Criminal Law Policy Function Evaluation

Executive Summary

1. Introduction

The Criminal Law Policy Section (CLPS) is the federal centre of expertise on criminal law and procedure including offences, enforcement powers, and sentencing and is jointly responsible with other units for advising the government on other policy and legal areas such as national security and terrorism. CLPS’ mandate is twofold and includes supporting the Minister of Justice in the development of criminal law and criminal justice policy and advising the Government of Canada on criminal law and criminal law policy issues.

The evaluation of CLPS was conducted between November 2012 and December 2013. This is the first evaluation of the Section, and the first major policy function evaluation within the Department under the 2009 Treasury Board Policy on Evaluation. In accordance with this policy, the evaluation addresses the core issues of the relevance and performance of the Section, that is, the policy development process rather than individual policy initiatives. The evaluation covers the work of CLPS between fiscal years 2008-09 and 2012-13.

2. Methodology

The evaluation methodology consisted of a document and data review; key informant interviews with counsel and other professionals in CLPS and in other areas of Justice who have worked with CLPS, and representatives of client/partner departments, provinces and territories, non-government organizations and other bodies; as well as a file review. Triangulation was used to verify and validate the findings obtained through these methods and to arrive at the overall evaluation findings.

3. Findings

3.1 Relevance

The Government has identified justice and public safety as a priority in Throne Speeches that have occurred during the evaluation period and is actively pursuing an ambitious criminal law reform and national security agenda.

CLPS directly supports the federal government’s legislative and policy agenda on criminal law issues through its policy development work and by supporting the Minister of Justice throughout the Cabinet and Parliamentary process. As such, over the past five years, the Section’s work as outlined in Departmental annual reports has been closely aligned with governmental priorities and commitments outlined in Throne Speeches.

The basis for the federal role in the development of criminal law policy is found in the Department of Justice Act and under the Constitution Act, section 91(27) which provides that the criminal law, except the constitution of the courts of criminal jurisdiction, but including criminal procedure, are matters of exclusive federal authority. While the Parliament of Canada is responsible for enacting the criminal law, the administration of justice is a provincial responsibility.

3.2 Performance

3.2.1 Effectiveness

The evaluation found that the Section is achieving its expected outcomes, though several external constraints such as the fast pace of policy development, the loss of counsel (particularly senior counsel) and decreased financial resources, are hindering its optimal effectiveness.

The evaluation generally found a high level of satisfaction with CLPS services among all external key informant groups. CLPS counsel are considered to be experts in criminal law by clients and Justice Canada counsel who have worked with the Section. Furthermore, most key informants consider the advice they receive from the Section to be of high-quality in that it is useful, timely, consistent and responsive to their needs.

While multiple lines of evidence show that the Section is producing quality products in terms of what is asked for within established timelines, which are often very short, some respondents (both within and outside the Section) indicated that the level of analysis and development of policy options is adversely affected. The fact that policy and legislative initiatives must proceed quickly, leaves less time for counsel to undertake thorough analyses, fully develop options, build a better, more complete record and conduct comprehensive consultations.

CLPS counsel collaborate with the provinces and territories as well as engage with numerous stakeholders within the Government of Canada such as other federal departments, and with external stakeholder groups, such as the Canadian Bar Association and the Canadian Association of Chiefs of Police to discuss criminal law issues and reforms. Although recognizing the importance and value added of these relationships, CLPS counsel noted that the fast-paced policy environment in which they find themselves often leaves limited time to consult within and outside the Section. Correspondingly, some client/partner departments and jurisdictions expressed concern that they are not always consulted in a timely manner. Some provincial key informants also indicated that the lack of meeting minutes/records of decision for Federal/Provincial/Territorial working groups can result in misunderstanding or differing recollections of meeting outcomes.

CLPS relies on a network of close, positive, collaborative working relationships with many varied stakeholders to deliver high-quality services. As such, it is paramount that the Section maintain a close dialogue with these groups. Multiple lines of evidence (interviews with provinces/territories, other areas of Justice, and client/partner departments) indicate that CLPS generally has a very good working relationship with its many diverse stakeholders. Although all provincial and territorial key informants and stakeholder groups generally indicated that their working relationship with the Section is very positive, some (other areas of Justice and other federal departments with whom the Section works collaboratively) identified a desire for more proactive outreach and systematic information sharing. For example, key informants noted that it would be helpful to know: CLPS’ priorities and any upcoming consultation/engagement activities so that they can anticipate and plan ahead for these; and the various points of contact within the Section for specific subject matter expertise. Some key informants also noted a desire for improving the feedback loop since they can be left wondering how helpful their input was to the Section and if/how it was used.

3.2.2 Efficiency and Economy

The Section is achieving its expected outcomes using a limited amount of resources, though not in a manner that is sustainable. More than one third of CLPS staff who completed the 2011 Public Service Employee Survey indicated that they are not able to complete their assigned workload during their regular working hours (sometimes, rarely never/almost never). Moreover, multiple lines of evidence indicated that the demanding work environment is beginning to have a negative impact on staff morale.

Although the Section has experienced a rise in demand for its services, there has not been a corresponding increase in financial and human resources. In fact, the Section has experienced a substantial decrease, in both expenditures and full-time equivalents (FTEs) over the evaluation period.

The convergence of several factors, that is, the loss of counsel (particularly at the senior level), an increased demand for the Section’s services, and short turnaround times are considered to pose a growing pressure on the Section’s limited resources, having prompted it to adopt a more strategic approach to service delivery. The Section has undertaken several steps to improve efficiency such as assigning files based on experience, expertise, workload and operational needs and making use of prior advice when relevant, among others. Even so, the evaluation identified other potential areas, such as the team structure, that could further improve effectiveness and efficiency.

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