Public Law Sector Evaluation

5. Conclusions

This final section of the report presents conclusions based on the findings presented in the previous sections. The information is structured along the main evaluation issues and questions.

Relevance

Is there a continued need for PLS services?

Government priorities continue to signal need for PLS legal services. 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. The evaluation found that clients and other Justice counsel who use PLS legal services consider the PLS sections to provide public law expertise and “whole-of-government” advice on public law issues that is important, particularly for riskier, high complexity files, and is not otherwise available. The demand for PLS legal services has declined between 2008–09 and 2011–12, which was attributed, in part, to cost recovery for legal services obtained from CAILS, HRLS, and ILAPS, and efforts by other Justice counsel to reduce legal costs for clients, although the evaluation did not find that this had affected consultation with the PLS on higher-profile matters. As cost recovery will no longer be used for any PLS legal services, the demand for its services may increase. The evaluation results can, therefore, provide a baseline for assessing the changes in demand for its services.

To what extent do the objectives and activities of the PLS align with the priorities and objectives of the Department of Justice and the Government of Canada overall?

The evaluation found ample evidence of the PLS supporting the federal government’s legislative and policy agendas. The PLS is consulted on these federal priority areas because they inevitably involve public law issues. A comparison of Speeches from the Throne and Budget speeches with PLS operational plans and departmental Reports on Plans and Priorities demonstrates this alignment. PLS sections have been involved in supporting government priorities as varied as national security policy initiatives, criminal law proposals, the implementation of Canada’s Economic Action Plan, trade and investments agreements, and the Roadmap for Canada’s Linguistic Duality, to name a few.

Evaluation results demonstrate that the PLS supports the Department of Justice in meeting its strategic outcomes. The PLS provides an independent, objective review of the impacts of federal legislation and policies for potential constitutional and human rights issues, which supports the first strategic outcome of a fair, relevant, and accessible justice system that reflects Canadian values. The work of the PLS also supports the Department of Justice in achieving its second strategic outcome: the high quality of PLS legal services and the PLS’s alignment with government priorities help to ensure that the federal government is supported by effective and responsive legal services.

To what extent are the legal services provided by the PLS consistent with federal roles and responsibilities?

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. 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.”

Effectiveness

To what extent is the PLS achieving its expected outcomes?

Timely and coherent advice

Based on multiple lines of evidence, the evaluation found that PLS clients (primarily DLSU and regional counsel) consider the legal services received from the PLS to be timely and coherent. The Sector scored highly on timeliness on the Client Feedback Survey, despite the often urgent nature of the requests received. Interviews and file review results showed that many requests for legal services are urgent, with responses required within days. Satisfaction with timeliness was consistent across the PLS with the exception of JLT, which has experienced unique pressures during the time period covered by the evaluation. JLT has experienced a fairly substantial increase in workload, while simultaneously encountering a decline in the number of FTEs for legal counsel. Interviewees noted that they had experienced delays in receiving responses to requests from JLT. Therefore, any efforts to improve timely service could focus on JLT and its possible resource constraints.

Overall the evaluation found that PLS services are coherent and useful to those requesting them. The vast majority of PLS clients rated the coherence of the legal advice provided as either “very good” or “good”. The evaluation did find a few areas of potential improvement. Some DLSU counsel perceived the advice of a few sections, namely CAILS and HRLS, as occasionally too technical or academic for the client departments or agencies without the advice being rewritten by DLSU counsel. Client Feedback Survey results also reflected that CAILS and HRLS had lower scores than other sections on providing a strategic perspective. This opinion, however, needs to be placed in the context of the changing practice environment of the PLS, where its legal advice now is shared directly with the client departments/agencies and more widely across the federal government. This was not the practice several years ago. The PLS has responded by developing best practices for legal opinions, and individual sections have best practices and quality management frameworks that provide guidance on such issues as how to communicate legal advice to clients. Given these results, the PLS may want to consider other ways to respond to this change in its legal practice and how best to work with counsel requesting the advice so that the purpose and use of the advice, including its audience, are clearly defined.

Consistent advice

The provision of consistent advice is both an immediate (to departments/agencies) and intermediate (to the Government of Canada) outcome. Because the provision of consistent advice to immediate clients with appropriate consultations for cross-cutting issues across departments/agencies will result in consistent advice to the Government of Canada, these outcomes are considered together.

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 all three areas, multiple lines of evidence confirm that the PLS is providing consistent legal advice. Consultations within the PLS, between the PLS and other Justice counsel, and between Justice counsel (including the PLS) and other affected departments and agencies are occurring when appropriate. PLS and other Justice counsel reported that when there are disagreements, which were considered to be rare, they could resolve them informally through consultations/meetings between PLS counsel and DLSU or regional counsel. A few areas of potential improvement were noted. While joint opinions from PLS sections are not always appropriate when more than one PLS section is involved on a legal issue, some stakeholders noted that the PLS sections could produce joint opinions more often than they currently are. The evaluation also found that the NLAC, the one formal Justice structure for ensuring consistency for legal advice, was not often used. Many potential reasons were identified for its low usage, including the perceived lack of clarity as to the NLAC’s role and a general lack of awareness of the committee. As a result, it may be appropriate to review the NLAC’s terms of reference and clarify its role in the Department.

All lines of evidence showed that the PLS is performing its duties to inform government litigators, decision makers, and senior government officials of legal risks, legal options, and policy options, when appropriate. While PLS counsel are not involved in all stages of LRM (identification, assessment, mitigation, and management), as the level and stage of involvement depends on the file, those stakeholders who have worked with PLS reported valuing the PLS contributions to LRM. Stakeholders also pointed out that the PLS has somewhat lesser involvement in informing stakeholders of policy options and litigation strategies, as the DLSU and litigation counsel, respectively, are seen as having that role. Nevertheless, key informants were satisfied with the level and quality of PLS involvement. The briefing process was considered generally effective in informing senior government officials of public law issues and legal risks, but some concerns were expressed regarding the lengthy process for the approval of briefing notes, which can create delays, and the nature of the briefing process, where the PLS responds to requests for briefing rather than also determining whether to brief senior officials. However, the PLS has developed other processes to brief senior officials when they have the lead on files.

Effective advocacy of the Government of Canada’s position

Effective advocacy includes communicating the government’s legal position domestically, as well as internationally. Domestically, the PLS contributes to the development of consistent legal positions and a whole-of-government approach to legal issues advocated before courts and tribunals. The PLS’ role in communicating the federal government’s position to domestic stakeholders was considered more limited, as this was considered to be mainly the client department/agency’s role. The evaluation had limited evidence about the effectiveness of the PLS in advocating the government’s position internationally, although based on the examples provided in documents and by stakeholders, the PLS is well respected internationally, and its work contributes to the effective communication of Canada’s legal positions before both international tribunals and other international fora.

Justice counsel receive training on public law principles and trends

The evaluation confirmed that the PLS is actively carrying out its role in providing training to Justice counsel. Combined, its sections have offered over 200 events to over 3,600 participants through the Department’s PDD. These numbers under-represent the training offered by the PLS, as sections provide additional training outside of the PDD. These non-PDD training sessions constitute a significant amount of training. The evaluation found several gaps or other issues with the information collected on PLS training: the PDD information required correction from some sections; the non-PDD training was not consistently tracked by all sections; relevant information was lacking (e.g., number and type of participants, subject matter of training); and sections are not evaluating their non-PDD training sessions. Given the importance of PLS training in promoting the Sector and in informing other counsel about public law issues, the PLS may want to conduct more systematic reviews of its training at the Sector and/or section-level to ensure that training is meeting needs. PLS training provided to other Justice counsel may become even more important once cost recovery is no longer applied to HRLS, CAILS, and ILAPS. The training may assist in the quality and clarity of legal requests and preliminary or partial drafts of legal advice; in other words, training may become an even more important mechanism for managing demand and reducing the cost of PLS legal services.

In terms of training for PLS counsel, the evaluation results suggest that satisfaction with the training and skill development opportunities available to the PLS has decreased over the evaluation period. Potential reasons for this identified by PLS counsel included the need for training that is appropriate for subject matter experts, which was seen as limited by budgetary restrictions on travel and registration for training offered by third parties. In addition, there has been a move to more basic training to meet mandatory CLE requirements of provincial law societies.

Confidence in PLS counsel as experts

All lines of evidence indicated that PLS counsel are considered public law experts. The Client Feedback Survey resulted in a high overall rating for expertise, including the perception that the PLS has an expert level of knowledge. DLSU counsel noted that this expertise enables them to gain client approval for consulting with the PLS. Other Justice counsel generally recognized that the PLS held expertise beyond what the DLSU could offer on public law matters.

Legal advice is considered so that the Government of Canada has an appropriate policy and legal framework that reflects domestic and international obligations. The PLS’ role is to provide legal advice, which the client can factor into its decision making but can decide not to follow. Because the ultimate decision rests with the client, the PLS outcome is to provide legal advice that is considered in developing the policy and legal framework. The evaluation found that PLS advice is routinely considered by DLSUs and clients and is considered to be influential on decision making due to their public law expertise.

Efficiency and Economy

To what extent is the PLS able to manage the demand for legal and policy services?

The PLS was generally found to have sufficient resources (human, technological, materials/equipment, financial) to manage the demand for its services. Counsel generally believe that they have the tools necessary to do their jobs. The one section that appears to have a resource deficit is JLT, as counsel carry a workload that far exceeds other PLS sections and departmental standards for the number of hours per counsel in a fiscal year. The PLS may want to focus efforts on determining whether JLT will have sufficient resources to meet projected demands, particularly given government priorities to negotiate more agreements on international trade and investment.

After data collection was completed for the evaluation, it was learned that cost recovery would no longer apply to any PLS sections. The implications of this on the ability of the Sector to manage demand and maintain its responsiveness, quality, and efficiency in service delivery are unknown, although the evaluation indicated that cost recovery may have reduced demand for PLS services on lower profile (lower risk and complexity) files. The evaluation findings can provide a baseline for the PLS to assess the effects of the new funding approach on demand and efficiency. The PLS may want to consider a review of the effects of the new funding approach on demand levels, service delivery, and administrative efficiencies after the 2013–14 fiscal year.

To what extent are PLS services provided in a cost-efficient manner?

The LPM was instituted to achieve cost savings in legal services, and one method was through matching counsel to the risk and complexity of files in order to achieve efficiencies in legal operations. The idea was that junior counsel would be assigned to lower risk and complexity files. The appropriateness of the model to a specialized, expert unit like the PLS was questioned by stakeholders. The scope of the role of junior counsel within the PLS, which has central responsibilities for a whole-of-government approach to public law issues and must respond to often tight timelines, was considered limited. While stakeholders believe that the assignment of counsel to files under the LPM is appropriate, the ability to confirm this perception is not currently available. Data on legal risk and complexity levels are not available on approximately 99% of PLS files. Even if these data were available, the unit of analysis (a file) may not be appropriate, as the urgency of legal requests (and one file can contain multiple requests) is often what creates the need for senior counsel involvement. In addition, because PLS counsel consider their work generally to be complex, they questioned the applicability of the LPM to the PLS practice environment. To assist with management of the Sector and demonstrate compliance with the spirit of the LPM, the PLS may want to develop performance indicators related to work assignment (file, legal requests) that are appropriate to the PLS and can be tracked.

Generally, the PLS was considered to provide cost-efficient legal services. In fact, during the period covered by the evaluation, the PLS expenditures increased modestly by just over 3%. One area of potential improvement identified by the evaluation was the quality of requests for legal services, which still vary in clarity and completeness. Unclear requests or misunderstood expectations of what the client needs can lead to unnecessary additional work. Training and improved communications between PLS and other Justice counsel should enhance the quality of legal requests. In addition, Justipedia is considered a key tool for improving efficiencies for PLS counsel, as well as for other Justice counsel who can use Justipedia to determine if legal opinions have already been provided on particular questions of law.

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