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Bill S-217

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First Session, Forty-third Parliament,
68-69 Elizabeth II, 2019-2020
SENATE OF CANADA
BILL S-217
An Act to establish the Office of the Commissioner for Children and Youth in Canada
FIRST READING, June 16, 2020
THE HONOURABLE SENATOR Moodie
4311919


SUMMARY

This enactment provides for the establishment of the Office of the Commissioner for Children and Youth in Canada. It also makes consequential amendments to other Acts.
Available on the Senate of Canada website at the following address:
www.sencanada.ca/en


TABLE OF PROVISIONS

An Act to establish the Office of the Commissioner for Children and Youth in Canada
Preamble
Short Title
1
Commissioner for Children and Youth in Canada Act
Interpretation
2
Definitions
Designation of Minister
3
Order in council
Purpose
4
Purpose
Commissioner for Children and Youth in Canada
5
Appointment
6
Status
7
Tenure
8
Interim appointment
9
Duties
10
Salary and expenses
11
Mandate
12
Advice
13
Collaboration
Assistant Commissioner
14
Appointment
15
Duties generally
16
Focus
Inquiries
17
Inquiries
18
Access to information
19
Report
Reports
20
Annual report
Office of the Commissioner for Children and Youth in Canada
21
Establishment
22
Chief executive officer
23
Contracts, etc.
24
Employees
General Provisions
25
Security requirements
26
Confidentiality
27
No summons
Offences
28
Obstruction
Review
29
Review of Act
Consequential Amendments
30
Access to Information Act
32
Financial Administration Act
34
Privacy Act
35
Official Languages Act
36
Public Servants Disclosure Protection Act
Coming into Force
37
Order in Council


1st Session, 43rd Parliament,
68-69 Elizabeth II, 2019-2020
SENATE OF CANADA
BILL S-217
An Act to establish the Office of the Commissioner for Children and Youth in Canada
Preamble
Whereas the true measure of a country is the attention it devotes to its children and youth, including to their well-being, health, security, material situation, education and socialization, and the consideration it gives to their sense of being loved, valued and included in their family and society;
Whereas children and youth in Canada have no independent voice to represent their rights and interests in Parliament, limited opportunity to participate in political processes and no recourse to effective complaint mechanisms when their rights are violated;
Whereas Canada, by ratifying the United Nations Convention on the Rights of the Child on December 13, 1991, recognizes
(a)the right of every child to a standard of living adequate for their physical, mental, spiritual, moral and social development,
(b)the right of every child to have their best interests given primary consideration in all actions concerning them,
(c)the right of every child who is capable of forming their own views to express those views freely in all matters affecting them and the right to have those views given due weight in accordance with the child’s age and maturity, and
(d)the importance of traditions and cultural values for the protection and harmonious development of every child;
Whereas children and youth under federal jurisdiction — such as First Nations, Inuit and Métis children and youth — do not benefit from provincial and territorial human rights protections;
Whereas, on November 10, 2010, Canada announced its support for the principles set out in the United Nations Declaration on the Rights of Indigenous Peoples, and on May 10, 2016, Canada undertook to promote and protect the rights of First Nations, Inuit and Métis peoples by reaffirming that it fully supports the Declaration without qualification;
Whereas, in particular, Canada’s obligations include promoting and protecting the rights of First Nations, Inuit and Métis children and youth as well as respecting the sovereignty of First Nations, Inuit and Métis peoples in accordance with the United Nations Declaration on the Rights of Indigenous Peoples and the recommendations of the Truth and Reconciliation Commission of Canada as part of Canada’s nation-to-nation relationship with First Nations, Inuit and Métis peoples;
Whereas Call for Justice 12.‍9 from the Inquiry on Missing and Murdered Indigenous Women and Girls calls for a child and youth advocate in every province, as well as a federal counterpart;
Whereas Canada recognizes its obligation to consult with and work in cooperation and partnership with First Nations, Inuit and Métis peoples to address matters concerning First Nations, Inuit and Métis children and youth to support their identity, dignity and well-being;
Whereas Canada has obligations in respect of
(a)addressing issues of concern to First Nations, Inuit and Métis peoples — including First Nations, Inuit and Métis children and youth — such as protection from loss of languages, land, resources and well-being,
(b)acknowledging historical practices that separated generations of children from their families and culture, and
(c)consulting with First Nations, Inuit and Métis peoples on their own laws and practices for protecting and supporting children and youth;
Whereas Canada has an obligation to ensure the well-being and rights of children and youth who are racialized, have disabilities or who identify as gender-diverse people or people with diverse sexual orientation;
And whereas it is important that Canada address inequities experienced by all vulnerable populations, especially children and youth;
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Short Title

Short title
1This Act may be cited as the Commissioner for Children and Youth in Canada Act.

Interpretation

Definitions
2The definitions in this section apply in this Act.
children and youth means persons who are under the age of 18 years. (enfant ou jeune)
Commissioner means the Commissioner for Children and Youth in Canada appointed under section 5. (commissaire)
Convention means the Convention on the Rights of the Child adopted on November 20, 1989, by the General Assembly of the United Nations and ratified by Canada on December 13, 1991, including its Optional Protocols, as ratified by Canada and amended from time to time. (Convention)
Governing body means a council, government or other entity that is authorized to act on behalf of a community or people. (corps dirigeant)
government institution means
(a)a department named in Schedule I to the Financial Administration Act, including the minister responsible for it and any person acting on behalf of that minister; or
(b)a division or branch of the federal public administration set out in column I of Schedule I.‍1 to the Financial Administration Act, a corporation named in Schedule II to that Act, a parent Crown corporation as defined in subsection 83(1) of that Act or the Canadian Forces. (institution fédérale)
Minister means the Minister designated under section 3. (ministre)
statutory instrument means any rule, order, regulation, ordinance, direction, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, bylaw, resolution or other instrument issued, made or established
(a)in the execution of a power conferred by or under an Act of Parliament, by or under which that instrument is expressly authorized to be issued, made or established otherwise than by the conferring on any person or body of powers or functions in relation to a matter to which that instrument relates; or
(b)by or under the authority of the Governor in Council, otherwise than in the execution of a power conferred by or under an Act of Parliament. (texte réglementaire)
Office means the Office of the Commissioner for Children and Youth in Canada established by section 21. (Bureau)

Designation of Minister

Order in council
3The Governor in Council may, by order, designate any federal minister to be the Minister referred to in this Act.

Purpose

Purpose
4The purpose of this Act is to establish an independent Commissioner for Children and Youth in Canada to promote, monitor and report on the implementation of Canada’s obligations under the Convention and to advance the rights of children and youth in Canada, giving primary consideration to the best interests of the child in all actions concerning children.

Commissioner for Children and Youth in Canada

Appointment
5(1)On a recommendation made by the Minister under subsection (2), the Governor in Council must, by commission under the Great Seal, appoint a Commissioner for Children and Youth in Canada after
(a)consultation with the leader or facilitator of every recognized party or recognized parliamentary group in the Senate and the leader of every recognized party in the House of Commons; and
(b)approval of the appointment by resolution of the Senate and House of Commons.
Recommendation
(2)Before making the recommendation referred to in subsection (1), the Minister must
(a)advertise the vacancy or prospective vacancy across Canada in a manner sufficient to enable qualified individuals to apply for appointment;
(b)consult with organizations or persons that, in the opinion of the Minister, have a particular interest in the work of the Commissioner, including representatives from First Nations, Inuit or Métis governing bodies and organizations representing First Nations, Inuit and Métis children and youth; and
(c)ensure that the person recommended for appointment is of good character, has proven experience in and a commitment to promoting the rights of children and youth and is qualified in accordance with any criteria established by the Minister.
Status
6The Commissioner is deemed to be
(a)a person employed in the public service for the purposes of the Public Service Superannuation Act;
(b)an employee for the purposes of the Government Employees Compensation Act; and
(c)employed in the federal public administration for the purposes of any regulations made under section 9 of the Aeronautics Act.
Tenure
7The Commissioner holds office during good behaviour for a non-renewable term of seven years but may be removed for cause by the Governor in Council at any time on address of the Senate and House of Commons.
Interim appointment
8In the event of the absence or incapacity of the Commissioner, or if that office is vacant, the Governor in Council may appoint any suitable person to hold that office in the interim for a term not exceeding six months.
Duties
9The Commissioner must engage exclusively in the duties of the office of Commissioner under this or any other Act of Parliament and must not hold any other office or engage in any other employment for remuneration.
Salary and expenses
10The Commissioner is to be paid the salary and expenses set by the Governor in Council and is entitled to be paid travel and living expenses incurred in the performance of their duties while absent from their ordinary place of work.
Mandate
11(1)The mandate of the Commissioner is
(a)to advocate at the national level in Canada for the promotion and protection of the rights, well-being and views of children and youth, particularly those who belong to a vulnerable group;
(b)to collaborate with First Nations, Inuit or Métis governing bodies to include First Nations, Inuit and Métis views and values in the Commissioner’s advocacy for First Nations, Inuit and Métis children and youth;
(c)to foster public understanding and recognition of the Convention, the role and activities of the Commissioner and the rights and well-being of children and youth in Canada;
(d)to monitor the development and application of legislation, statutory instruments and government policies and practices affecting children and youth;
(e)to promote, monitor and report on the effective implementation of Canada’s obligations under the Convention that fall within the legislative authority of Parliament, particularly as they relate to
(i)non-discrimination in ensuring the rights set forth in the Convention,
(ii)the primacy of every child’s best interests in all actions concerning them,
(iii)every child’s right to life, survival and development, and
(iv)the right of every child who is capable of forming their own views to express those views freely in all matters affecting them and the right to have those views given due weight in accordance with their age and maturity;
(f)to review proposed and enacted federal legislation and statutory instruments in order to assess their impact on the rights of children and youth, including consistency with the Convention;
(g)to monitor and report on the implementation of the Convention by government institutions, including in respect of policies, services and programs affecting children and youth and their rights;
(h)to consider any recommendations, suggestions and requests concerning the rights of children and youth that the Commissioner receives from any source;
(i)to assist in the development and implementation, in cooperation with First Nations, Inuit or Métis governing bodies, of programs adapted to the rights, well-being, traditions and needs of First Nations, Inuit and Métis children and youth;
(j)to collaborate and cooperate with authorities across Canada that promote, advocate for or serve children and youth in order to foster common policies and practices and to avoid conflicts in the handling of matters in cases of shared jurisdiction;
(k)to encourage, through the use of media, social networks and other methods, the participation of children and youth, according to their age and maturity, in all aspects of Canadian society and in the activities of the Office and Commissioner;
(l)to consult with children and youth and representatives of children and youth groups, as well as service providers and others, in respect of issues that may have an impact on the lives of children and youth;
(m)to promote accessible and effective complaint mechanisms for children and youth and to monitor their use;
(n)to facilitate access to justice for children and youth and to effective remedies for breaches of their rights and to seek intervener or amicus curiae status as the Commissioner considers appropriate;
(o)to promote First Nations, Inuit and Métis manners of collaboration, advocacy and dispute resolution in relation to First Nations, Inuit and Métis children and youth, with a view to ensuring that all actions regarding their rights are considered in the context of the collective rights of First Nations, Inuit and Métis children and youth;
(p)to encourage the right of First Nations, Inuit and Métis children and youth to maintain cultural connections, including connections with extended families, lands and waters, traditional languages, songs, stories and all forms of artistic expression as markers of their identity; and
(q)to encourage the implementation of First Nations, Inuit and Métis law and legal processes in all matters concerning advocacy for First Nations, Inuit and Métis children and youth, including implementing specific First Nations, Inuit and Métis preferences for protocol, forum, spiritual practice and community involvement.
Mandate — consideration
(2)In carrying out their mandate, the Commissioner is to take into account the multiple and intersecting forms of marginalization and discrimination faced by persons in order to consider the diverse needs of Canadian children.
Advice
12The Commissioner may provide advice to any Minister of the Crown, on the Commissioner’s own initiative or at the request of the Minister.
Collaboration
13The Minister of Foreign Affairs must consult the Commissioner before finalizing Canada’s reports to the United Nations Committee on the Rights of the Child on the implementation of the Convention.

Assistant Commissioner

Appointment
14(1)The Governor in Council may, on the recommendation of the Commissioner, appoint one or more Assistant Commissioners for Children and Youth in Canada.
Tenure of office and removal of Assistant Commissioner
(2)Subject to this section, an Assistant Commissioner holds office during good behaviour for a term not exceeding five years.
Further terms
(3)An Assistant Commissioner, on the expiration of a first or any subsequent term of office, is eligible to be reappointed for a further term not exceeding five years.
Duties generally
15(1)An Assistant Commissioner shall engage exclusively in such duties or functions of the Office under this Act as are delegated by the Commissioner to that Assistant Commissioner and shall not hold any other office under Her Majesty for reward or engage in any other employment for reward.
Salary and expenses
(2)An Assistant Commissioner is entitled to be paid a salary to be fixed by the Governor in Council and such travel and living expenses incurred in the performance of duties under this Act or any other Act of Parliament as the Commissioner considers reasonable.
Benefits
(3)An Assistant Commissioner is deemed to be
(a)a person employed in the public service for the purposes of the Public Service Superannuation Act;
(b)an employee for the purposes of the Government Employees Compensation Act; and
(c)employed in the federal public administration for the purposes of any regulations made under section 9 of the Aeronautics Act.
Focus
16In making a recommendation under subsection 14(1) or delegating duties or functions under subsection 15(1), the Commissioner must consider appointing an Assistant Commissioner for the purpose of ensuring focus on matters related, in particular, to First Nations, Inuit and Métis children and youth.

Inquiries

Inquiries
17(1)The Commissioner may, on the Commissioner’s own initiative or on request from any Minister of the Crown, a committee of the Senate or House of Commons or a member of the public, conduct an inquiry into any matter related to the Commissioner’s mandate, including a systemic inquiry into any matter under federal jurisdiction that affects the rights of children and youth.
Declined inquires
(2)The Commissioner may decline a request for an inquiry for any reason, including that
(a)the Commissioner is of the view that the request is frivolous or vexatious; or
(b)the matter is not related to the Commissioner’s mandate.
Abandonment or set-aside
(3)The Commissioner may abandon or set aside any inquiry as the Commissioner considers appropriate.
Powers
(4)The Commissioner has all the powers of a commissioner appointed under Part II of the Inquiries Act for the purpose of carrying out an inquiry and may make a copy of any document examined in the course of an inquiry.
Powers — places of detention or residence
(5)The Commissioner may, upon reasonable notice and subject to any personal safety and security considerations or restrictions,
(a)enter any place of detention or residence for children and youth under control or operation of the Government of Canada; and
(b)have direct access, in conditions of privacy, to the children and youth detained in a place described in paragraph (a).
Return of documents or things
(6)The Commissioner must return any document or thing to the person who was required to produce it within 10 days after a request for its return is made to the Commissioner, but nothing precludes the Commissioner from again requiring its production.
Access to information
18(1)The Commissioner is entitled to free access, at all convenient times, to all records under the control of a government institution that relate to the fulfilment of the Commissioner’s responsibilities, and the Commissioner is also entitled to require and receive from government institutions and their employees any information, reports and explanations that the Commissioner considers necessary for that purpose.
Exception
(2)Subsection (1) does not apply in respect of any information that is a confidence of the Queen’s Privy Council for Canada as defined in subsection 39(2) of the Canada Evidence Act.
Report
19(1)At the conclusion of an inquiry under section 17, the Commissioner must prepare a report containing a summary of the matter under inquiry and setting out any conclusions and recommendations.
Copy of report
(2)A copy of the report must be provided to the person, Minister, committee of the Senate or House of Commons or other entity that requests it and must be posted on the Office website.

Reports

Annual report
20(1)The Commissioner must, within three months after the end of each calendar year, prepare a report for the year that sets out
(a)the Commissioner’s assessment of
(i)the implementation of the Convention by the Government of Canada during that year; and
(ii)the effectiveness of initiatives taken by the Government of Canada during that year to improve the rights and well-being of children and youth;
(b)the Commissioner’s recommendations to improve the Government of Canada’s implementation of the Convention and the effectiveness of its initiatives for children and youth, including any measures to monitor and respond to initiatives regarding First Nations, Inuit and Métis children and youth; and
(c)the activities of the Office and the Commissioner.
Special reports
(2)The Commissioner may, at any time, prepare a special report on any matter within the Commissioner’s mandate if, in the Commissioner’s opinion, the matter is of such urgency or importance that a report should not be deferred until the time provided for submission of the next annual report made under subsection (1).
Tabling of report
(3)The Commissioner must submit the annual report and any special report to the Speakers of the Senate and the House of Commons and the Speakers must lay any such reports before their respective Houses on any of the first 15 days on which that House is sitting after the Speaker receives the report.
Publication
(4)The Commissioner must post the annual report and any special report on the Office website within 10 days after the day on which it is tabled in both Houses.
Response
(5)The Minister must, within 90 days after an annual or special report is submitted to Parliament, submit a comprehensive written response to the report that addresses
(a)the finding of any violations of the rights of children and youth; or
(b)any impact assessment on the rights of children and youth contained in the report.
Tabling of response
(6)The Minister shall cause a copy of a response prepared under subsection (5) to be tabled in each House of Parliament on any of the first five days on which that House sits following completion of the response.

Office of the Commissioner for Children and Youth in Canada

Establishment
21The Office of the Commissioner for Children and Youth in Canada is hereby established, to assist in fulfilling the mandate of the Commissioner.
Chief executive officer
22The Commissioner is the chief executive officer of the Office and has the control and management of the Office and all matters connected with it.
Contracts, etc.
23The Commissioner may enter into contracts, memoranda of understanding or other arrangements, including contracts to engage the services of legal counsel or other persons having professional, technical or specialized knowledge to advise or assist the Commissioner or the Office.
Employees
24The employees of the Office are to be appointed in accordance with the Public Service Employment Act.

General Provisions

Security requirements
25If the Commissioner, or any person acting on his or her behalf or under his or her direction, receives or obtains information relating to any inquiry or investigation under this or any other Act of Parliament, the Commissioner or the person must, with respect to access to and use of that information, satisfy any security requirements applicable to, and take any oath of secrecy required to be taken by, persons who normally have access to and use of that information.
Confidentiality
26(1)Subject to subsections (2) to (4), the Commissioner, and every person acting on behalf of or under their direction of the Commissioner, may not disclose any information that comes to their knowledge in the performance of their duties and functions under this Act.
Disclosure authorized
(2)The Commissioner may disclose, and may authorize any person acting on behalf or under the direction of the Commissioner to disclose, information
(a)that, in the opinion of the Commissioner, is necessary to carry out an inquiry under this Act or establish the grounds for findings and recommendations contained in any report under the Act;
(b)that is subject to a request for disclosure from a committee of the Senate or the House of Commons;
(c)in the course of
(i)a prosecution for an offence under this Act or under section 131 of the Criminal Code (perjury) in respect of a statement made under this Act; or
(ii)an appeal or subsequent action related to a matter referred to in subparagraph (i).
Disclosure of offence authorized
(3)The Commissioner may disclose to the Attorney General of Canada or of a province information relating to the commission of an offence under a law of Canada or a province if, in the Commissioner’s opinion, there is evidence of such an offence.
Disclosure — harm
(4)The Commissioner may disclose any information in the Commissioner’s possession to any law enforcement agency or agent or to any child protection or welfare agency if the Commissioner believes there is a risk of imminent harm to a child or young person.
No summons
27(1)The Commissioner, and any person acting on behalf of or under the direction of the Commissioner, is not a competent or compellable witness in respect of any matter coming to the knowledge of the Commissioner or that person as a result of performing any duties or functions under this Act in any proceedings other than
(a)a prosecution for an offence under this Act;
(b)a prosecution for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Act or an appeal or subsequent action related to that prosecution.
Protection of Commissioner
(2)No criminal or civil proceedings lie against the Commissioner, or against any person acting on behalf of or under the direction of the Commissioner, for anything done, reported or said, or omitted, in good faith in the course of the exercise or performance or purported exercise or performance of any power, duty or function of the Commissioner under this Act.

Offences

Obstruction
28(1)No person may obstruct the Commissioner or any person acting on behalf of or under the direction of the Commissioner in the performance of the Commissioner’s duties and functions under this Act.
Reprisal
(2)No person may take or threaten to take any reprisal action against a person because that person requested an inquiry under this Act, participated in an inquiry under this Act or otherwise aided the Commissioner in the exercise of the Commissioner’s duties and functions under this Act.
Offences and punishment
(3)Every person who contravenes subsection (1) or (2) is guilty of an offence and liable on summary conviction to a fine of $10,000.

Review

Review of Act
29(1)Within five years after the day on which this section comes into force, the Minister must conduct a review of this Act and make available to the public a written report respecting that review.
Subsequent reviews
(2)Subsequent reviews must be conducted and a report on each review must be made available to the public within five years after the day on which the report on the previous review was made available to the public.
Duty to inform public
(3)The Minister must inform the public of the date on which a review is to begin.
Review to include consultation with children and youth
(4)Every review conducted must include consultation with children and youth and an evaluation of the extent to which their rights, well-being and views have been considered under this Act.
Review to include consultation and address First Nations, Inuit and Métis issues
(5)Every review must be conducted in collaboration with First Nations, Inuit or Métis governing bodies and must include an evaluation of the progress that has been made under this Act in addressing the systemic disadvantage experienced by First Nations, Inuit and Métis children and youth.

Consequential Amendments

R.‍S.‍, c. A-1

Access to Information Act

30Subsection 16.‍1(1) of the Access to Information Act is amended by adding the following after paragraph (b):
(b.‍1)the Commissioner for Children and Youth in Canada;
31Schedule I to the Act is amended by adding the following in alphabetical order under the heading “OTHER GOVERNMENT INSTITUTIONS”:
Office of the Commissioner for Children and Youth in Canada
Bureau du commissaire à l’enfance et à la jeunesse du Canada
R.‍S.‍, c. F-11

Financial Administration Act

32Schedule I.‍1 to the Financial Administration Act is amended by adding the following in alphabetical order in column I:
Office of the Commissioner for Children and Youth in Canada
Bureau du commissaire à l’enfance et à la jeunesse du Canada
and a corresponding reference in column II to “Minister of Justice”.
33Schedule IV to the Act is amended by adding the following in alphabetical order:
Office of the Commissioner for Children and Youth in Canada
Bureau du commissaire à l’enfance et à la jeunesse du Canada
R.‍S.‍, c. P-21

Privacy Act

34The schedule to the Privacy Act is amended by adding the following in alphabetical order under the heading “OTHER GOVERNMENT INSTITUTIONS”:
Office of the Commissioner for Children and Youth in Canada
Bureau du commissaire à l’enfance et à la jeunesse du Canada
R.‍S.‍, c. 31 (4th Supp.‍)

Official Languages Act

35Subsection 24(3) of the Official Languages Act is amended by striking out “and” at the end of paragraph (e), by adding “and” at the end of paragraph (f) and by adding the following after paragraph (f):
(g)the Office of the Commissioner for Children and Youth in Canada.
2005, c. 46

Public Servants Disclosure Protection Act

36Schedule 2 to the Public Servants Disclosure Protection Act is amended by adding the following in alphabetical order:
Office of the Commissioner for Children and Youth in Canada
Bureau du commissaire à l’enfance et à la jeunesse du Canada

Coming into Force

Order in council
37(1)Subject to subsection (2), this Act comes into force on a day to be fixed by order of the Governor in Council.
Royal recommendation
(2)No order may be made under subsection (1) unless the appropriation of moneys for the purposes of this Act has been recommended by the Governor General and such moneys have been appropriated by Parliament.
Published under authority of the Senate of Canada



explanatory notes

Access to Information Act
Clause 30:Text of relevant portion of subsection 16.‍1(1) :
16.‍1(1)The following heads of government institutions shall refuse to disclose any record requested under this Part that contains information that was obtained or created by them or on their behalf in the course of an investigation, examination or audit conducted by them or under their authority:
Clause 31:New.
Financial Administration Act
Clause 32:New.
Clause 33:New.
Privacy Act
Clause 34:New.
Official Languages Act
Clause 35:Existing text of relevant portions of subsection 24(3):
(3)Without restricting the generality of subsection (2), the duty set out in that subsection applies in respect of
. . .
(e)the Office of the Privacy Commissioner; and
(f)the Office of the Commissioner of Lobbying.
Public Servants Disclosure Protection Act
Clause 36:New.

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