Public Law Sector Evaluation

4. Key Findings

4.2. Performance – Achievement of Expected Outcomes (Effectiveness)

According to the 2009 Treasury Board Policy on Evaluation, evaluating performance involves assessing effectiveness, as well as efficiency and economy. The subsections below discuss the effectiveness of the PLS — in other words, the extent to which the PLS is achieving its expected outcomes.

4.2.1. Timely and Coherent Legal Services

The evaluation found a high level of satisfaction with PLS services. As mentioned in Section 4.1.1, the Sector counsel are perceived to be experts by clients and Justice counsel who have worked with the PLS. The Sector received a score of 8.8 out of 10 for overall satisfaction with legal advisory services from DLSU counsel and litigators who participated in the 2010 Client Feedback Survey (see Table 6). In describing their satisfaction with PLS services, evaluation stakeholders noted that:

  • PLS expertise and perspectives are valued;
  • PLS counsel are skilled professionals; and
  • PLS counsel are responsive to clients’ needs.
Table 6: DLSU/litigator ratings regarding the quality of PLS services (scores out of 10)
Quality indicator PLS overall CAILS HRLS OLLS ILAPS
CALS PILS
Overall satisfaction 8.8 8.7 8.9 8.8 8.8 8.8

Source: Department of Justice 2010 Client Feedback Survey.

Note: 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.

Like all legal services within the Department of Justice, the work of the PLS is guided by departmental service standards. These service standards demonstrate the Department’s commitment to delivering high-quality (i.e., timely, responsive, and useful) services to government departments and agencies. In the 2005 Public Service Employee Survey, most PLS respondents agreed that the service standards are clearly defined and regularly applied by counsel (Statistics Canada, 2005). Footnote 13 While more recent Public Service Employee Surveys (i.e., those conducted in 2008 and 2011) did not ask specifically about service standards, other lines of evidence indicate that, for the most part, the PLS provides high-quality, timely, and useful services.

Quality of PLS services

In addition to expressing general satisfaction with PLS services, most stakeholders (key informants, case study interviewees, and focus group participants) — particularly those representing DLSU counsel, litigators, and clients who have worked with the PLS — agreed that the work of PLS counsel is of high quality. Stakeholders pointed to the good relationships that PLS counsel build with those requesting advice and the good understanding that PLS counsel have of the issues as factors contributing to the quality of PLS services. The 2008 report from the audit of the PLS also revealed satisfaction with the quality of PLS services.

Other lines of evidence reveal the use of and/or participation in quality management or quality control processes by the PLS. These structures, tools, and processes are intended to foster high-quality legal services. Several PLS sections lead departmental Practice Groups, which are informal, voluntary communities of Justice counsel who are interested in a particular legal speciality. They serve as information-sharing fora that build on existing knowledge and, thereby, improve the quality of legal services. The Practice Groups headed by PLS sections are: Administrative Law, Constitutional Law, and International Law (CAILS); the CHRA (HRLS); language rights (OLLS) and ATIP (ILAPS). PLS sections also have internal practice groups, which either meet regularly or ad hoc as needed. In addition, the PLS has various tools and processes to ensure the quality of its legal services. The Sector instituted a working group that developed a best practices document on drafting legal opinions. Some examples of tools available in different sections include checklists, best practices documents, quality management frameworks, and orientation binders. These tools provide, for example, advice on communications with the client, the format for legal advice, and roles and responsibilities for quality assurance (including supervisor or peer review and mentoring). In fact, most files included in the file review provided evidence of both supervisor and peer review of written materials. For less experienced counsel, there are other quality assurance mechanisms. The Department has a mentoring program for junior counsel, and some PLS sections also have their own mentoring programs. Taken together, these tools and processes demonstrate the PLS have mechanisms in place to provide high-quality legal services.

Timeliness of PLS services

Evaluation results show that the PLS is typically able to respond to requests in a timely manner and to meet (even tight) deadlines. In the 2010 Client Feedback Survey, the PLS received a composite score of 8.9 out of 10 for timeliness of services, and specific PLS sections (CAILS, HRLS, OLLS, and ILAPS) all received scores well above the departmental target of 8.0 for all timeliness-related indicators (i.e., factors related to the acknowledgement of requests and handling of deadlines — see Table 7).

Table 7: DLSU/litigator ratings regarding the timeliness of PLS services (scores out of 10)
Timeliness indicator PLS overall CAILS HRLS OLLS ILAPS
CALS PILS
Overall timeliness 8.9 N/A N/A N/A N/A N/A
Acknowledged requests in a timely manner N/A 8.7 9.1 8.8 8.9 9.0
Negotiated mutually agreed-upon deadlines N/A 8.6 9.0 8.7 8.9 9.0
Apprised if deadline(s) needed to be extended N/A 8.7 8.9 8.7 8.8 9.0
Met mutually agreed-upon deadline(s) N/A 8.8 9.0 8.8 8.9 9.0

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.

File review and case studies provide support for the Sector’s ability to provide timely services; in all files reviewed for the evaluation, the PLS missed only one client-imposed deadline due to other urgent matters and more time needed for peer review, and the two litigation files reviewed did not contain any record of missed court deadlines. This is despite the fact that the PLS received urgent requests on most files –– the majority of which required responses in three days or less. Key informants and case study interviewees provided further confirmation that regular communication between PLS and DLSU counsel promotes timeliness; when PLS sections are regularly kept up-to-date on the status of files, less time is needed for PLS counsel to “catch up” on files when requests are made. Key informants also identified that, when fast turnaround is needed, PLS counsel are typically able and willing to provide preliminary advice to serve in the interim until full advice can be developed.

Despite general satisfaction with the timeliness of PLS services, evaluation results indicate some section-specific timeliness issues. JLT, in particular, appears to have greater difficulty in providing timely services than other PLS sections. Key informants and case study participants mentioned that it can take a long time to receive opinions from JLT. Stakeholders consulted for the evaluation attributed delays in receiving JLT opinions mostly to the Bureau’s heavy workload. Administrative data lend support for this conclusion, as JLT legal staff (counsel and paralegals) carry the heaviest workload of all the PLS sections, which at 2,163 hours for 2011-12, also far exceeds the Justice standard of 1,300 hours. The issue of the JLT workload is discussed further in Section 4.3.2.

Coherence and usefulness of PLS services

Overall, the evaluation indicates that PLS services are coherent and useful to those requesting them. The vast majority (approximately 93%) of 2010 Client Feedback Survey respondents rated the coherence of the legal advice provided by the PLS as either “good” (32%) or “very good” (61%), and the PLS received a high composite rating of 8.7 out of 10 for overall utility and for the depth of form of its legal services (see Table 8, next page). Evaluation stakeholders provided further support for this perspective, as key informants, focus group participants, and case study interviewees generally agreed that PLS services are relevant, coherent and useful.

Evaluation results, however, indicate some potential issues regarding the practicality of PLS legal advice. Key informants and case study participants identified that, at times, PLS advice is not provided in the “best” format for the client. These stakeholders mentioned that the advice provided by CAILS and HRLS is sometimes too technical or “academic” for client departments and agencies to understand and use; at times, DLSU counsel must rewrite advice so that clients can consider it. As Table 8 shows, out of all utility indicators addressed by the 2010 Client Feedback Survey, CAILS and HRLS received their lowest scores on the degree to which they “provided practical guidance on resolving the legal issue,” with CAILS receiving a score just below the departmental target of 8.0 out of 10.

Other lines of evidence, however, indicate that this observation reflects a communication issue more so than a problem with the advice itself. Focus group participants representing Justice counsel outside of the PLS pointed out the need for different types of advice to respond to different situations. In some cases (such as in the litigation work related to policy or involving the Supreme Court), an academic/technical/theory-based approach is necessary, whereas, in other situations, more practical advice that is directed to the client is needed. Focus group participants indicated that it is the responsibility of both PLS counsel and those requesting PLS services to ensure that client needs are clearly communicated and met. On the 2010 Client Feedback Survey, CAILS and HRLS received their second-lowest utility scores with regard to the degree to which these sections “sought [their] expectations regarding the depth and form of the legal advice to be delivered” –– indicating potential room for improvement in clarifying expectations prior to providing advice.

Table 8: DLSU/litigator ratings regarding the utility of PLS services (scores out of 10)
Utility indicator PLS overall CAILS HRLS OLLS ILAPS
CALS PILS
Overall timeliness 8.7 N/A N/A N/A N/A N/A
Overall depth and form 8.7 N/A N/A N/A N/A N/A
Fully understood the facts of the issue for which you received assistance N/A 8.7 8.9 8.9 8.8 8.9
Sought your expectations regarding the depth and form of the legal advice to be delivered N/A 8.3 8.8 8.6 8.6 8.8
Depth and form of legal advice delivered met your expectations N/A 8.5 9.0 8.8 8.6 8.9
Provided clear legal advice N/A 8.5 8.8 8.8 8.8 8.9
Provided practical guidance on resolving the legal issue N/A 7.9 8.6 8.3 8.4 8.7

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 some PLS interviewees, perceptions of the purpose of PLS advice have been changing. In the past, many counsel thought that PLS advice was intended to be used by DLSU counsel, with the expectation that DLSU counsel would adapt the advice to suit the clients’ needs. However, this practice has evolved; DLSUs are increasingly providing PLS advice directly to clients (perhaps in response to budget or time pressures). The potential for different expectations and resulting inefficiencies of DLSU counsel revising PLS opinions for their clients, point to the need for better communication between PLS and DLSU counsel about needs and expectations of legal advice being provided. This includes DLSU counsel informing the PLS of any relevant information about their client’s situation so that the legal advice drafted by the PLS is practical and useful to the client. In addition, stakeholders noted that now legal opinions are much more widely distributed across the government. PLS and the Department more generally have taken steps to respond to this change in practice by producing documents on how to communicate legal risk and on best practices in drafting legal opinions.

4.2.2. Consistency of PLS Advice

The evaluation considered three basic levels of consistency: 1) internal consistency –– in other words, the extent to which advice on public law issues is consistent within the PLS (or across PLS sections); 2) consistency across the Department of Justice (i.e., the degree to which the Department “speaks with one voice”); and 3) consistency across the federal government (i.e., the degree to which a “whole-of-government” perspective is achieved on legal issues). In general, the evaluation found evidence that the PLS contributes — through effective and appropriate consultations — to consistency at all three levels.

Internal consistency: consistent approach within the PLS

Evidence shows that, for the most part, PLS sections consult internally, and that these consultations are resulting in a consistent approach to public law issues across the PLS.

As mentioned in the methodology section of this report (Section 3.3), the case study files were chosen, in part, to allow for an exploration of consultations, collaborations or interactions occurring on files. Both the file review and case studies show that consultations among multiple PLS sections are occurring. In particular, the file review results show that PLS counsel consulted with other PLS sections at critical times on a majority of the files reviewed.

These consultations appear to be resulting in a consistent approach across the PLS; case study interviewees agreed that the PLS was able to maintain internal consistency on files involving multiple PLS sections. The results from the 2010 Client Feedback Survey also indicate internal consistency; 93% of respondents said that coherence across sections was either “good” or “very good” when more than one PLS section was involved in providing legal advisory services (see Table 9).

Table 9: DLSU/litigator ratings regarding the coherence of PLS advice across sections (n=142)
Coherence of legal advisory services for requests involving input of two or more PLS sections Very good Good Fair Poor Unable to assess
Satisfaction with the coherence of legal advice provided 61% 32% 4% 1% 2%

Source: Department of Justice 2010 Client Feedback Survey.

Although consultations within the PLS appear to be working well, stakeholders consulted for the evaluation indicated some potential for even greater coordination between sections. Key informants and focus group participants (in particular, those representing DLSU counsel and litigators who have worked with the PLS) mentioned that multiple PLS sections could produce joint opinions in more situations. At times, multiple PLS sections working on the same public law issue have produced opinions separately, although DLSU counsel said that a joint opinion would have been useful. However, it should be noted that, given the extent to which the work of the PLS varies among sections, joint opinions are not appropriate for all files requiring the input of multiple PLS sections.

According to stakeholders, a recent improvement that also contributes to the consistency of legal advice is Justipedia, the unified departmental database for legal precedents that was launched in early 2012. Stakeholders consider Justipedia to be a key tool for ensuring consistency by allowing PLS (and other Justice) counsel to access past opinions and information on the positions of PLS sections on certain matters.

Consistency within the Department of Justice: Justice “speaks with one voice”

The role of the PLS in ensuring the consistency of departmental advice was highlighted in multiple lines of evidence. Key informant and case study interviewees generally agreed that the PLS plays a coordinating role within the Department of Justice, contributing to the Department’s goal of “speaking with one voice.” Footnote 14 As PLS counsel provide legal advice to multiple departments and agencies on public law issues, they are in a position to help ensure that the legal advice related to public law that client departments and agencies receive (either directly or through advice provided to DLSU counsel) is consistent.

Just as consultations among PLS sections are leading to a consistent PLS approach, evidence indicates that consultations between the PLS and other Justice counsel are leading to a consistent departmental approach to public law issues. The file review provides evidence of regular and appropriate consultations between PLS and DLSU counsel; on the majority of files reviewed, PLS counsel consulted with DLSU counsel either regularly (i.e., at least on a weekly basis) or at critical times in the file. Case studies also show more frequent consultations on higher-risk or higher-complexity files, and more consultation at critical times in files.

These consultations appear to be effectively contributing to agreement. The evaluation found very little unresolved disagreement between PLS and DLSU counsel on public law issues involving the PLS. In fact, differences of opinion between the PLS and Justice counsel occurred in very few files and case studies reviewed for the evaluation. Evaluation stakeholders provided further support for the rare occurrence of disagreements between the PLS and lead counsel on files.

It is interesting to note that agreement on advisory files is typically reached without the use of formal structures available. As described in Section 2.1.1, the NLAC is to help ensure that the Department of Justice “speaks with one voice” on advisory files. Chaired by the ADM of the PLS, the committee is intended to provide a forum for senior Justice officials to discuss non-litigation legal issues on which there may be inconsistent positions. Footnote 15 While it was originally conceived as a decision-making body, this has changed and the NLAC now makes recommendations to the Deputy Minister. The idea behind the NLAC was that issues could be brought to the committee by Governing Council members (ADAG/ADM and Regional Directors General) when diverging opinions on cross-portfolio or cross-sectoral issues could not be resolved through regular processes. This committee, however, has rarely been used. The NLAC has been somewhat active in the area of solicitor-client privilege and other issues that have department-wide effect; however, relatively few cases have been brought to the NLAC since its establishment. In fact, while the initial expectation was for monthly meetings, the committee has met about 6–8 times only since its inception in April 2009.

Evaluation stakeholders identified some possible reasons for its lack of use:

  • Some stakeholders consulted for the evaluation said that there may be a concern among counsel that use of the committee is perceived negatively; therefore, taking issues to the NLAC is avoided, as this represents a failure in other attempts to resolve disputes.
  • Some stakeholders identified that the role of the NLAC has not been clearly defined, which has led to uncertainty about how or when it should be used. The change of the committee from a decision-making body to one that makes recommendations to the Deputy Minister, may explain this lack of clarity.
  • Many stakeholders were not aware of the committee, and most did not have firsthand experience with it. This lack of awareness may be partially explained by the protocol that to be placed on the NLAC agenda requires the approval of the ADAG/ADM or the Senior Regional Director with responsibility over the matter.

While all of these reasons may contribute to the lack of use of the NLAC, the level of usage may not be an issue for the Department. Unlike litigation, which is driven by deadlines and the need for timely resolution, advisory issues are generally less urgent. Therefore, while the National Litigation Committee is used much more than the NLAC, this may be appropriate. A few stakeholders pointed out that the committee was intended to address cross-cutting issues that affect most of the Department, so its use is not often needed. In addition, evaluation results also indicate that more informal dispute resolution processes are sufficient to address the majority of disagreements on public law issues among Justice counsel. Multiple lines of evidence (file review, case studies, key informant interviews, and focus groups) indicate that differences of opinion between the PLS and the lead counsel are resolved through informal discussions and meetings of counsel to arrive at a Justice position. Key informants and case study participants, in particular, described the respectful relationship between PLS and DLSU counsel, and noted that mutual recognition of expertise and perspectives helps to ensure that agreement can be reached.

Given its low usage, lack of clarity around when it should be used, and general lack of awareness of its existence, it may be appropriate for the Department to review the NLAC’s terms of reference and clarify its role.

Consistency across the government: a “whole-of-government” perspective

By working with multiple DLSU counsel and client departments and agencies, PLS counsel are well placed to take a national perspective on legal issues. Just as the 1962 Glassco Commission report emphasized the importance of impartiality in legal advice, stakeholders identified the impartiality of the PLS and its situation centrally within the Department of Justice as a significant factor contributing to the Sector’s ability to promote a national, whole-of-government perspective on public law issues. Key informants, in particular, expressed the opinion that the PLS is better positioned than DLSU counsel to provide the whole-of-government perspective because of their independence and their work with clients across the government.

Once again, evaluation results — primarily from the file review — indicate that the PLS engages in consultations with other government departments and agencies, when necessary, and that these consultations contribute to a whole-of-government approach to public law issues. PLS counsel consulted with other potentially affected government departments on most of the files reviewed for the evaluation. While key informant interviews and case studies revealed some tensions and disagreements between PLS and other government departments or agencies, these were generally addressed successfully through meetings and consultations.

The evaluation, however, did raise some questions about whose responsibility it is to identify when other departments or DLSUs will be affected by a public law issue, and to inform and engage them. The Department of Justice has identified a number of “best practices” with respect to providing legal advice. While these best practices emphasize the importance of sharing of information and consultation with Justice colleagues, the Department does not seem to provide explicit guidance on how to (or who should) involve other departments and agencies. Focus group participants generally agreed that it is the responsibility of both PLS and DLSU counsel to recognize when other sectors of government should be engaged. They identified that whether PLS or DLSU counsel would be better positioned to identify these situations depends on the file. However, it may be beneficial for the PLS to consider offering more guidance to counsel on this issue.

4.2.3. Informing Government Litigators, Decision Makers, and Senior Government Officials

According to the logic model designed for the PLS, the Sector has a role to play in informing government litigators, decision makers, and senior government officials of legal risks, legal options, and policy options. This section, therefore, discusses evidence of PLS contributions in each of these areas.

The role of the PLS in informing stakeholders of legal risks

LRM is “the process of making and carrying out decisions that reduce the frequency and severity of legal problems that prejudice the government’s ability to meet its objectives successfully” (Department of Justice, 2007b). As such, LRM involves a number of different stages and activities, including:

  • identification and assessment of potential legal risks;
  • communication of potential risks to stakeholders, as necessary;
  • mitigation of legal risks to the extent possible by addressing policy and legal issues (such as through changes to practices or policies, or by proposing amendments to legislation and/or regulations); and
  • managing legal risks that have materialized and reducing their potential costs (monetary and otherwise) (Department of Justice, 2007b).

The LRM process also involves reassessment of legal risks, as necessary, as issues develop over time.

The evaluation found that the PLS plays an important role in the LRM process — although this role varies, depending on the file. While evidence indicates that PLS counsel have been involved in all LRM stages (from identification and assessment, to communication, to the development of strategies or options to deal with risk), they may not be involved in all stages in every file.

Although the role is not the same on every file, the evaluation indicates that PLS counsel make some contributions to LRM in most files, and that these contributions are valued. PLS counsel contributed to discussions of legal risk in the majority of files reviewed for the evaluation. The file review provided evidence of PLS contributions to opinions on assigned risk levels and reports on high-impact litigation. Those who have worked with the PLS counsel value their contributions to LRM. Key informants and case study interviewees expressed high levels of satisfaction with the involvement of PLS counsel in matters associated with legal risk, and the PLS received high scores (surpassing the departmental target of 8.0 out of 10) for its performance related to legal risk in the 2010 Client Feedback Survey (see Table 10).

Table 10: DLSU/litigator ratings of PLS performance related to legal risk (scores out of 10)
Legal risk indicator PLS overall CAILS HRLS OLLS ILAPS
CALS PILS
Composite rating on performance related to legal risk 8.6 N/A N/A N/A N/A N/A
Conducted a thorough assessment of legal risk pertaining to the issue for which advice was received N/A 8.4 8.8 8.8 8.8 8.6
Recommended strategies to mitigate identified legal risks pertaining to the issue for which advice was received N/A 8.1 8.8 8.5 8.7 8.5

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.

The role of the PLS in informing stakeholders of legal or policy options

Evaluation results indicate that the PLS is somewhat less involved in the development of policy options and litigation strategies than in the development of legal options. The file review showed that PLS services included legal options and discussions of legal risk in the majority of files; however, services related to policy options and litigation strategies were provided on less than half of the files reviewed. Evaluation participants provided support for these findings, as both key informant and case study interviewees raised the perspective that the role of the PLS is more to advise on the legal risks associated with policy options than to directly advise about policy options. Furthermore, while some sections contribute to policy development more than others, it is typically a joint process between the PLS and DLSU counsel or litigators. PLS counsel do not take the lead on advising on policy development, as they are less familiar with the needs and capabilities of clients than DLSU counsel. Nevertheless, key informants expressed general satisfaction with the involvement of PLS counsel in the development of options and in contingency planning when these contributions have been made.

The role of the PLS in informing senior Justice officials

The file review and key informant interviews indicate that the PLS plays a role in informing senior officials of public law issues and associated legal risks. Almost all of the files reviewed for the evaluation were brought to the attention of senior Justice officials or structures, primarily through briefing notes and risk assessment documentation.

Key informants identified some limitations to the briefing process, including:

  • delays in the briefing process, compared to five years ago (due to the many levels of scrutiny, numerous revisions, and the lengthy process for approval that briefing notes must go through before they are submitted); and
  • the nature of the briefing process –– in which Justice responds to Minister/Deputy Minister briefing requests, rather than initiating briefing.

Nevertheless, many key informants agreed that the briefing process works well. The PLS has developed other processes to brief senior officials when they have the lead on files. For example, there are regular bilateral meetings between the ADM of PLS and the individual section directors, as well as bi-weekly directors’ meetings to brief the ADM, who in turn briefs up at the Deputy Minister Week Ahead meeting. In addition, the ADM of PLS distributes information on relevant files, recent court decisions, or pertinent public law issues to Executive Committee members and Portfolio Heads to keep them informed.

4.2.4. Advocacy of the Government of Canada’s Position

The PLS is expected to contribute to effective advocacy of the Government of Canada’s position both domestically and internationally. Domestically, the PLS should contribute to the development of consistent legal positions and a whole-of-government approach to legal issues advocated before courts and tribunals in litigation by or against the Crown. Internationally, the PLS is expected to assist in advocating Canada’s position in international negotiations, before international courts, and at meetings of international bodies. Stakeholder consultations assist in formulating Canada’s position.

Advocating the Government of Canada’s position domestically

Evaluation results indicate that PLS sections do, indeed, play a role in communicating the Government of Canada’s position domestically. As discussed in Section 4.2.2, the document review, interviews, and case studies provide evidence that PLS counsel are generally consulting with domestic stakeholders when appropriate. For example, the majority of the eleven files involving international issues that were reviewed provided written evidence of PLS efforts to make domestic stakeholders outside of the federal government aware of the Government of Canada’s rights and obligations under international instruments, and just over half showed evidence of PLS efforts to make other federal officials aware.

Moreover, the evaluation found that the PLS’ role in communicating to domestic stakeholders outside of the federal government varies and may be limited in some situations. Stakeholders involved in the evaluation identified that it is not always necessary or appropriate for the PLS to consult directly with stakeholders outside of the federal government; in some cases, broader stakeholder consultation is the client department’s responsibility rather than that of the PLS. The file review seems to provide further support for the observation that the PLS is not always involved in communicating with domestic stakeholders; it has contributed to the development of communications products for domestic use (e.g., briefing notes, Q&As/talking points, media lines) in under half of the files reviewed. Stakeholders also identified that, while striving for transparency, 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.

Advocating Canada’s position internationally

IPLS, JLT, HRLS and CAILS Footnote 16 are the main PLS sections that are involved in meetings of international bodies and in the work of international organizations. The document review, key informant interviews, file review, and case studies provide examples of the ways in which these sections are involved in communicating Canada’s position internationally; the work of these sections involves conducting litigation (arbitration), engaging in comprehensive stakeholder consultations, providing ongoing legal advice to policy clients responsible for negotiations, drafting written submissions, treaty body reporting, handling complaints against Canada before international mechanisms, and various other international human rights matters.

There was limited information regarding the role of the PLS in advocating Canada’s position internationally. Eleven files included in the file review involved international issues. The PLS was involved in the preparation of written communications products (for use internationally to communicate Government of Canada’s position) in less than half of these files, but the reasons for this are unclear. While information on the achievement of this expected outcome is limited and the findings are not clear, available information (primarily from case studies) suggests that the PLS is well respected internationally. In addition, consultations led by PLS counsel prior to conferences with domestic stakeholders (at the federal, provincial, and territorial level) have allowed the PLS to bring a whole-of-government approach to international meetings.

4.2.5. Training of Justice Counsel

Training provided to Justice counsel by the PLS

As the PLS logic model identifies, the PLS is expected to develop and provide training to Justice counsel on public law legal principles and trends. In doing so, the PLS will contribute to the professional development, or CLE, requirements of Justice counsel; furthermore, the training itself is expected to reduce pressures on the PLS to provide services to these counsel.

The evaluation confirms that the PLS is actively carrying out its role in providing training to Justice counsel. The number of training events offered by PLS counsel through the Professional Development Directorate (PDD) has increased over the evaluation period, from 24 events offered in 2007–08 to over 50 events in 2010–11 and 2011–12. The majority of these events were offered by CAILS and HRLS (see Table 11). These sessions cover a range of topics and subject areas (including access to information and privacy, constitutional and administrative law, human rights law and the Charter, international law, official languages, legal practice, legal skills, etc.), and take the form of seminars, workshops, and annual conferences. A total of 3,642 participants took part in these events over two fiscal years (2010-11 – 2011-12), indicating the level of demand for these sessions. Footnote 17

Table 11: Number of PDD training/professional development events offered by PLS counsel per fiscal year – 2007–08 to 2011–12Table note a
Fiscal year CALS/CAILSTable note b HRLS JLT PILS ILAPS OLLS Not specified Total
Alone w/CAILS
2007–08 9 5 3 1 6 0 0 0 24
2008–09 15 10 0 1 6 0 1 2 35
2009–10 20 14 2 2 1 0 5 0 44
2010–11 26 11 2 3 8 3 3 0 56
2011–12 27 16 0 0 3 2 2 2 52
Total 97 56 7 7 24 5 11 4 211

Source: PDD with data supplemented by sections, as needed.

Table note a

These events were offered through the PLS PDD and were available to Justice counsel both within and outside of the PLS. Most information for this table was obtained from event evaluation reports. In addition, counsel offer training outside of PDD, which is not captured in this table.

Return to table note a referrer

Table note b

ILAPS conducted some events jointly with CAILS, which are reflected in this grey-shaded column. These sessions were already included in the CAILS column, so are not counted in the overall totals.

Return to table note b referrer

In addition to PDD sessions, counsel offer training directly to DLSUs or Portfolios, when requested. This training outside of PDD can be for formal events such as special training days or on an ad hoc basis. Several sections provided information on these training activities, which sometimes exceeded the number of PDD sessions offered. As these non-PDD events constitute a significant amount of PLS training, the PLS may want to track and evaluate these sessions more systematically. Information provided to the evaluation differed by section and did not always include information on the participants (number or location within government) or the subject of the training. Based on the information provided, the training outside of PDD was varied and included subjects such as the Official Languages Act in the workplace (by OLLS), presentations on particular court decisions (by OLLS and HRLS), and legal principles in specialized settings such as the Supreme Court (HRLS). Documents and key informants also identified contributions made by the PLS to training through practice groups; the development of educational tools and materials (including case briefs, annotated statutes, and checklists such as the Charter Checklist) for use by Justice counsel; and in response to specific requests for training from government departments and agencies.

Stakeholders consulted for the evaluation (including key informant, case study, and focus group participants) expressed satisfaction with the training sessions, conferences, and tools and materials made available to Justice counsel by the PLS. Stakeholders identified few training gaps, overall. Focus group participants, in particular, mentioned the role of training offered by the PLS to other Justice counsel and other government departments in promoting awareness of PLS services, describing ongoing training as “important” and “critical” to ensuring that new DLSU or department/agency staff members are aware of the current law and public law issues about which PLS can be consulted.

With the training data currently available, it is not possible to assess trends in the availability of, or demand for, the variety of training offered by the PLS. Although stakeholders representing the PLS mentioned that PLS sections meet with the PDD to discuss training, the type of data gathered on training events that have taken place makes it difficult to discern whether the training provided by the PLS is meeting needs or whether any gaps exist.

Training available to PLS counsel

In addition to the training offered by PLS counsel, it is important to consider training and skill development opportunities available to PLS counsel. Overall, the evaluation found some room for improvement in this area.

Evaluation results suggest that satisfaction with the training and skill development opportunities available to the PLS has decreased over the evaluation period. While the majority of PLS respondents to the Public Service Employee Surveys in 2005, 2008, and 2011 said that they receive the training they need to do their job, and that they have opportunities to develop and apply the skills to advance their careers, results of these surveys suggest a decrease in satisfaction (and an increase in dissatisfaction) with training and career enhancement opportunities over time (see Table 12 and Table 13). The decline of levels of satisfaction is greater for PLS than for the Department as a whole, and the results show that PLS counsel have gone from higher levels of satisfaction when compared to the Department to lower levels of satisfaction for both training and the opportunity to develop and apply skills to advance their careers.

Table 12: PLS and Justice respondents’ opinions on training required to do their work
I get the training I need to do my job.
Survey year Agree Neither agree nor disagree Disagree Don’t know or N/A
PLS Justice PLS Justice PLS Justice PLS Justice
2005 88% 79% N/A N/A 8% 20% 4% 2%
2008 76% 72% 11% 11% 12% 16% 2% 1%
2011 72% 75% 11% 10% 16% 14% 1% 1%

Source: Public Service Employee Surveys for 2005, 2008, and 2011

Note: Summation of percent values for rows may not equal 100% due to rounding.

N/A cells indicate data not available in the survey reports. The 2005 survey used a slightly different scale from the 2008 and 2011 surveys. In 2005, respondents could select “strongly agree, mostly agree, mostly disagree, strongly disagree, don’t know, or not applicable”. In 2008 and 2011, respondents could select “strongly agree, somewhat agree, neither agree nor disagree, somewhat disagree, strongly disagree, don’t know, or not applicable”.

Table 13: PLS and Justice respondents’ opinions on career enhancement/development opportunities
I have the opportunities to develop and apply the skills I need to enhance my career (2005 and 2008); or My department or agency does a good job of supporting career development (2011).
Survey year Agree Neither agree nor disagree Disagree Don't know or N/A
PLS Justice PLS Justice PLS Justice PLS Justice
2005 76% 69% N/A N/A 16% 28% 8% 3%
2008 64% 56% 16% 17% 16% 25% 3% 2%
2011 57% 61% 14% 13% 28% 24% 2% 1%

Source: Public Service Employee Surveys for 2005, 2008, and 2011

Note: Summation of percent values for rows may not equal 100% due to rounding.

N/A cells indicate data not available in the survey reports. The 2005 survey used a slightly different scale from the 2008 and 2011 surveys. In 2005, respondents could select “strongly agree, mostly agree, mostly disagree, strongly disagree, don’t know, or not applicable.” In 2008 and 2011, respondents could select “strongly agree, somewhat agree, neither agree nor disagree, somewhat disagree, strongly disagree, don’t know, or not applicable.”

Other lines of evidence (mainly key informant interviews and focus groups) pointed to several potential factors contributing to this apparent decline in satisfaction with training.

  • First, budgetary restrictions have imposed limitations on both the availability of training opportunities and the ability of PLS counsel to take part in them. Stakeholders consulted for the evaluation mentioned that budget cutbacks have limited the ability for PLS counsel to register for, and travel to, training events, and have decreased access to certain library services.
  • Second, training opportunities may not be available to meet the needs of expert PLS counsel. Stakeholders identified that budget pressures, combined with mandatory CLE requirements put in place by the provincial law societies, have meant that training opportunities have focussed more on general workforce and practice management, and that fewer courses are offered on highly specialized legal issues.

Stakeholders provided further support for the Public Service Employee Survey results regarding opportunities for career development. Some noted that few opportunities for upward movement or career enhancement currently exist within the PLS; some highly qualified PLS counsel remain at more junior-level positions because the Sector is not able to offer higher-level positions.

4.2.6. Consideration of PLS Legal Advice

It should be noted that the evaluation intentionally focused on the consideration of PLS advice, rather than the degree to which clients make decisions that match the advice. This is in recognition of the fact that PLS advice is not the only factor that affects decision making. Departmental policy on the provision of legal and policy advice to government departments emphasizes that counsel should respect the choices made by clients, even if they do not agree with the choices. It is essential that PLS counsel retain their impartial status and refrain from advocacy of a particular position. The degree to which clients make decisions based on PLS advice is not an indicator of PLS performance; more important is the extent to which counsel provide independent, neutral legal and legal policy advice.

The evaluation found that PLS advice is considered to a large extent by DLSUs and clients. As identified in Section 4.1.1, PLS counsel are widely considered as public law experts within the government and their perspectives are, therefore, generally respected and valued. The majority of stakeholders consulted (key informants, case study interviewees, and focus group participants) mentioned the importance of PLS advice and the contributions of the Sector to the consideration of legal risk in decision making. In addition, case studies, file review, and key informant interview results indicate that the PLS is generally consulted relatively early in the life of a file; in the majority of reviewed files, the PLS was engaged before the initial risk assessment was made and before clients made decisions regarding legal options or litigation strategies. According to stakeholders, the earlier the PLS is involved in a file, the easier and more likely it will be for client departments and agencies to factor PLS advice into decision making.

Based on case studies, focus groups, and key informant interviews, the evaluation found that DLSU counsel routinely consider PLS advice. File review results support this, as most of the files reviewed provided evidence that PLS advice was considered by DLSU counsel in the development of legal strategies and in the provision of advice to clients. In addition, evaluation results provide some evidence that PLS advice has led to positive outcomes. One case study, in particular, provided an example of how following PLS advice led to a successful outcome in a shorter amount of time than if the client had continued to pursue its original strategy.

Case study, key informant, and focus group participants identified that not all clients are aware of the PLS or to what extent the legal advice they receive from their DLSU counsel comes from consultations with the PLS. However, evaluation results indicate that clients do, generally, consider PLS legal advice before making decisions; most of the files reviewed provided written evidence that the client considered PLS advice in decision making.

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