Legislative Services Branch Evaluation

5. Evaluation Findings

Performance of the LSB is examined in terms of the effectiveness and efficiency and economy of the services it provides.

5.1 Effectiveness of the LSB

Effectiveness of the LSB is assessed based on the Branch’s contribution to the Department of Justice’s two strategic outcomes. This contribution is accomplished through the achievement of the LSB’s direct and intermediate outcomes.

The level of support to achieving the Department of Justice’s first strategic outcome, a fair, relevant and accessible justice system that reflects Canadian values, is assessed by considering the following outcomes:

  • The LSB’s contribution to a bilingual and bijural federal legislative framework;
  • The LSB’s contribution to the creation of federal legislation that respects the Constitution and other legal requirements; and
  • The LSB’s contribution to the creation of federal legislation that is accessible to Canadians.

The extent to which the LSB is contributing to the achievement of the second strategic outcome, a federal government that is supported by effective and responsive legal services, is assessed by considering the following outcomes:

  • The LSB’s contribution to the creation of legislation that is responsive to federal government policy directions;
  • The LSB’s contribution to government departments and agencies being better able to manage their legal risks;
  • The extent that the LSB has enhanced awareness/understanding of federal legislation, legislative principles, processes and options by federal departments and agencies; and
  • The extent that the LSB has enhanced its capacity to deliver consistent federal legal and legislative products.

The following subsections discuss the effectiveness of the LSB in supporting the two strategic outcomes of the Department of Justice by assessing the extent to which the Branch has achieved its direct and intermediate outcomes.

5.1.1 The LSB’s contribution to a bilingual and bijural federal legislative framework

The LSB has developed and maintained processes dedicated to ensuring the development of legislation that contributes to a bilingual and bijural federal legislative framework.

Co-drafting process

Established in the late 1970s, the co-drafting process was conceived as a way to draft bills and regulations that reflect the equal status of both official languages as well as both systems of law used in Canada. Co-drafting requires step-by-step collaboration between the co-legislative counsel, with the goal of simultaneously producing two original and authentic drafts in French and English where neither is simply a translation of the other. The techniques involved in this process help to ensure the development of draft bills and regulations that meet bilingual and bijural requirements as well as the objectives of the client department or agency. Footnote 40

Key informants reported the co-drafting process to be a primary contributor to Canada’s bilingual and bijural framework. Some LSB managers indicated that this unique process of developing draft legislation and regulations simultaneously in both official languages, as opposed to translating a completed draft, is an approach that is viewed positively by other bilingual jurisdictions. Overall, key informants were satisfied with the co-drafting process. Surveyed LSB staff reported similar satisfaction, as illustrated by the average agreement rating of 8.6, with 44% of respondents fully agreeing (i.e., 10 out of 10) that the current co-drafting model was effective.

Key informants reported that the expertise needed to meet bilingual and bijural drafting requirements can only be found within the Branch.

Revision processes

The revision processes used by the LSB were also mentioned by key informants as important quality assurance mechanisms that ensure accuracy of language and representation of both the common and civil law traditions, when appropriate. Draft bills and regulations are subject to extensive review during the drafting process. For regulations, a preliminary review is completed by co-legislative counsel themselves. The preliminary review of bills is completed by reviewing officers (one French language and one English language legislative counsel assigned to each file) who serve somewhat of a peer review function. After the preliminary review, the draft bills or regulations are reviewed by revisors, bijural experts and jurilinguists.

Bijural experts, or comparative legal counsel, are experts in comparative law as well as legal terminology in both civil law and common law. Their role is to review draft bills and regulations to ensure they address, when appropriate, the four legal audiences: the common law in English, the common law in French, the civil law in French and the civil law in English, if applicable. Jurilinguists are linguists as well as specialists in legal language. They review the drafts to certify that the two official language versions are parallel and convey the same meaning (i.e., there is no divergence), and to ensure the highest possible language quality. Revisors revise the drafts for form and conventions, language, grammar and spelling as well as clarity, consistency of language and the logical expression of ideas. They are also responsible for confirming accuracy of cross-references and checking historical precedents and citations. Footnote 41

Harmonization

The harmonization of existing legislation also contributes to Canada’s federal bijural legislative framework. The LSB is responsible for the harmonization of existing statutes and regulations with respect to principles, concepts and institutions of the civil law of Quebec and of the common law applicable elsewhere in Canada, with special attention to the vocabulary of each legal tradition, in both official languages. Footnote 42 As discussed in Section 4, there were a substantial number of harmonization files opened (and closed) in 2010-11.

Role of the client in the drafting process

The effectiveness of the processes that facilitate the development of high quality bilingual and, when appropriate, bijural drafts, is influenced by the language capacity of clients involved in the drafting process. Legislative counsel interviewed as part of the case studies noted that processes are challenged if clients do not have the capacity to provide detailed drafting instructions in both official languages. This finding is supported by results from the survey, where LSB staff reported an average rating of 5 out of 10 Footnote 43 when asked if clients provide sufficient information and instructions in both official languages. It was noted in interviews that, in cases where short timelines are involved, not being provided the drafting instructions in both official languages often means that drafting has to be started in one language with drafting in the second language starting subsequently. If timelines are extremely short, legislative counsel may have no other option than to proceed with drafting in both official languages, even if instructions are not provided in both languages. These situations compromise and impede the effectiveness of the co-drafting process as the two language versions are not equally supported. However, when the legislative request is less urgent, no work is undertaken on the file by LSB legislative counsel until instructions are received in both languages.

Legislative counsel from the case studies stressed the importance of having clients who have the capacity to provide feedback in both official languages participate in the legislative process. Clients have an important role to play in the drafting and revision processes as they are the experts on the subjects of the drafts and can direct legislative counsel with respect to the policy context and the precise terminology to be used in both official languages. Surveyed LSB staff did not perceive that clients were able to review and comment on drafts in both official languages; the average rating of client ability in this regard was only 4.3.

Results of the case studies suggest a gap in perception with respect to French language capacity: while legislative counsel expressed concern about the French language capacity of clients, clients felt their support to the drafting process in both official languages was sufficient. This gap may be related to the level of French language skills required of LSB staff to produce high quality drafts, relative to the level of French language skills required of clients to perform in their departmental positions.

5.1.2 Tools and resources to support clear, consistent and accessible legislative products

LSB legislative counsel have access to a variety of tools and resources to support the development of clear, consistent and accessible legislative products.

Bijurilex

The LSB developed and maintains the Bijurilex website, a resource that supports the drafting and revision of quality bilingual and bijural legislative products and provides information about the bijural structure in Canada. The Bijurilex website is available to legislative counsel, bijural experts, jurilinguists, revisors and the general public. It serves as a forum to discuss issues related to legislative bijuralism and provides a range of reference materials to help legislative counsel, bijural experts, jurilinguists and revisors address challenges they encounter in the drafting or revision processes.

Due to its specialized subject matter, the Bijurilex website audience is substantially smaller compared to other online Justice resources; however, it is accessed consistently and used by a regular pool of visitors. Based on available statistics, 27% of the site's visitors were repeat users and the average number of daily visits Footnote 44 over the evaluation period ranged between 186 and 267, with daily hits averaging between 464 and 850.

Table 5.1 shows that surveyed LSB staff who rated the Bijurilex site as most useful for ensuring consistency in the drafting process and legislative products tended to be those most engaged in the drafting and revision processes. Ratings of usefulness were lowest among the senior counsel and managers (resulting in mean scores of 4.9 and 5.0, respectively), groups who would not normally use this information in performing their day-to-day tasks. In contrast, professional staff and counsel/legislative counsel rated the site as most useful, with mean scores of 7.4 and 6.5, respectively, and usefulness ratings were also higher among the Advisory and Development Services Section (mean score of 7.5) and the LRSG (mean score of 7.3).

Table 5.1 – Staff Rating of the Usefulness of Bijurilex.ca
Group Type Positive Rating (8 - 10) Mean Score
Results by Classification Level
Professional, non-counsel (n=5) 60% 7.4
Counsel or Legislative Counsel (n=36) 47% 6.5
Managers (n=6) 17% 5.0
Senior Counsel, General Counsel, or Senior General Counsel (n=12) 17% 4.9
Results by Section or Unit
Advisory and Development Services (n=2) 50% 7.5
Legislative Revision Services Group (n=13) 62% 7.3
Legislation Section (n=10) 60% 6.7
Regulations Section (n=34) 24% 5.4
Results by Language of Survey Completion
French (n=34) 44% 5.7
English (n=25) 32% 6.4

Source: Staff Survey; Excludes Unable to Assess/Not Applicable; n=total respondents for each question.

Other tools

Key informants agreed that the LSB has developed practical drafting tools, guides and standards to ensure clarity and consistency. Surveyed LSB staff provided high ratings of usefulness for the following tools: the Justice Laws website (mean of 9.3), regulations manuals (mean of 8.9), EPIC Footnote 45 (mean of 8.6) and other drafting guides (mean of 8.4). It is worth noting that the Justice Laws website and regulations manual were rated as completely useful by those survey respondents who provided a rating (see Table 5.2). Based on the survey responses, CYBERLEX appears to be least useful to LSB staff (mean of 6.0) overall, although there are some employees (24%) who rate it as completely useful.

Table 5.2 - Staff Ratings of Resource Usefulness
Resources Used % Useful
(Rating 8 to 10)
% Completely Useful
(Rating of 10)
Mean Score
Justice Laws website (n=92) 91% 71% 9.3
Regulations Manual (n=79) 81% 62% 8.9
EPIC (n=74) 85% 49% 8.6
Other Drafting Guides (n=81) 74% 44% 8.4
Termium (n=86) 64% 29% 7.6
Legislation Deskbook (n=76) 61% 38% 7.5
CYBERLEX (n=74) 45% 24% 6.0

Source: Staff Survey; Excludes Unable to Assess/Not Applicable; n=total respondents for each question

Accessibility

It was mentioned that there is an increased expectation that new bills and regulations be drafted in plainer language. A few key informants discussed the challenge for legislative counsel to achieve a balance between legal precision and ease of understanding and application. DLSU counsel mentioned that some legislative counsel have become very skilled at achieving this balance.

Overall, clients are satisfied with the clarity of the drafted texts. Surveyed clients reported a mean satisfaction score of 8.5 with the clarity of the drafts developed by the LSB.

Accessibility of Canadian bills and regulations is a priority of the Department of Justice. The Justice Laws website is the main source for all current Canadian legislation and regulations. Key informants reported that the website is very useful and agreed that it is an effective means of maximizing access to federal legislation for Canadians. The usefulness of the Justice Laws website is reflected in the heavy usage of the site. According to available statistics, the site averages over 40,000 visits Footnote 46 per day, with up to 1.5 million hits per day over the evaluation period. Approximately 22% of visitors used the site at least twice within one month.

Key informants provided a few suggestions for improvements to the Justice Laws website, including providing texts in a wider range of formats (e.g., for the visually impaired). Footnote 47 It was suggested that an indication of which laws and regulations were in the process of being updated would be helpful. This way, users would be aware that the document currently available would be revised, and should be revisited, in the near future.

Despite minor areas for improvement with respect to this website, there is considerable satisfaction with the accessibility of legislative products overall. Surveyed clients reported high levels of satisfaction (mean score of 9.2) with respect to being able to access texts in the official language of their choice; 69% were completely satisfied. They also reported a high rating of satisfaction (mean of 8.9) with the provision of texts in formats that are easy to access; 51% of those who provided a rating were completely satisfied.

5.1.3 Development of legislation that respects the Constitution and other legal requirements

Bills and regulations that the LSB drafts or examines in partnership with counsel from DLSUs and the Public Law Sector, must be in accordance with the provisions of the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights, the Statutory Instruments Acts and other relevant federal acts.

During the interviews with LSB staff, it was noted that legislative counsel gain a comprehensive knowledge of Charter, Bill of Rights and other legal requirements through the Branch’s internal legislative drafting training program (discussed in Section 5.1.10). LSB staff can also refer to a number of guides and tools and consult with Public Law Sector counsel in the Department of Justice, who are public law experts in areas such as constitutional and administrative law, Canadian Charter of Rights and Freedoms, human rights law, language rights, and information law and privacy. Legislative counsel who participated in the case studies mentioned that the combination of training and experience results in knowledgeable LSB counsel who consider Charter, Bill of Rights and other legal requirements throughout the drafting process. As explained by LSB staff, this knowledge and awareness become second nature over time. It was noted that, while experienced legislative counsel may not need to refer to the guides often, these legal requirements are always considered during the drafting process. Clients interviewed as part of the case studies reported having confidence in the legislative counsel’s knowledge of Charter, Bill of Rights and legal requirements, and trusted their approach to ensuring these were met.

5.1.4 LSB support to federal government policyThe LSB has managed and addressed thousands of requests for drafting, advisory and other services from numerous federal departments and agencies. Key

informants noted that, by addressing client needs and developing legislation and regulations based on policy instructions provided by the government, the Branch is inherently responding to the policy directions of the federal government.

As previously reported, the LSB actively managed an average of 2,678 files per year over the evaluation period. Table 5.3 provides the number of closed files by the ten client departments with the greatest volume of files. It should be noted that the sharp drop in closed PCO files from 2007-08 to 2008-09 is the result of a change in how Orders in Council (OICs) are documented (i.e., by Treasury Board meeting rather than by individual OIC), which results in approximately 20 OICs being contained in a single file rather than 20 separate files. It was noted by LSB staff that approximately 500 to 600 OICs are now housed in approximately 26 files.

Table 5.3 - Files Closed by Top Ten Client Departments Footnote 48
Department 2006-07 2007-08 2008-09 2009-10 2010-11 Total
Transport Canada 154 139 208 913 586 2,000
Privy Council Office 648 878 136 113 115 1,890
Department of Justice 375 215 127 258 712 1,687
Department of Finance 119 86 89 144 146 584
Environment Canada 91 58 83 156 87 475
Health Canada 99 76 73 75 139 462
Agriculture and Agri-Food Canada 49 28 12 44 126 259
Industry Canada 42 54 43 65 46 250
Foreign Affairs and International Trade Canada 22 54 28 52 90 246
Aboriginal Affairs and Northern Development Canada 28 69 44 53 38 232

Source: iCase.

5.1.5 Quality of LSB’s working relationships with Department of Justice counsel and clients

Stakeholders reported the positive and effective working relationships with the LSB that have developed between LSB staff, DLSU counsel and client departments. Based on interview responses, two factors were found to support these positive relationships: low staff turnover at the LSB and the assignment of legislative counsel to the same clients, where possible.

The low turnover rate of LSB staff allows long-term working relationships to develop between legislative counsel, DLSU counsel and clients. Most survey respondents (70%) have been working at the LSB for at least six years, with 55% having worked at the Branch for over 10 years. Many interviewed DLSU counsel and clients added that having the same legislative counsel assigned to their department’s requests not only allowed them to develop good working relationships, but it also minimized the “learning curve” for new legislative counsel having to become familiar with a department, its programs and its context.

While most LSB legislative counsel work within LSB headquarters, the balance is assigned to the three Departmental Regulations Sections. Overall, DLSU counsel and clients reported having very positive experiences and good communication with LSB staff. In those departments with a Departmental Regulations Section, clients and their DLSUs noted that they have the advantage of working in close physical proximity to the legislative counsel, thereby facilitating good communication, as they are able to consult quickly and often.

LSB staff survey results suggest that coordination and integration internal to the Branch are also effective, particularly with respect to staff being able to have access to the expertise of bijural experts, jurilinguists and legistic revisors. Advisory and revision staff as well as legislative counsel and management staff rated consultations with bijural experts, jurilinguists and legistic revisors as sufficient and timely. Lower ratings were reported for consultations with legislative counsel from the Legislation Section. Table 5.4 summarizes ratings provided by surveyed LSB staff with respect to the sufficiency and timeliness of consultations with various groups within the LSB.

Table 5.4 – LSB Staff Ratings of the Sufficiency and Timeliness of Consultations – Internal to the LSB
Group Advisory and Revision Staff Legislative and Management Staff
Total responding % Rating 8-10 Mean Score Total responding % Rating 8-10 Mean Score
Bijural experts 40 83% 8.8 67 88% 9.0
Jurilinguists 45 78% 8.4 69 78% 8.5
Legistic Revisors 43 77% 8.4 69 80% 8.5
Legislative counsel from the Regulations Section 42 71% 8.1 62 63% 7.8
Senior counsel, general counsel and senior general counsel from LSB 47 68% 7.7 68 66% 7.9
Legislative counsel from the Legislation Section 38 53% 7.4 52 54% 7.0

Source: Staff Survey; Excludes Unable to Assess/Not Applicable.

Table 5.5 summarizes ratings provided by surveyed LSB staff with respect to the sufficiency and timeliness of consultations with various groups outside the LSB, where the average ratings are much lower than those reported for internal consultations. In Table 5.4, the lowest mean score for internal consultations was 7.0. In Table 5.5, all external consultation scores were below 7.0. These results suggest that improvements to the coordination with some groups external to the Branch may be required to fully support the work of the LSB.

Table 5.5 - LSB Staff Ratings of the Sufficiency and Timeliness of Consultations – External to the LSB
Group Advisory and Revision Staff Legislative and Management Staff
Total responding % Rating
8-10
Mean Score Total responding % Rating
8-10
Mean Score
Public Law Section 31 52% 6.8 49 49% 6.6
Privy Council Office 15 47% 6.5 36 56% 6.8
Other Central Agencies 20 40% 6.1 27 44% 6.4
Other Justice Sections 24 38% 6.4 35 40% 6.8
Criminal Law Policy Section 18 28% 6.0 33 36% 6.0

Source: Staff Survey; Excludes Unable to Assess/Not Applicable.

5.1.6 Capacity of LSB to meet changing demands

The LSB continues to be responsive to the needs of the federal government despite a changing drafting environment characterized by shorter timelines and greater complexity of requests for legislative services.

There was broad agreement across lines of evidence that timelines for drafting files are decreasing. Eighty-eight percent (88%) of surveyed LSB staff reported that the number of files with short timelines for completion had increased over the past five years, and some key informants mentioned that short timelines are now considered the norm. Over one-half (55%) of the files reviewed were identified as high priority: 62% of legislation drafting files and 50% of regulatory drafting files. Primary concerns with respect to short timelines mentioned by key informants are the challenges associated with maintaining product quality and the possibility of not adequately addressing legal risk.

An issue related to high priority files and short timelines is that legislative files for bills are increasingly being granted pre-drafting authority. Pre-drafting authority is a mechanism that allows the drafting process to begin prior to obtaining formal approval from Cabinet. Sixty-two percent (62%) of the bill drafting files from the file review had been granted pre-drafting authority. Of those who responded to the staff survey question (n=20), nearly all reported that the number of files with pre-drafting authority had increased. Key informants noted that files for which pre-drafting authority has been granted can have associated challenges related to efficiency and the fluidity of the drafting process, as it is often necessary to continually make changes to drafts until Cabinet approval has been granted and drafting instructions have been fully developed.

The increased complexity of files was also commonly mentioned by key informants. This trend was also recognized by surveyed LSB staff, 69% reporting that they noticed an increase in complex files. Results of the file review provide some insight into the factors that contribute to file complexity. Sixty-two percent (62%) of legislative drafting files also involved regulatory components and/or included related regulatory/legislative/litigation files. Over half (56%) of the regulatory files reviewed received public feedback, and 62% of the regulatory files required changes prior to publication in the Canada Gazette, PartII. This finding is also supported by the increase in total hours for LSB files and average hours per file over the evaluation period.

Surveyed LSB staff provided additional insight into factors that increase the challenges associated with a file. Just over half (54%) of the staff noted an increase in files that involved both legislative and regulatory drafting at the same time (29% were unable to assess) and 37% indicated that files are more likely to involve more than one government department/agency (30% were unable to assess). More than one-quarter (28%) of the LSB staff surveyed noted an increase in files that had economic or fiscal aspects that required the involvement of the Department of Finance (41% were unable to assess). Seven of the 21 (33%) counsel from the Legislation Section reported an increase in the number of files with motions to amend (29% were unable to assess). Nineteen per cent (19%) of surveyed LSB staff involved in drafting regulations noted that there was an increase in files that required significant changes prior to publication (25% were unable to assess).

Despite the challenges, legislative products are generally being delivered within requested or negotiated timeframes. Clients reported high levels of agreement that the LSB met mutually acceptable deadlines for delivery of the product for both regulatory (mean of 8.6) and legislation drafting (mean of 8.1).

5.1.7 Client satisfaction with LSB services

Client feedback provided through various lines of evidence revealed high levels of satisfaction with the services provided by the Branch. DLSU counsel and clients acknowledged the LSB’s ability and flexibility in helping clients find solutions to meet their needs. Interviewed clients reported high levels of satisfaction with the work produced as well as the LSB’s ability to accommodate challenging deadlines. This finding is also reflected in the results of the client survey, where the average satisfaction rating with the Branch’s capacity to respond to requests was 8.1, with 35% reporting they were completely satisfied (i.e., rated 10 out of 1 to 10). The services provided by the LSB are considered to be comprehensive; most surveyed clients (91%) reported that there were no gaps in the kinds of services provided by the Branch.

Surveyed clients agreed that the LSB provided high quality services; clients who received legislative services provided an average rating of 8.6, and those who received regulatory services provided a mean rating of 8.5. Clients were also satisfied (mean of 8.2) with the consistency of the advice and legislative products provided; 33% were completely satisfied (scored 10 out of 10). Surveyed clients reported positively for a variety of elements when working with the LSB, as demonstrated in Figure 5.1. The one area that appears to require some improvement is fully understanding the nature of the problem/issue associated with requests for regulatory services (mean of 7.8). It could be that this result is related to LSB staff receiving incomplete information from clients when they make their requests, or from working to meet shorter deadlines.

Figure 5.1 – Strength of Client Opinion on the Provision of LSB Services (Mean Ratings)

Figure 5.1 - Strength of Client Opinion on the Provision of Legislative Services Branch Services (Mean Ratings)

Source: Client Survey; Excludes Unable to Assess/Not Applicable.

Figure 5.1 - Text equivalent

Surveyed LSB clients were asked to rate five characteristics of the LSB legal service based on a 10-point scale. The bar graph compares the results of the mean ratings provided by those who had received legislative services for drafting bills with those who had received services for drafting regulations.

Fully understood the nature of the problem/issue for which you received assistance (Regulations, n=145, Bills, n=70); Regulations Score: 7.8; Bills Score: 8.2

Advised you on issues/developments which may impact your department/agency (Regulations, n=130, Bills, n=67); Regulations Score: 8.5; Bills Score: 8.7

Sought your expectations regarding the desired policy outcomes of the legislative/regulatory drafting (Regulations, n=130; Bills n=66); Regulations Score: 8.5; Bills Score: 8.6

Provided options (e.g., instrument, alternatives) appropriate to your policy and program objectives (Regulations, n=111; Bills, n=57); Regulations Score: 8.6; Bills Score: 8.5

Regularly provided informative progress reports or ongoing feedback about the status of your request for services (Regulations, n=135; Bills, n=69); Regulations Score: 8.2; Bills Score: 8.5

5.1.8 LSB’s contribution to managing legal risks

As part of the Branch’s role in developing the legislative framework of departments and agencies, clients reported that LSB counsel play a key role in helping departments manage any legal risks associated with drafting bills and regulations. Some LSB managers specified that the role of the Branch is to identify and assess the legal risks associated with a file and to provide options to help mitigate these risks while still achieving the client’s objectives. However, it is the ultimate responsibility of the clients to decide how their department will manage the identified risks. Legislative counsel follow internal policies, guidelines and checklists that allow them to provide consistent and coherent legal advice to clients. LSB staff also has access to other legal professionals and specialists in the Department of Justice who can provide advice on legal risk when needed, such as counsel in the Public Law Sector. Key informants mentioned that minor risks can be easily addressed between legislative counsel and clients in the drafting room. Higher levels of risk follow a more formal process, are well documented, and include possible mitigation options. Footnote 49

Clients are satisfied with the assistance provided by the LSB in managing their legal risks. Interviewed clients noted that the advice provided by the Branch in terms of managing risks was useful and practical. They were satisfied with the level of communication and collaboration as well as with the process of identifying the risks and developing mitigation strategies. Clients from the case studies also noted that their involvement in these processes was beneficial to increasing their knowledge of legal risks and the way to avoid them in future policy and legislative product development. Surveyed clients expressed high levels of satisfaction with the support provided by the LSB to help them to manage risk, as presented in Table 5.6.

Table 5.6 - Level of Client Agreement with Level of Risk Management Assistance
  Positive Rating
(8-10)
Mean Score
Identified potential legal risks related to the legislative drafting work
Clients provided with services from Regulations Section (n=134) 85% 8.5
Clients provided with services from Legislation Section (n=69) 81% 8.4
Involved you in the review/development of legal options to mitigate identified legal risks
Clients provided with services from Legislation Section (n=65) 77% 8.2
Clients provided with services from Regulations Section (n=128) 73% 8.1

Source: Client Survey; Excludes Unable to Assess/Not Applicable; n=Total respondents for each question.

5.1.9 Training

The work of the LSB is highly specialized and is unique to the Canadian federal context. While all LSB legislative counsel have a degree in law, their position also requires specialized knowledge and experience to draft bills and regulations, particularly in a bilingual and bijural context. In the absence of a specialized degree program in legislative drafting, the Branch provides extensive training to its legislative counsel. Mentorship reportedly also plays an important role in ensuring the development of effective legislative counsel. As explained by LSB management, the mentorship model in the Branch can take many forms, including establishing formal mentorship relationships as well as legislative counsel seeking advice from more experienced colleagues. Co-drafting permits less experienced legislative counsel to work with more experienced counsel, and this serves as another means of providing training.

During the evaluation period, the LSB delivered 76 training sessions as part of its internal legislative drafting training program. Training sessions varied in length from one day to several days and focused on topics such as basic legislative drafting, statutory interpretation, substantive limits on regulation making, and the legislative and regulatory processes. The LSB also held 89 workshops during the evaluation period. Workshops most commonly lasted a full or half-day and covered a broad range of topics such as the importance of context in legislative texts, definitions, structure and composition, and many others. The Branch delivered an average of 36 training activities to its staff each year. Surveyed LSB staff most commonly reported receiving training on substantial law issues (91%), legislative drafting (89%), interpretation (87%), the legislative process (69%) and the regulatory process (71%).

When asked when they received their last internal training session, most surveyed Branch staff (72%) reported having received it within the previous year, and 26% said it was between one and five years ago. Only 2% of staff reported having received their last internal training over five years ago.

Survey results indicate that some LSB staff would like additional training opportunities in certain areas. When asked if the frequency of internal Branch training is adequate, the mean level of agreement was 7.3, suggesting that there are some who would like training more often. The survey also asked if staff would like additional training. Forty-four percent (44%) answered affirmatively with most specifying the focus of training being on specific topics of law. Among those who requested additional training, the following topic areas were identified: legislative drafting (50%), interpretation (44%), regulatory processes (27%), and the legislative process (26%).

Despite the reported need for some additional training, results of the 2011 PSES show that LSB employees reported greater satisfaction with training than did other federal public service employees. Most of those who responded to the PSES from LSB (87%) agreed (with 54% strongly agreeing) that they received the training they needed to do their job. This level of agreement is higher than that reported by employees in the Department of Justice (76%) as a whole and the public service overall (69%). Agreement was also higher among Branch employees with respect to the Department supporting their career development. Seventy percent (70%) of LSB employees agreed that their career development was supported, as compared to 63% of employees from the Department of Justice as a whole or 59% from the public service.

5.1.10 The need for clients to understand their role in legislative drafting processes

The LSB makes an effort to provide some training to client departments to increase their knowledge of issues and processes related to drafting bills and regulations. The goal of this training is to provide clients with the knowledge required to prepare complete instructions for and participate in the drafting process.

Just over half (52%) of the LSB staff surveyed reported having conducted some type of training activity Footnote 50 outside of the Branch. The majority (58%) of these (n=48) indicated they had last provided training within the previous year, and 25% said they had last provided training within the previous five years, with the remaining 17% having provided training more than five years before. Ninety percent (90%) of those who had provided training provided it to clients while 60% provided it to other Department of Justice staff. Training topics included: the regulatory process (57%), substantive law issues (42%), legislative drafting (36%), interpretation (33%), and the legislative process (19%).

Key informants mentioned that the LSB’s external training capacity is challenged by the increasing volume of high priority files, limiting the time available to provide training. Survey results confirm that a large proportion of clients are not receiving training; less than half (47%) of surveyed clients reported having received training from the LSB about legislative principles, processes and options. However, for those who did, the experience was beneficial and was rated as good or very good with respect to content (94%), relevance (90%) and clarity (91%).

The high turnover of staff in many federal departments and agencies was also mentioned by key informants as a challenge to maintaining clients’ level of knowledge about the drafting process, roles and responsibilities in the longer term. Staff turnover creates a gap in knowledge as transfer from those who have been trained in or have experienced the drafting process often does not occur. One reason for this is that the need for legislative services can be intermittent, occurring every few years, thereby increasing the possibility that knowledge transfer will not occur. As a result, for client training to be effective, it would have to be conducted on a fairly regular basis.

There appears to be a gap between clients’ level of understanding of the drafting process and their essential role and responsibilities within the process. While most surveyed clients (74%) reported having good or very good awareness of legislative principles, processes and options, feedback from LSB staff suggests a different perspective. Interview and case study participants noted the importance of client involvement with respect to ensuring a fluid and efficient drafting process and the development of a quality product. However, more preparation on the part of clients is required to achieve this within the requisite timelines. LSB managers noted that client requests are often not fully prepared. Results of the file review support this observation. In all cases reviewed, at least one piece of information was missing. Table 5.7 summarizes the proportion of files from the file review that contained the information required to support the instructions.

Table 5.7 - Quality of Instructions
Instruction Contents Count Percent
Instructions were revised/changed significantly 16 55.2%
Enabling authority identified 15 51.7%
Pre-drafting authority identified 8 27.6%
MC provided 8 27.6%
Critical path provided 7 24.1%
Regulatory Impact Analysis Statement provided 5 17.2%

Source: Drafting Files Q8a-c, Q9a-d; n=29.

Results from the staff survey also suggest that clients lack a full understanding of their role in the drafting process in terms of providing the necessary instructions and information with their requests. LSB staff reported low levels of agreement with respect to clients providing adequate information to support the services requested (mean of 5.3); the necessary policy development to support the request (mean of 5.0); background information to support the request (mean of 4.9); and the information and instructions in both official languages (mean of 5.0). It was noted that the issue is not only the clients’ lack of knowledge of legislative processes, but also an overall lack of capacity within client departments’ policy areas (in terms of fully developing their policy work in advance of the start of the legislative drafting process), which creates further challenges within the drafting process.

5.2 Efficiency and Economy

Efficiency of the LSB is assessed by considering utilization of resources, capacity to meet demand, coordination and integration of activities, and technological support. Economy of the Branch is examined by considering whether the current financial model provides appropriate and sustainable funding.

It is important to reiterate that the efficiency and economy analysis was constrained by the lack of information in iCase concerning the level of complexity and legal risk of LSB files. As a result, it was not possible to assess the extent to which the appropriate level of counsel is being assigned to a file, one of the measures of efficiency and economy identified in the evaluation framework. However, the co-drafting model used by LSB typically involves less experienced legislative counsel working with those more experienced, which apart from the training value, can translate into savings for the client.

5.2.1 Management of staff resources to meet demand

The LSB currently employs approximately 200 staff, approximately 57% of whom are counsel, legislative counsel, senior counsel, general counsel or senior general counsel. Professional, non-counsel employees (including revisors and jurilinguists) represent 17% of LSB staff, with other staff, including management and administration, making up the remaining 26%. The total number of full-time equivalents Footnote 51 increased by 12% over the evaluation period and by 4% between 2009-10 and 2010-11.

To meet increasingly complex drafting requests and increasing demand overall, the Branch has been working at maximum capacity within current resource levels. Findings from the interviews and case studies suggest that LSB management must often reallocate legislative counsel to high priority files, which can result in other files having to wait until a full drafting team is available to work on them or having to change the drafting team part way through the file, neither of which is a desirable situation from the perspective of the clients or the legislative counsel. In 10 of the 29 legislative files reviewed, there was evidence of a change in legislative counsel at some point during completion of the file. Similarly, in the case studies, all of which were high priority files, the interviewed clients mentioned that many legislative counsel had been reassigned to their file (from others) in order to meet deadlines.

A considerable proportion of the Branch staff is concerned with the practice of being reassigned to different files. Results from the 2011 PSES indicate that 40% of LSB staff reported that the quality of their work suffered as a result of changing priorities. Some key informants noted that making changes to the team of legislative counsel during the course of a file can slow its progress.

The survey results suggest that LSB staff has some concerns with respect to resource allocation. The average levels of agreement that file assignment was appropriate in terms of experience and workload were 6.7 and 6.3, respectively. These results could be a reflection of the higher complexity of the files and an increase in the number of less experienced staff, as suggested by LSB managers surveyed and interviewed.

In the survey of LSB staff, just over half (52%) of the respondents (including 75% of managers and 73% of senior counsel) reported a gap or shortcoming in LSB services. In particular, they identified issues related to human resources such as an insufficiency in the number of staff and the need to train new staff. These same issues were reflected in the interviews, where Branch managers expressed concern with the current level of resources in light of changes in the demand for services. They highlighted a need to augment the capacity and expertise of their teams. Other challenges associated with limited resources mentioned by key informants included the impact on quality of service and meeting timelines for other files, and the limited capacity to provide complementary services such as client training and presentations.

It should be noted that the hiring of new counsel is not likely to provide an immediate solution to these resource challenges. The current Department of Justice Human Resources Management Plan 2013-2016 states that the hiring of new counsel will be restricted largely to entry-level counsel or those hired through the Legal Excellence Program, the Department’s articling program. This means that even if the Branch was able to hire new legislative counsel, it would take considerable time to train them as there is no other place where they can receive training in legislative drafting. These pressures will continue to grow as more experienced counsel reach retirement age, leaving fewer counsel to mentor those more junior.

Some staff (31%) reported duplication of effort, referring mainly to the activities of the French jurilinguists and revisors. This issue was also mentioned by some case study participants. A possible explanation for the perceived duplication of effort is because the instructions and co-drafting processes often are started, sometimes even completed in English (due to the limited French language ability of many clients). The French revisors and jurilinguists have to spend more time and effort ensuring that the drafts are accurate in both language versions, sometimes correcting each other’s work.

5.2.2 The impact of increasing demand on quality of service delivery

Clients are currently satisfied with the Branch’s capacity to accommodate their requests and deadlines; however, meeting the increased demand for services with available resources is becoming increasingly challenging.

As noted previously, the LSB completed over 10,000 files during the evaluation period, actively managing an average of 2,678 files per year. The total hours spent on files has increased every year, despite fluctuations in the number of actively managed files.

Issues related to current and future capacity of the Branch were often mentioned by evaluation participants. LSB managers reported that current levels of demand were only being met due to the dedication of LSB staff who works a considerable amount of overtime. It was noted that working overtime is now the norm for legislative counsel, jurilinguists and legistic revisors and, while appreciative of the strong work ethic, LSB managers expressed concern that, over the longer term, the quality of the products and the staff well-being could be adversely affected.

While clients reported being satisfied with the services, LSB managers, DLSU counsel and PCO/TBS representatives expressed concern with the Branch’s capacity to maintain the same high quality services and products in the current and anticipated drafting environment. The volume and complexity of requests are expected to increase or continue over the next few years, and many of those interviewed were concerned with the ability of the LSB to maintain high levels of responsiveness and service quality in a climate of fiscal restraint.

5.2.3 Use of technology to enhance LSB capacity and efficiency

The LSB utilizes an extensive set of information technology (IT) tools that help to maximize efficiency and capacity. A highly customized suite of tools was developed to facilitate drafting, making amendments, printing, consolidating and publishing legislative products. Specialized Intranet-based search engines were also developed for the exclusive use of the Branch. Legislative counsel working in the Departmental Regulations Sections have access to the same tools.

There are designated rooms equipped with two computers and four monitors designed to accommodate the drafting process. The extra monitors allow clients to watch the development of the drafts and to facilitate their participation in the process. Key informants noted that drafting rooms are used regularly and results from the staff survey highlighted the need for additional drafting space, as 37% reported that drafting rooms are available when needed and 35% said they were adequately equipped. Two new drafting rooms were recently constructed at Headquarters to address this need.

LSB staff reported being satisfied with the IT available; 76% of those surveyed agreed that they had sufficient and appropriate IT tools and support to work efficiently and effectively. While all responses were positive, there was some variance between groups, as demonstrated in Table 5.8.

Table 5.8 - Staff indicating Sufficient and Appropriate IT and Support
LSB Staff Total responding %
Counsel or Legislative Counsel 56 80%
Managers 8 75%
Professional, non-counsel 11 73%
Senior Counsel, General Counsel, or Senior General Counsel 17 71%
Total 92 76%

Source: Staff Survey; Excludes Unable to Assess/Not Applicable

High levels of satisfaction with the tools available were reported by LSB employees in the 2011 PSES, where 50% strongly agreed and 42% somewhat agreed that they had the materials and equipment needed to do their job. These results were more positive for the LSB staff when compared to the responses for the Department of Justice (39% strongly agree, 46% somewhat agree) and the public service overall (36% strongly agree, 46% somewhat agree).

Branch managers mentioned that the use of technology is very important to maximize work capacity and efficiency. For this reason, tools have been improved over the last few years, which has allowed for teleworking and other flexible work arrangements to support the capacity of staff not working on secret documents to meet an increasing workload. According to the 2011 LSB, a larger proportion (27%) of LSB staff conducts telework compared to staff in other parts of the Department of Justice (11%) and in the public service (6%). Key informants emphasized that security requirements are strictly upheld in these more flexible working arrangements to protect confidentiality.

Other jurisdictions also use technology for increased efficiency. In the United States, the Offices of the Legislative Counsel currently use THOMAS, a legal research tool named after Thomas Jefferson. Footnote 52 This website, hosted by the Library of Congress, allows researchers to search and access federal bills, acts, the congressional record, committee reports, and a myriad of other resources. One can watch live video of congressional debates on research laws and legal history back to colonial times. THOMAS is scheduled to be replaced by a new search engine, congress.gov, which should be in place by the end of 2014.

In New Zealand, the Parliamentary Counsel Office maintains the New Zealand Legislation website in order to discharge its duty to publish its federal laws. Footnote 53 The Office recently revamped this website following a usability review of its predecessor. The improved version of the website incorporates new functionalities as well as feedback elicited from the public. Footnote 54 The New Zealand Legislation website presents not only current laws, but also historical acts dating back as far as 1841. A private company, Unisys New Zealand Ltd., is contracted for the maintenance and support of the New Zealand Legislation system. Footnote 55

Limited information is available regarding the use of IT by Australia’s Office of Parliamentary Counsel. The Office utilizes a traditional law library managed with Follett’s Athena software system and is staffed by a librarian. Footnote 56 Electronic research tools (e.g., Lexis Nexis, Statute Law Review, Clarity) are employed as well, but the use of printed books remains significant. Footnote 57

5.2.4 Cost recovery

The mixed financial model used by the Branch seems to be appropriate in meeting its financial needs. Under this model, costs incurred from administration, management and harmonization activities are covered under A-base funding, with the remaining costs recovered from clients based on the level of legislative advisory or other legislative services provided. Some services are funded through both Department of Justice allocations and costs recovered from the client departments.

The Net Vote Authority (NVA) is the amount received through cost recovery that can be re-spent by the Department of Justice. The NVA was established during fiscal year 2009-10. Prior to this, costs were recovered through Client Agreements and any surplus remaining at the end of the fiscal year was returned to the Justice Department central repository. Footnote 58 Table 5.9 summarizes the proportion of costs covered under A-base funding and through cost recovery/NVA over the evaluation period. While the proportion of monies received through cost recovery has increased over the evaluation period from less than a third to nearly half of their resources, the amount LSB receives through cost recovery has more than doubled.

Table 5.9 – Proportion of A-base Funding/Cost Recovery
Fiscal Year Forecasted Costs Actual Costs A-base Funding % of A-base Funding Cost Recovery % Cost Recovery
2006-07 21.6M$ 19.7M$ 14.1M$ 71.8% 5.6M$ 28.2%
2007-08 21.6M$ 20.9M$ 13.5M$ 64.7% 7.4M$ 35.3%
2008-09 21.6M$ 21.2M$ 12.5M$ 58.8% 8.8M$ 41.2%
2009-10 21.6M$ 23.9M$ 14.9M$ 62.0% 9.1M$ 38.0%
2010-11 22.0M$ 24.6M$ 12.9M$ 52.5% 11.7M$ 47.5%

Source: LSB.

Funding models used by legal services Footnote 59 in other jurisdictions that were reviewed for the evaluation vary. The United States Footnote 60, Footnote 61 and New Zealand Footnote 62 legislative services are entirely funded through A-base funding while Australia Footnote 63 and the United Kingdom Footnote 64 use a mixed model. The ratio of costs covered through A-base funding and cost recovery for the United Kingdom (60/40) is similar to the Canadian model (62/38). In contrast, Australia legislative services are heavily funded by appropriations with only 1% being funded through cost recovery. Footnote 65

Recent changes to the cost-recovery processes have not been well accepted by either staff or clients. LSB managers expressed concern over the time and knowledge required to administer cost recovery. Since its establishment, managers reported being burdened by the additional administrative task, limiting their capacity to actively participate in client files and manage staff. Branch managers also noted their lack of training to work within a cost-to-client environment and to navigate a complex invoicing system. Interviewed clients were equally concerned with the new mechanism, noting that it was difficult to forecast their drafting needs and include the related costs in budget planning. They also reported that the invoices were difficult to understand. Some key informants did not understand the benefits of a system which demands considerable resources to transfer funds across federal departments.

It was noted by other key informants that the administration processes for cost recovery are relatively new and that perfecting the process requires time. A few mentioned that the cost recovery approach may help clients to be more selective in their requests for LSB services, to focus on priority files, and to be better prepared with the necessary information in order to minimize unnecessary billed time. As of April 2012, the Department implemented a cost recovery improvement project that is currently being used by all legal services sectors, including LSB. The impact of this project will be assessed in future evaluations.

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