the Assembly at the earliest reasonable opportunity.
Minister's copy
(4) The Advocate shall deliver a copy of the report to the Minister of any Ministry to which it is relevant before delivering it to the Speaker.
Other reports
(5) The Advocate may make any other public reports as he or she considers appropriate, and may present such a report to the public or any other person he or she considers appropriate, but shall deliver a copy of the report to the Minister of any Ministry to which it is relevant before the presentation.
Miscellaneous and Regulations
Limitation of liability
22. No proceeding shall be commenced against the Advocate or any person acting on behalf of or under the authority of the Advocate for anything done, reported or said in good faith in the course of the exercise or performance or intended exercise or performance of a power, duty or function under this or any other Act.
Regulations
23. The Lieutenant Governor in Council may make regulations,
(a) permitting the Advocate to provide any advocacy not otherwise provided for in this Act, subject to any conditions that may be provided for in the regulations;
(b) providing for anything that under this Act may be provided for in the regulations.
Consequential Amendments
Amendments to this Act in consequence of Public Service of Ontario Act, 2006
24. (1) This section only applies if Bill 158 (Public Service of Ontario Statute Law Amendment Act, 2006), introduced on November 2, 2006, receives Royal Assent.
(2) References in this section to provisions of Bill 158 are references to those provisions as they were numbered in the first reading version of the Bill.
(3) On the later of the day this subsection comes into force and the day section 1 of Schedule A to Bill 158 comes into force, section 7 of this Act is repealed and the following substituted:
Not a public servant
7. The Advocate is not a public servant within the meaning of the Public Service of Ontario Act, 2006.
(4) On the later of the day this subsection comes into force and the day section 1 of Schedule A to Bill 158 comes into force, subsections 13 (2) and (3) of this Act are repealed and the following substituted:
Benefits
(2) The benefits determined under Part III of the Public Service of Ontario Act, 2006 with respect to the following matters for public servants employed under that Part to work in a ministry, other than in a minister's office, who are not within a bargaining unit apply to the Advocate's staff:
1. Cumulative vacation and sick leave credits for regular attendance and payments in respect of such credits.
2. Plans for group life insurance, medical-surgical insurance or long-term income protection.
3. The granting of leaves of absence.
Same
(3) For the purposes of subsection (2), if a benefit applicable to a member of the Advocate's staff is contingent on the exercise of a discretionary power or the performance of a discretionary function, the power may be exercised or the function may be performed by the Advocate or any person authorized in writing by the Advocate.
Child and Family Services Act
25. (1) Section 102 of the Child and Family Services Act is repealed.
(2) Subclause 103 (1) (b) (ii) of the Act is repealed and the following substituted:
(ii) another person representing the child, including the Provincial Advocate for Children and Youth,
(3) Clause 108 (c) of the Act is repealed and the following substituted:
(c) the existence of the office of the Provincial Advocate for Children and Youth;
(4) Clause 124 (6) (b) of the Act is repealed and the following substituted:
(b) the Provincial Advocate for Children and Youth and the Children's Lawyer are given notice of the admission.
(5) Subsection 124 (7) of the Act is amended by striking out "The Office of Child and Family Services Advocacy" at the beginning and substituting "The Provincial Advocate for Children and Youth".
(6) Clause 218 (c) of the Act is repealed.
Commencement and Short Title
Commencement
26. (1) This section and section 27 come into force on the day this Act receives Royal Assent.
Same
(2) Sections 1 to 25 come into force on a day to be named by proclamation of the Lieutenant Governor.
Short title
27. The short title of this Act is the Provincial Advocate for Children and Youth Act, 2007.
EXPLANATORY NOTE
This Explanatory Note was written as a reader's aid to Bill 165 and does not form part of the law. Bill 165 has been enacted as Chapter 9 of the Statutes of Ontario, 2007.
The position of Provincial Advocate for Children and Youth is established. The Advocate is an officer of the Legislative Assembly.
The Advocate is given a range of powers and functions concerned with providing advocacy to children, youth and young persons, but may not act as their legal counsel or agent.
Rules are enacted to protect the confidentiality of personal information when the Advocate and the Advocate's staff are carrying out their functions.
Various administrative and procedural matters are provided for, and consequential amendments are made to the Child and Family Services Act.