Legislative Services Branch Evaluation
4. Evaluation Findings - Relevance of the Legislative Services Branch
This section summarizes the relevance of the LSB services as they relate to federal government priorities, roles and responsibilities, including those of the Department of Justice. Relevance of the LSB is examined by considering:
- The continued need for its services;
- Its alignment with government priorities; and
- Its alignment with federal roles and responsibilities.
4.1 Services Meet a Specific Need of the Government of Canada
The LSB plays a fundamental role in the development of Canadian legislation and regulations as it drafts all bills and regulations for all federal departments and agencies, with the exception of tax legislation. Footnote 33 Drafting bills and regulations in Canada is highly complex and requires the specialized legal knowledge and expertise of LSB counsel and professional staff.
The LSB responds to thousands of requests from client departments and agencies each year. During the evaluation period, the Branch actively managed an average of 2,678 files per year, representing requests from 192 client departments and agencies. Footnote 34 The Branch closed an average of 2,036 files per year during that period. In total, 10,179 files were closed between 2006-07 and 2010-11. Files vary in length and some long-term files can carry on over several years. Six out of 10 (62%) surveyed LSB staff perceived an increase in the volume of requests/files over the past five years, and one-third (33%) felt the volume had remained the same. Table 4.1 provides the total number of actively managed files by type of file for each year of the evaluation period.
|Regulatory drafting||2,029 80%||1,974 74%||1,651 67%||1,420 61%||1,543 46%|
|Bill drafting||149 6%||265 10%||364 15%||286 12%||357 11%|
|161 6%||187 7%||192 8%||379 16%||1,177 35%|
|Revision||32 1%||39 2%||33 1%||39 2%||51 2%|
|Advisory Footnote 35||45 2%||65 2%||74 3%||86 4%||121 4%|
|Other||133 5%||124 5%||139 6%||135 6%||138 4%|
|TOTAL||2,549 100%||2,654 100%||2,453 100%||2,345 100%||3,387 100%|
The iCase data reveal that, after increasing from 2006-07 to 2007-08, the overall volume of actively managed files per year decreased until 2009-10, when there was a sharp increase in the number of files; total file volume increased by 44% between 2009-10 and 2010-11. While there was an increase over the five-year evaluation period in requests for all services except regulatory drafting, the most significant increase occurred in bijuralism/harmonization services, where the number of actively managed files was almost three times that of the previous year and was seven times greater than in 2006-07. Footnote 36 The explanation for the large increase in bijuralism/ harmonization files is that during this period, the Legislative Bijuralism Team (Revision Initiatives) undertook a “blitz de lecture” or “reading blitz” of harmonization files. These files were opened in order to determine which acts and regulations still required harmonization work. Many of these files required minimal review time and were quickly closed (which is evident in an examination of hours devoted to these types of files in Tables 4.2 and 4.3).
There was a marked drop in both the number and proportion of regulatory files over the five-year period, although regulatory drafting accounted for the highest proportion of actively managed files each year. The number of advisory and revision files increased, although both account for only a small proportion of the total requests. According to surveyed LSB staff, the advisory services most frequently requested are legal advice (64%), interpretation of legislative text (57%) and advice regarding the enabling authority (53%). The increase in volume of requests for most types of services over the evaluation period indicates that there is a continued need for LSB legislative services.
Table 4.2 examines the workload of the LSB in terms of the number of hours dedicated to the files by type of file. Regulatory drafting files account for the largest proportion of hours (43%). Over the evaluation period, the total number of hours spent on files increased by 16.2%, the most significant increases in total hours occurring for harmonization (56%) and bill drafting files (54%). However, even though the number of files changed over the five-year period, the proportion of time spent on each type of file remained relatively stable, even for the harmonization files.
|Regulatory drafting||127,782 46%||116,453 43%||130,709 43%||129,513 41%||140,944 44%||645,401 43%|
|Bill drafting||43,860 16%||59,317 22%||62,250 20%||69,818 22%||67,644 21%||302,890 20%|
|27,412 10%||30,780 11%||35,678 12%||40,503 13%||42,830 13%||177,202 12%|
|Revision||12,489 5%||9,787 4%||14,718 5%||13,300 4%||13,261 4%||63,555 4%|
|Advisory||13,171 5%||10,138 4%||10,202 3%||12,407 4%||13,344 4%||59,262 4%|
|Other||53,110 19%||47,400 17%||54,122 18%||49,553 16%||44,725 14%||248,909 17%|
|TOTAL||277,824 100%||273,873 100%||307,679 100%||315,095 100%||322,747 100%||1,497,218 100%|
Legislation, harmonization, revision and advisory services all had greater increases in the number of actively managed files than in the number of client hours. In contrast, despite the 24% decline in the number of regulatory drafting files over the evaluation period, the total number of hours spent on these files increased by 10%. For the remainder (“Other”), there was a very slight increase in the number of files and a proportionately larger decrease in the hours spent on these files. These patterns are evident in Table 4.3, which presents the average number of hours per file by file type. While overall, the average number of hours per bill drafting file decreased 35.6% between 2006-07 and 2009-10, the average number of hours fluctuated year to year, reflecting the nature of the work being done. Footnote 37 With the exception of the harmonization files, the average number of hours per file for all other types of files increased. Significantly more time is spent on a revision or a bill drafting file than on a regulatory file. Excluding the bijuralism/harmonization files, the average number of hours per total LSB files increased by 20.4% over the evaluation period. The impetus for this change is the 45% increase in the average time spent on regulatory drafting files from 2006-07 to 2010-11.
|Average Excluding Bijuralism/Harmonization||104.9||98.5||120.3||139.7||126.7|
Based on the information presented above, it would appear that the nature of demand for LSB services has changed over the evaluation period. The volume of requests/active files has decreased in some areas and increased in others. However, the average hours spent on files has increased. This issue is examined in Section 5.1.6.
4.2 LSB Activities Align with Government Priorities and Support Department of Justice Strategic Outcomes
The LSB responds to legislative services requests related to the existing and emerging priorities of client departments, which in turn, respond to the priorities and policy directions of the federal government. For this reason, the activities of the Branch are inherently linked to the priorities of the government.
In supporting government priorities, federal bills and regulations are drafted to conform to the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and other applicable laws. As well, legislation must take into account the interaction between the federal law and the laws of the provinces and, where applicable, consider the relationship between these legal traditions. When appropriate, Aboriginal traditions are also considered. Clarity and precision in drafting legislative texts facilitate parliamentary debate and promote transparency of practice. Once enacted, the legislative texts drafted by LSB counsel form the framework for government policies and programs.
In addition, supporting the Department of Justice’s strategic outcomes demonstrates that the activities of the LSB also align with federal priorities. The Branch works to maintain and strengthen the bilingual and bijural framework of the Canadian legal system, with a view to ensuring that all bills and draft regulations Footnote 38 are of the highest quality in both French and English, and reflecting both the civil and common law traditions when appropriate. This mandated activity contributes to a fair, relevant and accessible justice system that reflects Canadian values. In addition, the LSB provides legal advisory and legislative services to all federal departments and agencies, thus supporting the Department of Justice’s provision of effective and responsive legal services. The Branch contributes to this outcome by responding to requests from federal departments and agencies to draft legislation that forms the framework for government policies and programs. Further supporting this objective, the LSB provides advisory services and training on legal, policy and language matters related to the drafting, enactment, operation and interpretation of legislative texts. These activities are discussed in greater detail in Section 5 of this report.
4.3 The LSB is Aligned with Federal Roles and Responsibilities
The mandate of the LSB is to provide legal services to the Government of Canada and to support the Minister of Justice in the maintenance of legislated roles and responsibilities.
Under the Department of Justice Act, the role of the Minister of Justice and Attorney General is to provide legal services to the federal government. Under section 4.1 of the Act, the Minister is responsible for the examination of government regulations to ensure conformity with the Statutory Instruments Act, to ascertain whether any of the provisions of government bills and regulations are inconsistent with the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights, and to report any such inconsistency to the House of Commons at the first convenient opportunity. Footnote 39 The LSB supports the Minister of Justice in these functions by drafting bills and regulations, certifying that the Charter review of bills was performed, and examining regulations under the Statutory Instruments Act.
Under section 4 of the Department of Justice Act, the Minister is also the legal advisor to Cabinet, supporting Cabinet’s responsibility for the overall policy direction of the government by providing policy advice and supporting their decision-making process.
Under the Official Languages Act, the federal government must ensure equality of status for both official languages. The co-drafting and revision processes are intended to ensure the highest quality of language in both French and English in order to meet the requirements under the Official Languages Act. Further, under the Policy on Legislative Bijuralism and the Cabinet Directive on Law-Making, the LSB harmonizes existing statutes and regulations to ensure they respect the principles, concepts and institutions of both the civil and common law traditions, when appropriate.
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