Public Law Sector Evaluation

4. Key Findings

This section combines information from all lines of evidence and presents the findings according to the broad evaluation issues of relevance and performance.

4.1. Relevance

The evaluation considered the relevance of the PLS legal services with respect to the continued need for its services given the increased demand and complexity of the legal services provided; the responsiveness of the PLS to government priorities; and the PLS support of Justice Canada’s statutory obligations and strategic outcomes.

4.1.1. Continued Need for PLS Legal Services

Evidence of ongoing need for public law expertise

The evaluation found evidence of an ongoing need for public law expertise within the Government of Canada and a continued role for the PLS in providing that expertise.

Government priorities continue to signal need for PLS involvement. 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-discrimination, solicitor-client privilege, national security, governance, and official languages (Speech from the Throne, 2010; 2011). Internal documents indicate that the work of PLS sections responds to these priority areas. Given that the work of the PLS is driven by requests from client departments and agencies and other Justice counsel, PLS services are, in a way, responsive to the work of government departments and agencies by default. The clients and counsel consulted for this evaluation confirm that the services provided by the PLS are necessary; most stakeholders agreed that the PLS provides an essential service to the Department of Justice and the federal government.

Evaluation results show that perceptions of the need for the PLS are linked to the expertise of PLS counsel. Most key informants representing DLSUs noted that the recognized expertise of the PLS in public law issues, beyond what the DLSUs can provide, aids in gaining client approval for consulting the PLS. Multiple lines of evidence confirm that PLS staff are viewed as public law experts, and that clients and Justice counsel are confident in PLS expertise. In the 2010 Client Feedback Survey, DLSU counsel and litigators who have worked directly with the PLS gave the Sector a composite rating of 8.8 out of 10 for expertise (surpassing the departmental target of 8.0 out of 10). Footnote 9 In addition, four independently-rated PLS sections (CAILS, HRLS, OLLS, and ILAPS) all received scores of 8.8 or higher for their expert level of knowledge (see Table 4). Most stakeholders (key informants, case study interviewees, and focus group participants) also agreed that PLS counsel are viewed as public law experts within the Government of Canada, and expressed satisfaction with PLS expertise.

Table 4: DLSU/litigator ratings regarding PLS expertise (scores out of 10)
Expertise indicator PLS overall CAILS HRLS OLLS ILAPS
Composite expertise 8.8 N/A N/A N/A N/A N/A
Expert level of knowledge N/A 8.8 9.1 9.1 9.1 9.3
Provided a strategic perspective N/A 8.0 8.6 8.3 8.5 8.6
Demonstrated sound legal judgment N/A 8.6 9.0 8.9 8.9 8.9

Source: Department of Justice 2010 Client Feedback Survey.

Note: N/A cells indicate information not available.

At the time of the survey, the reorganization that resulted in CALS and PILS being combined into CAILS had not yet occurred. To reflect the current structure, the results for both former sections are provided under CAILS.

According to documents and stakeholders, government priority issues are increasing in complexity and so, too, is the legal advice being sought. As stakeholders indicate that the PLS is consulted more commonly for riskier, higher-complexity files, it is not unreasonable to expect that the need for specialized public law services will rise in response to the rise in complex, high-risk issues faced by the government. According to many key informants, complexity of advice being sought from the PLS is increasing, particularly in the area of human rights. Key informants noted that human rights law involves various levels of government across Canada and requires consultation with other federal departments, such as DFAIT, Citizenship and Immigration Canada, and Public Safety. However, as risk and complexity levels were assigned in iCase for very few PLS files (less than one percent), this observation could not be objectively verified.

Demand for PLS services, and factors affecting demand

Evidence of ongoing need for PLS services comes despite an apparent decrease in the overall demand for PLS services. According to iCase data, the number of files actively managed by the PLS decreased by approximately 5% between 2007–08 and 2011–12 from 2,774 to 2,646 files (see Figure 2). Footnote 10 This decrease is seen in advisory and support for legislative drafting services, while there is a slight increase in litigation files. These results must be considered with caution. As discussed in Section 3.6, PLS counsel differ in their file-opening practices for advisory files, which may mean that the number of files underestimates the demand for PLS services.

Figure 2: Number of actively managed files by type of legal activity 2007-08 to 2011-12

Figure 2: Number of actively managed files by type of legal activity 2007-08 to 2011-12

Figure 2 - Text equivalent

Graph showing trends in ‘Actively managed files’ on the vertical axis from 0 to 3,500 files and ‘Fiscal Year’ along the horizontal axis from 2007-08 to 2011-12

Litigation files are shown graphically on the chart as follows:

  • For 2007-08 at just under 500 files
  • 2008-09 at 500 files
  • 2009-10 at just under 500 files
  • 2010-11 at just under 500 files
  • 2011-12 at 500 files

Legislative Support are shown graphically on the chart as follows:

  • For 2007-08 at 450 files
  • 2008-09 at 480 files
  • 2009-10 at 450 files
  • 2010-11 at 400 files
  • 2011-12 at 300 files

Advisory files are shown graphically on the chart as follows:

  • For 2007-08 at 1,900 files
  • 2008-09 at 2,000 files
  • 2009-10 just over 2,000 files
  • 2010-11 at 2,000 files
  • 2011-12 at 1,900 files

The Total files for PLS are shown graphically as follows:

  • For 2007-08 at 2,700 files
  • 2008-09 at 2,900 files
  • 2009-10 at 2,800 files
  • 2010-11 at 2,700 files
  • 2011-12 at 2,600 files

Source: iCase.

Given the limitations in relying on the number of files for assessing the demand for legal services, data on the hours spent by counsel are a better indicator of demand for legal services. When considering hours spent by counsel on actively managed files, the results show a slight decline starting in 2008–09 (see Figure 3). Over the entire time period, the number of hours of legal services provided by PLS declined by 6%.

Figure 3: Total number of hours for actively managed files by type of legal activity - 2007-08 to 2011-12

Figure 3: Total number of hours for actively managed files by type of legal activity - 2007-08 to 2011-12

Figure 3 - Text equivalent

Graph showing ‘Hours of legal services’ on the vertical axis, from 1 – 160,000 hours and ‘Fiscal Year’ on the horizontal axis, from 2007-08 until 2011-12

Litigation is shown graphically on the chart as follows:

  • For 2007-08 at 30,000 hours
  • 2008-09 at 40,000 hours
  • 2009-10 38,000 hours
  • 2010-11 at 30,000 hours
  • 2011-12 at 21,000 hours

Legislative Support is shown graphically on the chart as follows:

  • For 2007-08 at 25,000 hours
  • 2008-09 at 30,000 hours
  • 2009-10 at 30,000 hours
  • 2010-11 at 30,000 hours
  • 2011-12 at 22,000 hours

Advisory is shown graphically on the chart as follows:

  • For 2007-08 at 78,000 hours
  • 2008-09 at 62,000 hours
  • 2009-10 at 70,000 hours
  • 2010-11 at 75,000 hours
  • 2011-12 at 77,000 hours

The Total hours for PLS are shown graphically as follows:

  • For 2007-08 at 130,000 hours
  • 2008-09 at 138,000 hours
  • 2009-10 at 137,000 hours
  • 2010-11 at 136,000 hours
  • 2011-12 at 122,000 hours

Source: iCase.

Demand varied by section. For some, demand in terms of number hours spent on files remained fairly constant (HRLS, ILAPS, and JACTPS). CAILS showed a moderate increase in hours, while other sections, such as OLLS and IPLS, showed substantial increases. One section, JLT, experienced a substantial decrease in hours (see Table 5).

Table 5: Total hours for actively managed files by section — 2007–08 to 2011–12
Section 2007–08 2008–09 2009–10 2010–11 2011–12 % change 2007–08 to 2011–12
Files Hours Files Hours Files Hours Files Hours Files Hours Files Hours
CAILS 813 22,575 931 24,603 900 26,757 906 28,024 789 25,377 -3% 12%
HRLS 718 26,925 717 27,297 675 24,969 704 26,933 723 26,228 1% -3%
ILAPS 594 10,654 561 13,688 673 12,502 654 10,438 606 11,280 2% 6%
OLLS 142 6,328 173 7,460 148 7,768 135 9,315 130 8,628 -8% 36%
IPLS 74 4,986 98 6,833 80 6,231 74 7,766 91 8,606 23% 73%
SASTable note a 152 11,471 174 8,528 138 6,759 121 6,440 86 5,567 -43% -51%
JACTPS 36 8,775 38 8,646 39 7,232 39 8,507 38 8,803 6% 0%
JLT 245 38,061 207 38,933 196 41,607 167 33,939 183 28,123 -25% -26%
Total 2,774 129,775 2,899 135,989 2,849 133,826 2,800 131,362 2,646 122,613 -5% -6%

Source: iCase

Note: Columns may not sum to total due to rounding.

Table note a

The Special Advisory Section (SAS) was created to permit the input of timekeeping in iCase for the Law Aviation Secretariat and for counsel who are asked to provide advice and support on files of a special nature, or who work on special projects or files which are more specific to management related activities. The SAS also included the PLPS legal policy and managerial files that were kept open after the two PLPS reorganizations in 2010 and 2011, to accommodate ongoing post-reorganization work and iCase entries by the PLPS manager. The Law Aviation Secretariat has now been moved out of PLS, and the former PLPS files will eventually be concluded. As a result, this timekeeping category is phasing out, which explains the drop in hours by just over half.

Return to table note a referrer

While demand can sometimes be considered an indicator of need, evaluation results point to some other factors affecting the demand for PLS services — independent of (or despite) the need or desire for PLS services. Multiple lines of evidence indicate that cost recovery factors into decisions about requests for PLS services — affecting, to some extent, the overall number of requests, as well as the nature of requests for PLS services. As discussed in Section 2.2, not all PLS sections engage in cost recovery. Therefore, cost recovery will only affect the demand for legal services for CAILS, HRLS, and ILAPS.

Regarding the number of requests, the 2010 reports from the audit of Portfolios Footnote 11 revealed a decline in requests for PLS services due to cost recovery (Internal Audit Branch, 2010b). This is supported by evaluation stakeholders; many stakeholders engaged in the evaluation (mainly through key informant interviews and focus groups) identified cost recovery as an issue limiting the willingness of some clients to consult with the PLS or contributing to more hesitancy to consult. While most Client Feedback Survey respondents did not identify any obstacles to obtaining PLS services, of the 65 who did, the majority named cost recovery.

Evaluation stakeholders and the 2010 audit of Portfolio offices also identified some effects of cost recovery on the ways in which the PLS is engaged on files. According to these sources, for some client departments and agencies, cost recovery has resulted in:

  • an increase in requests for PLS counsel to comment on legal analysis done by DLSU counsel or litigators (in place of requests for the PLS to provide the initial analysis);
  • an increase in informal consultations, in effort to reduce costs; and
  • the engagement of the PLS at a later stage in the file (in contrast to best practices defined by the Department).

In addition, a few key informants and focus group participants mentioned that some DLSUs have begun developing their own in-house expertise (in response to cost recovery) to lessen their need to consult the PLS. While evaluation results do not suggest that this is a common practice, it is one worth highlighting, considering the importance of the expertise of PLS counsel and the role of the PLS in providing independent and impartial legal services and whole-of-government perspective. Footnote 12

It is important to note, however, that the cost recovery impacts identified by the evaluation pertain mainly to minor issues. According to most evaluation stakeholders, PLS counsel are consulted when they should be (i.e., when public law expertise is really needed), and stakeholders identified fewer barriers to consultation on major (complex, high-risk, high-profile) issues. The file review and case studies support these stakeholder perceptions, as they indicate that the PLS is involved at an early stage on high-profile, high complexity, and/or high-risk files. In the majority of files and cases, PLS counsel were engaged before the initial legal risk assessment was made, before the client made any decisions based on legal options and/or litigation strategies, or before other areas of Justice provided advice to the client on public law issues. Thus, while cost recovery may be a factor affecting the overall number of requests, it does not appear to be having a significant effect on the engagement of the PLS at appropriate times regarding significant public law issues.

As noted in Section 2.2, no PLS sections will be subject to cost recovery beginning in 2013–14. While the above discussion, therefore, may be less directly relevant, as it focuses on a situation that will soon be in the past, it does provide evidence that the decision to no longer require CAILS, HRLS, and ILAPS to engage in cost recovery is justified. It removes these potential barriers to accessing the specialized legal advice that these sections offer. These findings also allude to the potential challenge that these sections will face. Cost recovery will no longer cause other Justice counsel to take measures to manage their demand for CAILS, HRLS, and ILAPS legal services. The future challenge for these sections will be managing the potential increase in demand for their services in the coming years.

4.1.2. Alignment with Federal and Departmental Priorities, Objectives, Roles, and Responsibilities

Alignment with government priorities

As mentioned in Section 4.1.1, the work of the PLS supports federal government priorities in a variety of ways. Comparisons of Reports on Plans and Priorities and section Operational Plans with Speeches from the Throne and annual Budget reports show that PLS work shifts to maintain alignment with Government of Canada priorities. The following are examples of this:

  • HRLS work supports government priorities related to national security-related policy initiatives; proposed changes to the corrections system; criminal law proposals and legislation; immigration initiatives; census-related proposals and litigation; information-sharing between government departments, nationally and internationally; proposed changes to federal benefit regimes (such as E.I. and CPP); health-related policy developments; electoral reform proposals and legislation; and labour-law related issues.
  • CAILS is involved in supporting several current government priorities, including criminal law reform proposals related to threats posed by new technologies, organized crime and terrorism, and implementation of Canada’s Economic Action Plan, the National Anti-Drug Strategy, and the Supporting Families Initiative, to name a few.
  • The work of the IPLS supports government objectives related to the business environment in Canada. Priorities to encourage new investment through venture capital and foreign investment in key sectors, expand investment promotion in key markets, and remove barriers to growth encountered by small businesses are supported by the work of IPLS in negotiating, implementing, and applying international instruments. IPLS work in these areas helps to increase the predictability of the international legal system and decrease barriers to international business activities and financing.
  • The IPLS is also instrumental in supporting Canada’s role as an active member of the United Nations Commission on International Trade Law; the Hague Conference on Private International Law; the International Institute for the Unification of Private Law; and the Organization of American States’ Inter American Specialized Conference on Private Law. In doing so, the Department assists the federal government in carrying out the Crown’s prerogative regarding the negotiation, signing, and ratification of international agreements (Department of Justice, 2010b).
  • JACTPS supports the government’s commitment to an effective criminal justice system by supporting the Minister of Justice in ensuring that the superior court judiciary is efficient, effective, and independent. Policy work undertaken by JACTPS has also supported government priorities, including amendments to the Immigration and Refugee Protection Act, and appointments to the Specific Claims Tribunal of Canada.
  • ILAPS supports the federal government’s Federal Accountability Act initiative by providing support in reforming access to information (and, in the process, contributing to the government’s priority — Priority B — of improving government accountability) (Department of Justice, 2007c).
  • JLT advises negotiators on future trade agreements and on amendments to existing trade agreements, as well as handling disputes under the WTO and NAFTA. In the most recent Speech from the Throne, the federal government reiterated its commitment to free trade, noting that the government signed free trade agreements with eight countries since 2006 and negotiations with 50 more were underway (Government of Canada, 2011).
  • OLLS advice provided helps to ensure compliance with language-rights related obligations under the Constitution, including the Charter, the Official Languages Act, the Criminal Code, and other relevant federal legislation. The OLLS can also be called upon to provide advice on provincial and territorial language legislation.

Key informants generally agreed that PLS services support the government. In particular, key informants noted the role that PLS counsel play in the LRM process (discussed in more detail in Section 4.2.3) and in limiting future Crown liability through contributions to risk management and the defence of Canada’s laws.

Supporting the Department of Justice

Under the Department of Justice Act, Justice Canada has a mandate to support the roles of the Minister of Justice and Attorney General of Canada. By providing legal advice and assisting various government departments and agencies in drafting legislation and developing new services and policies to support government priorities, the PLS helps to fulfill Justice Canada’s mandate to advise federal department heads on all matters of law connected to their departments (s. 5(b)). By representing the Crown in litigation involving public law issues (domestically and internationally), the PLS fulfills the responsibilities under the Department of Justice Act to “conduct all litigation for or against the Crown or any department” (s. 5(d)).

As the work of PLS sections is varied, the PLS supports the Minister of Justice’s legislated/statutory obligations in a number of different areas. The following are given as examples:

  • ILAPS supports the Minister’s obligations under the ATIA and the PA, ensuring that the positions of the Department of Justice concerning the interpretation of these Acts are coordinated, coherent, and compliant with the intent of the legislation.
  • JACTPS provides legal advice to support application of the Judges Act.
  • Advice provided by the OLLS helps to ensure compliance with language rights-related obligations under the Constitution, the Charter, the Criminal Code, and other relevant legislation at the federal, provincial, and territorial level.
  • Similarly, HRLS helps to ensure compliance with the full range of rights under the Charter, the CHRA, and the Canadian Bill of Rights.
  • CAILS supports the Minister’s obligations under the Constitution Acts, 1867 to 1982.

In doing so, the PLS also assists the Minister in ensuring “that the administration of public affairs is in accordance with the law” (thus fulfilling requirements outlined in Section 4 of the Department of Justice Act).

Evaluation results also indicate that the PLS supports the Department of Justice in meeting its strategic outcomes. Regarding the Department’s first strategic outcome (a fair, relevant, and accessible justice system that reflects Canadian values), it can be argued that the independent status of the PLS (i.e., its autonomy from other government departments and agencies) helps to ensure a broader, whole-of-government approach to public law issues (see Section 4.2.2). More specifically, PLS activities (in assessing the impact of human rights instruments on domestic legislation policy, negotiating international human rights instruments and international private law instruments, identifying Canada’s rights and obligations related to international trade and investment law, etc.) support this outcome of a fair, relevant, and accessible justice system (Department of Justice, 2008b).

Evaluation stakeholders generally agreed that PLS services support the Department of Justice’s second strategic outcome: a federal government that is supported by effective and responsive legal services. According to key informants, not only does the PLS provide high-quality legal services directly (see Section 4.2.1), but clients and other counsel consult the PLS so that they, in turn, can support the federal government with high-quality legal advice and services.

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