Public Law Sector Evaluation

2. Profile of the Public Law Sector

Mandate, Roles, and Responsibilities

The PLS provides legal services in the areas of advisory services on policy and law, litigation services/litigation support, and support for legislative and regulatory drafting services. Its objective is to provide high-quality legal services by ensuring that legal advice is consistent, the rule of law is respected, and legal risks are mitigated and managed by departments and agencies. In the Sector’s legal advisory and legal policy advisor role, the Minister of Justice ensures that the client departments within the Government of Canada, including the Department of Justice, fulfill their respective mandates in accordance with the rule of law. The PLS has both a policy and advisory role in support of the Justice mandate. The work of the PLS related to litigation services and support assists the Attorney General of Canada in ensuring that litigation is conducted in a coherent and consistent manner. PLS also provides support in policy development in areas that relate to its areas of expertise.

The PLS has an important and distinct role to assist the Department of Justice in fulfilling its “central agency” role as coordinator of legal advice across government and Central Agencies. The Sector also supports all areas of the Department directly involved in the provision of legal services by providing legal advice, legal policy advice, and policy advice on an as-needed basis. In addition, counsel from PLS conduct litigation, which includes appearances before international tribunals, and provide litigation support on matters proceeding both domestically and internationally. PLS counsel also both conduct and provide support for the negotiation of a wide range of international instruments.

More specifically, the role of PLS counsel is to provide expert specialized legal advice, legal policy advice, and policy advice to other Justice counsel who consult them, so that they can, in turn, properly advise their client departments, taking into consideration the advice they have received from the Sector. PLS counsel also provide training to Justice colleagues in their specific areas of expertise to maintain the knowledge and professional capacity of Justice counsel. In this regard, PLS counsel are often referred to as the lawyers’ lawyers. Clients within the Department of Justice include the Minister, the Deputy Minister, all Department of Justice Portfolios and their corresponding Departmental Legal Services Units (DLSUs), the Policy Sector, the Litigation Branch, Legislative Services Branch, and the regional offices. Clients outside of the Department of Justice include federal government Central Agencies, the Privy Council Office, the Treasury Board of Canada Secretariat, the Public Prosecutions Service of Canada, and other departments and agencies.

As with all of the Department of Justice counsel, PLS counsel also have a role to play in Legal Risk Management (LRM). PLS counsel must know and apply LRM principles and methods appropriate to their particular positions and areas of responsibility. In an advisory capacity, PLS counsel contribute their assessment of the legal risks associated with the specific areas of law in which they are experts, so that these risks can be considered, along with other areas of legal risk, in making a global risk assessment and assisting clients to manage their own legal risk. If contingency plans are being prepared, PLS counsel can contribute to developing those strategies in the areas of their expertise.

Other specific responsibilities that fall within the mandate of each of the seven sections are described in Section 2.1.2, below.

2.1. Structure and Services

2.1.1. Governance

The PLS is headed by an Assistant Deputy Minister (ADM) who reports directly to the Deputy Minister. The Office of the ADM acts as the liaison between the various sections in the PLS, as well as the other portfolios within the Department and other federal institutions. The ADM’s office coordinates the provision of high-quality, specialized legal advice and legal policy advice to clients within the Department of Justice and across the federal government. The ADM has a role on numerous intra- and interdepartmental committees, including Chair of the National Legal Advisory Committee (NLAC). The NLAC serves as a senior advisory authority in the Department of Justice. Its mandate is: a) to promote and ensure consistency and quality in legal advice, including the consideration of an integrated “whole-of-government” approach; b) to manage legal risk in the advisory context; and c) to recommend departmental positions on conflicting or diverging legal perspectives. The NLAC is part of the overall governance structure of the Department in order to ensure that the Department of Justice speaks with “one voice”.

In addition to the Office of the ADM, the PLS is comprised of seven specialized legal advisory/policy and policy sections. The PLS is recognized for its expertise in human rights law, constitutional and administrative law, language rights, information law and privacy, judicial affairs, international trade law, public international law, and international private law.

The seven sections are headed by a Director or Director General (DG), who is responsible for the overall management of his/her section and is accountable for its work. Most of these sections also have an assistant or deputy to the Director/DG. For example, the Deputy Director General (DDG) of the Human Rights Law Section (HRLS) assists the DG with the management of the section and is accountable for the quality of the legal work of those lawyers under the DDG’s responsibility.

2.1.2. Delivery Approach and Sections

The following information describes each of the seven sections that currently make up the PLS. It should be noted that a number of reorganizations of PLS have taken place over the evaluation period. Footnote 1 Prior to 2010, the PLS included the Public Law Policy Section (PLPS), which conducted legal policy work related to access to information law and human rights. As of July 1, 2010, expertise related to the Access to Information Act and the Privacy Act was consolidated under the Information Law and Privacy Section (ILAPS). As of April 1, 2011, expertise related to the Canadian Human Rights Act (CHRA) was consolidated under HRLS. Similarly, in May 2011, the Public International Law Section (PILS) was integrated into the Constitutional, Administrative, and International Law Section (CAILS).

Constitutional, Administrative, and International Law Section (CAILS)

CAILS provides specialized legal and policy advice, legal training and litigation support on the law relating to federal government institutions. In particular, CAILS has a team of lawyers and support staff to provide a variety of services to clients, including both advisory and policy advice in relation to the following areas of law:

  • Constitutional Law
  • Administrative Law
  • Crown Law
  • Public International Law
  • Aboriginal Issues.

The Section’s main business priority is to provide specialized legal advice, litigation support, and policy advice to clients requesting services, particularly on government priorities, as well as to meet demand created by external pressures such as litigation and proceedings in Parliament. Helping their clients to manage their legal risks appropriately is another key business priority due to the sensitivity, urgency, and cross-governmental considerations associated with many of their files.

CAILS also provides legal advice on a wide range of public international law issues. It is responsible for providing effective and responsive legal advice, legal policy advice, legal training, and legal services to clients (including the Minister and the Department of Justice). Specifically, in relation to public international law, the Section prepares legal opinions, assists with policy advice, participates in international negotiations, and generally provides client support on issues of public international law. The Section provides litigation support to the government's civil, criminal, Aboriginal, tax, and immigration law lawyers, while also litigating international law issues and advising on the filing of amicus briefs before foreign courts in cases with cross-border dimensions.

CAILS engages in outreach activities, including legal training, to heighten awareness of the services provided by the Section among clients and colleagues throughout the Department of Justice. CAILS holds regular meetings of the International Law Practice Group, and has created a working group to deal with legal issues related to military operations. In addition, a paper on principles of extraterritoriality is being drafted as a guide for colleagues throughout the Department.

In responding to requests regarding the machinery of government and parliamentary law issues, CAILS strives for close cooperation and coordination with the Privy Council Office, while seeking to provide both legal and strategic advice focused on the whole-of-government. The Section leads the departmental solicitor-client privilege team, and has a permanent representative on the NLAC.

Human Rights Law Section (HRLS)

HRLS is a centre of expertise in the PLS in relation to human rights, encompassing both legal advisory and legal policy functions. HRLS provides specialized legal advice, legal training, and litigation support on matters relating to the Canadian Charter of Rights and Freedoms (Charter), the Canadian Bill of Rights, and the CHRA. Lawyers in HRLS prepare legal opinions on regulatory and legislative initiatives, as well as on a wide range of questions referred to them by Justice counsel, the officials in the Policy Sector of Justice, and the Privy Council Office. As part of its advisory role, HRLS advises the Minister of Justice in the exercise of his statutory responsibilities to examine government bills and proposed regulations for consistency with the Charter and the Canadian Bill of Rights.

The Section provides strategic policy advice, training and guidance on a broad range of human rights policy issues, including the CHRA, for which the Minister of Justice has responsibility. In providing litigation support to litigation counsel on matters within the Section’s areas of expertise, HRLS counsel may prepare legal opinions, assess legal risks, participate in contingency planning, provide input into litigation arguments and strategy, and furnish legal policy input and support (e.g., on CHRA matters).

HRLS is responsible for all legal aspects of domestic implementation of Canada’s international human rights obligations. This work embraces all of the Department of Justice’s functions: international litigation (e.g., international communications), legal advice (e.g., advising on domestic implications of treaty provisions, advising during negotiations), policy development (e.g., should Canada become a party to a treaty), and litigation support when international human rights treaties are pled in cases before Canadian courts. The Section also assists in drafting compulsory periodic reports to United Nations committees outlining how Canada complies with the respective treaty obligations.

Litigation responding to individual petitions before international treaty bodies represents a portion of the Section’s work. The work of HRLS on international human rights requires significant amounts of coordination within Justice and with the Department of Foreign Affairs and International Trade (DFAIT) and affected federal government departments or provinces.

Information Law and Privacy Section (ILAPS)

ILAPS is responsible for ensuring that the positions of the Department of Justice concerning the interpretation of the Access to Information Act (ATIA) and the Privacy Act (PA) are established in a coordinated and coherent manner that complies with the intent and the letter of this legislation. The Section’s primary purpose is to provide legal advice and legal policy advice on access to information and privacy matters to clients, which include the Department, its Minister and Deputy Minister, the DLSUs, regional offices, and Central Agencies. The Section also provides strategic policy advice on Access to Information and Privacy (ATIP) issues for which the Minister of Justice has responsibility. The Section provides litigation support to the government’s civil, criminal, Aboriginal, tax, and immigration law lawyers through the DLSUs. ILAPS also coordinates the Attorney General of Canada’s and the federal government’s position and assists the Civil Litigation Branch in developing arguments in litigation matters relating to the ATIA and PA.

ILAPS provides specialized legal advice, legal policy advice, legal training, and other services to clients (including the Minister and Department of Justice) that support the government in attaining results for Canadians, including in relation to:

  • responding to ATIP requests within the required timeframe;
  • developing information-sharing initiatives compliant with the ATIA and PA legislation; and
  • engaging in outreach activities, including legal training, to heighten awareness of the services provided by the Section and the role played by the Department of Justice in the functioning of the ATIP system.

In its policy development capacity, the Section is actively involved in developing government bills on ATIP issues, monitoring Private Members’ bills dealing with ATIP issues, and supporting the work of Parliamentary committees. ILAPS provides support to the Minister and other senior officials appearing before the Standing Committee on Access to Information, Privacy and Ethics.

Trade Law Bureau (JLT)

JLT provides litigation services, legal training, and legal advice to all government departments on all aspects of international trade law. It advises on, and actively participates in, the negotiation and subsequent implementation of international trade and investment agreements. The goal of the Bureau is to ensure that the federal government receives coherent, high-quality, and timely legal advice on international trade law matters. JLT is a joint unit with staff from both the Department of Justice and DFAIT.

More specifically, JLT provides legal advice to the Government of Canada regarding the consistency of existing or proposed measures (whether Canadian or foreign) with international obligations under the Agreement Establishing the World Trade Organization (WTO), the North American Free Trade Agreement (NAFTA), and other trade and investment agreements. Canada’s trade and investment obligations are governed by the international agreements to which it is a party, such as the World Health Organization, NAFTA, various bilateral trade agreements, and foreign investment protection agreements.

The Bureau is responsible for the conduct of litigation with respect to the enforcement or defence of Canada’s rights and obligations under the WTO, the NAFTA, and other trade agreements pursuant to the dispute settlement provisions of those agreements. In the pre-dispute phase, JLT assists government departments in preparing for consultations. Once a panel is established, JLT conducts the litigation, which includes drafting pleadings and submissions, consulting with client departments and stakeholders outside the Government of Canada (e.g., provincial governments and private sector interests) on the preparation of the case, and pleading the case before the panel or tribunal.

Finally, the Bureau advises Canada’s negotiators on the scope and coverage of prospective trade agreements, on the expansion of existing trade agreements, and on amendments to these existing trade agreements. JLT leads negotiations on dispute settlement mechanisms in these agreements and helps to coordinate their domestic implementation.

International Private Law Section (IPLS)

IPLS is a legal policy and legal advisory unit. The Section deals with the development of international private law in four broad areas: international commercial law, judicial cooperation and enforcement of judgments, family law and child protection, and protection of property. It also provides legal and legal policy advice to the federal government on private international law issues.

IPLS engages in four main categories of activities:

Negotiation of international private law instruments:
IPLS is involved in the negotiation of international instruments (such as treaties and model laws) under the auspices of international organizations like The Hague Conference of Private International Law, the United Nations Commission on International Trade Law, the International Institute for the Unification of Private Law, and the VIIth Inter-American Specialized Conference on Private International Law of the Organization of American States. Although DFAIT has overall responsibility for the conduct and management of international affairs for Canada, Justice/IPLS is responsible for negotiations in international private law in these multilateral fora. In representing Canada during negotiations of international instruments, a key objective of the Section’s work is to ensure that Canadian interests and approaches are considered and, to the extent possible, reflected in the final product.
Implementation of international private law instruments:
The Section works closely with provinces and territories to draft uniform legislation to implement international instruments and to promote their adoption by provinces and territories.
Application and operation of international private law instruments:
IPLS works closely with its federal/provincial/territorial and international counterparts, including international organizations, to improve the application and operation of private international law instruments in Canada and in other countries. IPLS actively participates in meetings with that objective.
Legal and legal policy advice:
The Section provides legal advice and legal policy advice to the federal government on private international law issues.

Given that most international private law issues are within provincial/territorial jurisdiction, IPLS consults with the provinces and territories during the negotiation of international private law instruments and on their implementation. In addition, it consults with other interested federal departments, the private sector (including the legal and business community), the academic legal community, the Uniform Law Conference of Canada, the Civil Justice Committee, and the Advisory Group on Private International Law. Footnote 2

Official Languages Law Section (OLLS)

OLLS provides the Government of Canada with a full range of legal services in respect of language rights. The Section ensures that the positions and opinions of the Department of Justice on language rights are coordinated, consistent, and respectful of the purposes and letter of the applicable constitutional and legislative provisions. The Section’s mission consists of four key functions:

Legal Advisory Role:
OLLS informs and advises the Minister and other federal institutions on the interpretation of language rights through the provision and coordination of legal opinions, in cooperation with other sections in the Department and counsel from DLSUs. The Section’s legal advice may be applied in various contexts, which include the investigation process of the Commissioner of Official Languages, when drafting Treasury Board submissions and Memoranda to Cabinet, as well as during strategic planning and development of policies and programs.
Litigation Support Role:
The Section develops and coordinates the Attorney General of Canada’s and the federal government’s position in language litigation, and provides support to litigators. As such, OLLS is often called upon to work in close collaboration with litigators in formulating arguments, drafting written pleadings, and preparing oral submissions. OLLS provides strategic advice and opinions on specific issues raised in court proceedings. In cases of greater significance, the Section will oversee the coordination of these matters with the Privy Council Office, key departments (for example, Treasury Board Secretariat, Canadian Heritage, the Public Service Commission), and the client department.
Policy Development Function:
In cooperation with responsible departments, OLLS provides and coordinates policy opinions relating to official languages, including all proposed legislative amendments on language rights; develops policies and legislative reform proposals related to language rights; and provides strategic advice in the context of Private Members’ Bills.
Legal Training:
The Section offers training to Justice colleagues and client departments across Canada to increase awareness of language rights, including the rights specified in the Charter, the Official Languages Act and the Criminal Code of Canada. OLLS participates in the Department’s Professional Development programs. It develops work tools such as case briefs, annotated statutes, language rights litigation summaries, and checklists relating to the language provisions of the Charter, directed at departmental or governmental employees, as well as to the public.

The OLLS also plays a role under the federal government’s Action Plan for Official Languages and, particularly, its Accountability and Coordination Framework (this Framework is part of the Roadmap for Canada’s Linguistic Duality 2008–2013 and is intended to strengthen the Official Languages Program’s horizontal coordination) Footnote 3. As part of this role, the OLLS of the Department of Justice examines issues that may affect the government’s constitutional and legal obligations with respect to official languages, monitors potentially litigious files, ensures that government policies, programs, initiatives, and documents comply with the Official Languages Act and the Constitution, and reviews government documents for risk management and legal implications.

Judicial Affairs, Courts and Tribunal Policy Section (JACTPS)

JACTPS provides specialized legal and strategic policy advice on issues related to the provincial and federal superior courts and the judiciary to the Minister and Deputy Minister of Justice, to Central Agencies, and to other federal departments. On request, it provides legal policy advice to the Commissioner for Federal Judicial Affairs on the administration of Part I of the Judges Act. JACTPS plays a liaison role, supporting the Minister in maintaining appropriate contacts and relationships with the Canadian judiciary, courts and judicial organizations

In carrying out these duties, JACTPS advises on many issues, including the application of the Judges Act, judicial independence, judicial compensation and benefits, the judicial appointments process, and the structure and jurisdiction of superior and other courts in Canada (superior provincial/territorial courts, Aboriginal courts, single-level trial courts, Unified Family Courts, Supreme Court of Canada, and federal courts), as well as issues of judicial resources and the optimal size of the judicial complement for a court. The Section provides policy advice regarding the structure and independence issues relating to administrative tribunals. The primary role of Judicial Affairs is to support the Minister of Justice in his efforts to ensure that Canada has an accessible, efficient, and fair system of justice that upholds the constitutional principle of judicial independence. This principle underlies all the work done by the JACTPS.

2.2. Resources

Table 1 and Table 2 outline the actual expenditures and human resources between 2007–08 and 2011–12 respectively. The Sector’s expenditures remained relatively stable between 2008–09 and 2010–11, but decreased by over $1 million between 2010–11 and 2011–12, largely due to a decrease in salary expenditures. Overall, between 2007–08 and 2011–12, the PLS expenditures rose by just over 3%.

In 2011–12, the PLS had approximately 132 full-time equivalents (FTEs), with roughly 71% of them being classified as lawyers (LA). While the number of administrative FTEs has slightly increased during the evaluation period, the number of LA- and EC- (paralegals, iCase coordinators, students) classified employees has decreased (see Table 2).

Table 1: PLS expenditures by year, 2007–12 ($ millions)
  2007–08 2008–09 2009–10 2010–11 2011–12
Salaries 13.2 14.8 15.0 14.9 14.0
O&M 1.6 1.5 1.3 1.5 1.3
Total expenditures 14.8 16.3 16.3 16.4 15.3
Table 2: PLS human resources by year, 2007–12
  2007–08 2008–09 2009–10 2010–11 2011–12
Admin 30.5 34.1 33.3 33.2 33.9
ECs (paralegals, iCase coordinators, students) 4.3 4.9 4.4 4.6 3.9
LAs (counsel) 98.9 103.3 98.0 97.5 94.2
Totals 133.6 142.4 135.7 135.2 132.1

Source: PLS Business Administration Centre

Note: Column totals may not be sum of sub-parts due to rounding.

The budget for the PLS is composed of Justice A-Base dollars, A-Base and Net-Voting Authority (NVA) revenue allocations from Portfolios, Public Safety and Anti-terrorism funding, as well as several small amounts from various initiatives. From 2007–08 to 2011–12, the sources of funding remained fairly constant, with about three quarters coming from Justice A-Base, one tenth from Portfolio A-Base, and the remainder from NVA.

Monies obtained through NVA are allocated according to a cost recovery formula that is based on hours and legal rates. Not all PLS sections conduct cost recovery; CAILS, HRLS, and ILAPS use cost recovery for some of their work, while JLT, OLLS, JACTPS, and IPLS do not. As Table 3 shows, the amount of funding that the Sector obtains through cost recovery has increased modestly between 2008–09 and 2011–12, from approximately $3.3 million to over $3.5 million, with a peak to over $3.7 million in 2010-11.

Table 3: Adjustment from Portfolios after recoveries (costs recovered) Table note
  2008–09 Actual ($) 2009–10 Actual ($) 2010–11 Actual ($) 2011–12 Actual ($)
Legal services 3,343,982 3,701,891 3,727,384 3,569,592
Disbursements (over $200) 0 0 0 0
Total collected for legal services 3,343,982 3,701,891 3,727,384 3,569,592
Table note 1

Amounts in this table reflect the part of the Portfolio’s A-Base that is paid through cost recovery to the PLS, the hourly rate charge through cost recovery, and any discount in the Memorandum of Understanding that the Portfolio has with particular clients.

Return to table note referrer

Source: PLS Business Administration Centre

Effective fiscal year 2013–14, the PLS will no longer be subject to cost recovery. Instead, its costs will be incorporated into the legal rate applied to other Justice counsel (e.g., DLSUs, regional offices) that is charged to client departments and agencies. The evaluation learned about this change in cost recovery policy at the conclusion of the data gathering, analysis, and reporting phase. Therefore, while the evaluation findings incorporate information based on the financing model in existence during the evaluation period (2007–08 to 2011–12), the potential impacts of the new financing approach will be noted, as appropriate.

2.3. PLS Program Logic

A logic model is a systematic and visual way to illustrate the relationship between the planned activities of a program, in this case legal services, and their expected results. In other words, a logic model is a depiction of how a program or service is intended to work and what it is trying to achieve. A basic logic model has the following key elements:

Activities:
The processes, tools, events, and actions that are part of the implementation of the program or service. The activities should lead to the intended results.
Outputs:
The direct product of the identified activities.
Outcomes:
The impacts of the program/service. These are results/changes/benefits/ consequences. They are usually presented in stages, as change is incremental over time: immediate outcomes should support and lead to the intermediate outcomes, and intermediate outcomes to long-term ones.

This section provides a logic model for the PLS, including a visual diagram and text descriptions of the key elements. The descriptions in this section represent the theory behind the PLS. As such, they provide an account of expected results of PLS activities. The evaluation findings in Section 4 explore whether PLS activities are being implemented as planned and whether expected outcomes are, in fact, being achieved.

Figure 1: Logic model diagram for the PLS

Figure 1: Logic model diagram for the PLS

Figure 1 - Text equivalent

The Activities are:

  • Provide policy advice
  • Provide legal and legal policy advice
  • Provide/support litigation services
  • Negotiate/implement international instruments
  • Develop and provide Continuing Legal Education (CLE)
  • Support the Cabinet/parliamentary process

The outputs for providing legal policy advice are:

  • Environmental scan
  • Input to risk level
  • Stakeholder consultation/liaison
  • Gap and trend analysis
  • Recommendations
  • Policy changes, reports, papers
  • Research notes
  • Legislation

The outputs for providing legal and legal policy advice are:

  • Legal risks identified
  • Gap and trend analysis
  • Legal opinions
  • Legislative drafting support
  • Options to legal problems

The outputs for providing/supporting litigation services are:

  • Conduct of international litigation
  • Advice to litigators
  • Litigation coordination

Collectively, these three outputs contribute to the following immediate outcomes:

  • Departments/Agencies and Ministers have access to timely, consistent and coherent advice
  • Government litigators and decision-makers are aware of and informed of policy options, legal risks and legal options
  • Effective advocacy of Government of Canada’s position

The outputs for negotiation/implementation of international instruments are:

  • Negotiations/negotiation support
  • Implementation/ implementation support
  • Stakeholder consultations
  • Reports

The output on negotiation contributes to the following immediate outcomes:

  • International bodies and other governments are made aware of Canadian positions
  • Domestic stakeholders are aware of Canada’s international obligations

The outputs for developing and providing continuing legal education (CLE) are:

  • Tools (e.g. checklists, website)
  • Best practices and guidance materials
  • Websites
  • Presentations, workshops, seminars and conferences
  • Practice Groups
  • Stakeholder meetings

The output on providing CLE training contributes to the following immediate outcomes:

  • Justice counsel receive training and are kept current on public law legal principles and trends
  • Government officials are aware of the law and changes in the law and of their legal obligations
  • Confidence in PLS staff as experts

The outputs for supporting the Cabinet/parliamentary process are:

  • Briefing and QP notes
  • Position papers
  • Draft speeches
  • Cabinet documents
  • Orders in Council
  • Committee appearances

The output on supporting the Cabinet/parliamentary process contributes to the following immediate outcome:

  • Ministers have the necessary advice to make timely, informed decisions

Collectively, the immediate outcomes lead to the following intermediate outcomes:

  • Government of Canada has an appropriate policy and legal framework that reflects domestic and international obligations
  • Justice provides coherent ( and consistent) legal, legal policy and policy advice to the Government of Canada
  • Federal Government is able to manage and mitigate its legal risks based on an integrated whole of government approach

Collectively, the intermediate outcomes support the following ultimate outcomes:

  • PLS contributes to a fair, relevant and accessible justice system that reflects Canadian values; and
  • PLS contributes to a federal government that is supported by effective and responsive legal services.

2.3.1. Activities and Outputs

As illustrated in the logic model, the PLS undertakes six main activities. The first three activities relate to the provision of advice and/or support in four main areas: legal advice, legal policy advice, policy advice, and litigation.

Providing policy advice produces a broad spectrum of outputs: environmental scans, stakeholder consultations and liaison (including provincial/territorial and international stakeholders), gap and trend analysis, recommendations, policy changes, reports and papers, research notes, and legislation (or parts of legislation, as appropriate).

Legal advice and legal policy advice outputs may include gap and trend analysis, as well as the identification of legal risks, and alternatives for managing and mitigating those risks. The products or services produced as part of providing legal advice also include legal opinions, options to legal problems, and support during drafting of legislation.

In the context of litigation, PLS activities span a broader context than the provision of advice to litigators and coordinators. Some sections of the PLS are also involved in the conduct of international litigation, including HRLS, CAILS, and JLT.

Another area of international activity relates to the negotiation and implementation of international instruments. Outputs for this activity include:

  • leadership of certain areas of negotiation;
  • provision of a broad range of negotiation support;
  • implementation and related support;
  • stakeholder consultations; and
  • reports resulting from work in this context.

Implementation of international instruments can involve drafting periodic reports to international bodies and communicating with international bodies and stakeholder consultations, both inside and outside government.

Continuing Legal Education (CLE) is a key activity undertaken, at least to some degree, by all PLS sections. CLE encompasses all activities related to training, assistance, and tool development. Outputs include: tools, such as checklists and searchable information on sections’ websites; best practices and guidance materials; research results; and other information, such as presentations from workshops, seminars, conferences, practice groups, and other meetings.

The PLS also plays a key role in supporting Cabinet and the parliamentary process. It does this through the preparation of briefing and Question Period notes and position papers, the drafting of speeches, the provision of input into and the preparation of Cabinet documents, Orders in Council, and occasional appearances at Parliamentary Committees.

2.3.2. Immediate Outcomes

Outcomes are the intended impacts of the activities. Their achievement is beyond the direct control of the PLS. That is, once an activity and its outputs are produced, the PLS no longer has control/influence over the outcomes. For example, the PLS generally provides legal advice to Justice counsel, but once the advice has been given, the matter passes to clients who will factor in this advice with economic, political, financial, operational, or other considerations in making their decision. Therefore, the legal advice given by the PLS contributes toward the achievement of outcomes but may not directly cause an outcome. Furthermore, direct attribution to the PLS diminishes as the outcomes become longer-term. Again, while it is reasonable to expect that the PLS influences the achievement of the immediate outcomes, other factors (besides the activities of PLS) will influence the achievement of the outcomes.

Immediate Outcomes are those that occur in the short term.

Together, the first three activity areas — legal and legal policy advice, policy advice, and litigation services/support — contribute to the achievement of three immediate outcomes. The activity of litigation support is grouped with the advisory activities, since the support that is provided was considered as an advisory function.

The first immediate outcome is: “Departments/agencies and Ministers have access to timely, consistent, coherent advice”. The characteristics of the advice, that it is timely, consistent, and coherent, are important to note and ensure that the advice is useful. Consistency applies not only to advice provided by the PLS over time, but also to advice given across the federal government. Also, at the immediate outcome stage, it is reasonable to expect that the PLS provides access to specialized advice, but does not control whether or how the advice is used.

The second immediate outcome related to the advice and support activities is: “Government litigators and decision makers are aware and informed of policy options, legal risks, and legal options”. PLS provides advice and support in order to ensure that decision makers and litigators have the information they require in their work as the Sector is consulted on major litigation cases and in regard to significant policy and legislative initiatives.

The third immediate outcome related to these three activity areas is: “Effective advocacy of the Government of Canada’s position”. Litigation involving the Government of Canada occurs in both domestic and international courts and tribunals. The PLS fulfills a central agency function by providing functional guidance to ensure consistency of approach across the country regarding litigation by or against the Crown. It contributes to the development of the legal positions to be advocated before these courts and tribunals by taking a “whole-of-government” approach that considers the overall impact and legal risks to the Government of Canada’s overall interests.

Referring now to the fourth activity area of negotiating and/or implementing international instruments, the PLS works toward the achievement of two immediate outcomes. First, “International bodies and other governments are made aware of Canadian positions”. This outcome is achieved through the conduct and support of negotiations. As well, as part of contributing to the negotiating position, broad consultations with stakeholders are undertaken to establish the Canadian position and negotiations meetings are attended where the Canadian position is expressed. The second immediate outcome related to this activity is: “Domestic stakeholders are aware of Canada’s international obligations”. Thus, just as the PLS helps to negotiate and implement international instruments in an international context, it also helps to implement and communicate the implication of these instruments domestically.

Three immediate outcomes are expected regarding the fifth activity to develop and provide CLE. As Justice counsel are one of the key target audiences for the training and tools provided by the PLS, the first immediate outcome for this activity is: “Justice counsel receive training and are kept current on public law legal principles and trends”. Providing training on public law issues to other Justice counsel is expected to reduce pressure on the PLS to provide legal services on less complex public law matters. However, considering the constant evolution and development of the law, training by PLS counsel will always be needed. This outcome occurs as a direct result of the tools and training available on the Sector’s website and through stakeholder meetings.

The second immediate outcome related to the development and provision of CLE is: “Government officials are aware of the law and changes in the law and of their legal obligations”. This outcome occurs as it is expected that Justice counsel will inform government officials of the law, trends and the government’s legal obligations.

The third immediate outcome related to this activity is: “Confidence in PLS staff as experts”. By providing training to other Justice counsel on public law issues, PLS counsel will be considered experts in their area(s) of specialization and will be consulted when other Justice counsel and client departments and agencies encounter complex public law issues.

Lastly, one immediate outcome stems from the sixth and last activity area to support the Cabinet and/or parliamentary process: “Ministers have the necessary advice to make timely, informed decisions”.

Intermediate Outcomes logically occur after immediate outcomes. They are broader in scope and are less within the control of the PLS since other factors influence their achievement. Together, the immediate outcomes contribute to three intermediate outcomes.

The first intermediate outcome is: “The Government of Canada has an appropriate policy and legal framework that reflects domestic and international obligations”. It is expected that this outcome will result from access to the expert advice in public law that the PLS provides. PLS will inform Justice counsel, government officials, and Ministers of the legal risks, legal options, and domestic and international legal obligations that should be considered.

The second intermediate outcome is: “Justice provides coherent (and consistent) legal advice, legal policy advice and policy advice to Government of Canada”. That is, based on the Sector’s broad, government-wide knowledge and focus, the Department of Justice is in a position to provide advice that considers government-wide implications.

The third intermediate outcome is: a “Federal government is able to manage and mitigate its legal risks based on an integrated whole-of-government approach”. Again, it is expected that legal risks are mitigated when the immediate outcomes are achieved. As indicated in Figure 1, the arrow from the second outcome to the third also demonstrates that the advice Justice provides allows the government to manage its legal risks.

The ultimate outcomes to which the PLS contributes are also the strategic outcomes of the Department of Justice — namely: “PLS contributes to a fair, relevant and accessible justice system that reflects Canadian values” and “PLS contributes to a federal government that is supported by effective and responsive legal services”. Footnote 4

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