Public Law Sector Evaluation
The Public Law Sector (PLS) is a core resource within Justice Canada that offers specialized legal services and policy expertise on public law issues, as needed, to Justice counsel and other government departments and agencies. The Sector’s goals are to provide high-quality legal services, and to contribute to a consistent, whole-of-government approach to public law issues. The PLS is comprised of seven specialized legal advisory/policy and policy sections. The sections are: Constitutional, Administrative and International Law Section (CAILS); Human Rights Law Section (HRLS); Information Law and Privacy Section (ILAPS); Judicial Affairs, Courts and Tribunal Policy Section (JACTP); Trade Law Bureau (JLT); International Private Law Section (IPLS); and Official Languages Law Section (OLLS).
The evaluation of the PLS was conducted between December 2011 and January 2013. This is the first evaluation of the PLS, as well as one of the first evaluations of legal services under the 2009 Treasury Board Secretariat’s Policy on Evaluation. In accordance with this policy, the evaluation addresses the core issues of the relevance and performance of the PLS. The evaluation covers the work of the PLS between fiscal years 2007–08 and 2011–12.
The evaluation methodology consisted of a document and data review; key informant interviews with Justice counsel in Departmental Legal Services Units (DLSUs) and other areas of Justice who have worked with the PLS, PLS counsel, and representatives of client departments and agencies; a review of 29 closed files on which the PLS provided legal services; ten case studies from among the 29 files reviewed, which included interviews with representatives of client departments and agencies, as well as PLS staff involved in the files; and four focus groups (two groups with PLS counsel and two groups with DLSU lawyers or regional litigators). Triangulation was used to verify and validate the findings obtained through these methods and to arrive at the overall evaluation findings.
Government priorities identified through Throne Speeches and Budget reports identify a number of priority areas and issues related to public law. These include policy initiatives in areas of human rights, justice system enhancement, anti-di scrimination, solicitor-client privilege, national security, governance, and official languages. Clients of PLS legal services also indicated a continued need for its public law expertise, particularly for riskier, high complexity files that involve public law issues. While the PLS experienced a slight decrease in demand for its legal services between 2007–08 and 2011–12, demand was affected, in part, by cost recovery for legal services obtained from CAILS, HRLS, and ILAPS, and efforts by other Justice counsel to reduce legal costs for clients. As cost recovery will no longer be used for any PLS legal services starting in 2013–14, it is anticipated that the demand for its services will increase.
Alignment with federal government priorities
The PLS provides support for the federal government’s legislative and policy agendas, which inevitably involve public law issues. Over the past five years, there has been good alignment between governmental priorities and commitments outlined in federal Budget reports, Speeches from the Throne, PLS operational plans, and commitments established in Department of Justice Reports on Plans and Priorities. PLS sections have been involved in supporting government priorities as varied as national security policy initiatives, criminal law proposals, the implementation of Canada’s Economic Action Plan, trade and investments agreements, and the Roadmap for Canada’s Linguistic Duality.
Alignment with federal roles and responsibilities
The PLS assists the Minister of Justice and Attorney General in fulfilling his responsibilities under the Department of Justice Act. Alignment of the PLS legal services with the Department of Justice Act is achieved through its work in advising client departments and agencies on matters of public law and by representing the Crown in litigation involving public law issues (domestically and internationally).
Based on multiple lines of evidence, the evaluation found that PLS clients (primarily DLSU and regional counsel) consider the legal services received from the PLS to be timely, coherent and useful, despite the often challenging practice environment with many urgent requests for advice. Satisfaction with timeliness was consistent across the PLS with the exception of JLT, which has a heavier workload in terms of hours spent on actively managed files than any other PLS section. Interviewees noted that they had experienced delays in receiving responses to requests from JLT. Therefore, any efforts to improve timely service could focus on JLT and its possible resource constraints.
The evaluation also found a few areas of potential improvement with respect to the coherence or usefulness of advice. The changing practice environment of the PLS, where its legal advice is shared directly with the client departments/agencies and more widely within the federal government, has meant that the audience for its legal opinions is broader. In addition, some DLSU counsel perceived the advice of a few sections, namely CAILS and HRLS, as occasionally too technical or academic for the client departments or agencies without the advice being rewritten by DLSU counsel, which was considered an inefficient use of counsel time. The PLS has responded by developing best practices for legal opinions and individual sections have best practices and quality management frameworks that consider issues such as how to communicate legal advice to clients. Given these results, the PLS may want to consider other ways to respond to this change in its legal practice and how best to work with counsel requesting the advice so that the purpose and use of the advice, including its audience, are clearly defined.
Multiple lines of evidence confirm that the PLS is providing consistent legal advice. Consultations within the PLS, with other Justice counsel, and with other affected departments and agencies are occurring when appropriate. PLS and other Justice counsel reported that when there are disagreements, which were considered to be rare, they could resolve them informally through consultations/meetings between PLS counsel and DLSU or regional counsel. A few areas of potential improvement were noted. While joint opinions from PLS sections are not always appropriate when more than one PLS section is involved on a legal issue, some stakeholders noted that the PLS sections could produce joint opinions more often than they currently are. The evaluation also found that the National Legal Advisory Committee (NLAC), the one formal Justice structure for ensuring consistency for legal advice, was not often used. Many potential reasons were identified for its low usage, including the perceived lack of clarity as to the NLAC’s role and a general lack of awareness of the Committee. As a result, it may be appropriate to review the NLAC’s terms of reference and clarify its role in the Department.
The PLS is performing its duties to inform government litigators, decision makers, and senior government officials of legal risks, legal options, and policy options, when appropriate. Clients reported valuing the PLS contributions to Legal Risk Management. While the PLS has somewhat lesser involvement in informing stakeholders of policy options and litigation strategies, with DLSU and litigation counsel having the lead role, key informants were satisfied with the level and quality of PLS involvement. The briefing process was considered generally effective in informing senior government officials of public law issues and legal risks. Some concerns were expressed regarding the lengthy process for approval of briefing notes, which can create delays, and the nature of the briefing process, where the PLS responds to requests for briefing rather than also determining whether to brief senior officials. However, the PLS has developed other processes to brief senior officials when they have the lead on files.
The evaluation concluded that the PLS contributes to the development of consistent legal positions and a whole-of-government approach to legal issues advocated before courts and tribunals. Communicating the government’s position to domestic stakeholders was considered to be mainly the role of the client department/agency’s than that of the PLS. Moreover, the PLS must respect solicitor-client privilege and confidentiality laws, which again may limit the extent to which PLS counsel communicate with external domestic stakeholders.
The evaluation had limited evidence on the effectiveness of the PLS in advocating the government’s position internationally, although, based on the examples provided in documents and by stakeholders, the PLS is well respected internationally, and its work contributes to the effective communication of Canada’s legal positions before both international tribunals and other international fora.
The evaluation confirmed that the PLS is actively carrying out its role in providing training to Justice counsel. Combined, its sections have offered over 200 events to over 3,600 participants through the Department’s Professional Development Directorate (PDD). These numbers under-represent the training offered by the PLS as sections provide a significant amount of training outside of the PDD. The evaluation found several gaps or other issues with the information collected on PLS training. Given the importance of PLS training in promoting the Sector and in informing other counsel about public law issues, the PLS may want to conduct more systematic reviews of its training at the Sector and/or section-level to ensure that training is meeting needs.
In terms of training for PLS counsel, the evaluation results suggest that satisfaction with the training and skill development opportunities available to the PLS has decreased over the evaluation period. Potential reasons for this identified by PLS counsel included the need for training that is appropriate for subject matter experts, which was seen as limited by budgetary restrictions on travel and registration for training offered by third parties. As well, there has been the move to more basic training to meet mandatory Continuing Legal Education (CLE) requirements of provincial law societies.
All lines of evidence indicated that PLS counsel are considered public law experts. DLSU counsel noted that this expertise enables them to gain client approval for consulting with the PLS. Other Justice counsel generally recognized that the PLS held expertise beyond what the DLSU could offer on public law matters.
Efficiency and economy
The evaluation found that the PLS is operating efficiently and economically with a few issues identified for further attention. PLS was generally found to have sufficient resources (human, technological, materials/equipment, financial) to manage the demand for its services. The one section that appears to have a resource deficit is JLT, as counsel carry a workload that far exceeds other PLS sections and departmental standards for the number of hours’ work per counsel in a fiscal year. The PLS may want to focus efforts on determining whether JLT will have sufficient resources to meet projected demands, particularly given government priorities to negotiate more agreements on international trade and investment.
It remains to be seen what the implications of PLS no longer having to bill for cost recovery will be on the ability of the Sector to manage demand and maintain its responsiveness, quality, and efficiency in service delivery. Given that the evaluation indicated that cost recovery may have reduced demand for PLS services on lower profile (lower risk and complexity) files, it is anticipated that demand could increase. The PLS may want to consider a review of the effects of the new funding approach on demand levels, service delivery, and administrative efficiencies after the 2013–14 fiscal year. The results of this evaluation can serve as a baseline.
Generally, the PLS provides cost-efficient legal services. In fact, during the period covered by the evaluation, the PLS expenditures increased modestly by just over 3%. The Department instituted the Law Practice Model (LPM) as a method to achieve cost savings, but its applicability in the PLS was questioned by stakeholders. They consider the expert, complex nature of the PLS work to limit opportunities to assign low-risk, low-complexity work to junior counsel. Unfortunately, because legal risk and complexity on most (99%) PLS files are not entered into iCase, the evaluation could not verify this. Even if these data were available, the unit of analysis (a file) may not be appropriate, as the urgency of legal requests (and one file can contain multiple requests) is often what creates the need for senior counsel involvement. To assist with management of the Sector, demonstrate compliance with the spirit of the LPM and that the PLS is operating as efficiently as possible, the Sector may want to develop performance indicators related to work assignment (file, legal requests) that are appropriate to the PLS and can be tracked.
One area of potential improvement for increasing efficiency identified by the evaluation was the quality of requests for legal services, which still vary in clarity and completeness. Unclear or duplicative requests or misunderstood expectations of what the client needs can lead to unnecessary additional work. Training and improved communications between PLS and other Justice counsel should enhance the quality of legal requests. Justipedia is also considered a key tool for improving efficiencies for PLS counsel, as well as for other Justice counsel who can use Justipedia to determine if legal opinions have already been provided on particular questions of law.
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