Criminal Law Policy Function 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.
The evaluation considered the relevance of CLPS’ services with respect to the rationale for the provision of criminal law policy services by the Department, the continued need for its services, the responsiveness of CLPS to government priorities, and the Section’s support of the Department’s statutory obligations and its contribution to Departmental strategic outcomes.
4.1.1 Alignment with Government Priorities – Criminal Law Reform Agenda
CLPS’ work responds directly to the government’s priorities for criminal justice as the Section is actively engaged in supporting the Minister’s criminal law reform and national security agenda. In support of the government’s priorities, the Section provides legal policy advice and supports the progress and passage of key law reform bills in the areas of public safety, sentencing, and criminal procedure and that support the government’s security and anti-terrorism initiatives.
CLPS’ alignment with federal priorities is also demonstrated by comparing Speeches from the Throne with the Section’s activities listed in Departmental annual reports.
During 2011-12, CLPS provided legal and policy advice and supported the government in the introduction of seven crime bills including Bill C-2, the Fair and Efficient Trials Act (mega trials); Bill C-10, the Safe Streets and Communities Act that merged nine previous crime bills that had died on the Order Paper and included sentencing reforms addressing child sexual offences, conditional sentences of imprisonment and serious drug offences; Bill C-36, the Protecting Canada’s Seniors Act;and Bill C-26, the Citizen’s Arrest and Self-Defence Act. Protecting children from sex offenders, tougher sentences for those who abuse seniors and clarifying and strengthening the laws on self-defence, defence of property and citizen’s arrest were among the federal priorities identified in the 2011 Speech from the Throne. Improving the efficiency of Canada’s criminal justice system was identified among the government’s priorities in the 2008 and 2010 Speeches from the Throne. The Section also provided support for the introduction of Bill S-7, the Combating Terrorism Act which proposed both new amendments as well as amendments to re-enact expired anti-terrorism provisions, and Bill S-9, the Nuclear Terrorism Act which included proposals to create new nuclear terrorism offences. National security and terrorism were identified in the 2007, 2010 and 2011 Speeches from the Throne.
In 2010-11, the Section supported the Minister’s introduction of 15 bills (nine of which were re-introductions of bills that had died on the Order Paper in the previous Session of Parliament). These included such bills as: Bill S-6, the Serious Time for the Most Serious Crime Act (Faint hope) (proposing laws requiring that violent offenders serve their time in jail was identified as a priority in the 2010 Speech from the Throne); Bill S-9, the Tackling Auto Theft and Property Crime Act (tackling property crime, including the problem of auto theft was identified as a priority in the 2007 Speech from the Throne); Bill C-21, the Standing Up for Victims of White Collar Crime Act (cracking down on white-collar crime and securing justice for victims through tougher sentences was identified as a priority in the 2010 Speech from the Throne); Bill C-22, An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service (protecting children from Internet luring and cyber abuse was identified as a priority in the 2010 Speech from the Throne); Bill C-30, the Response to the Supreme Court of Canada Decision in R. v. Shoker Act and Bill C-48, the Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act (proposing laws ensuring that for multiple murderers, life means life and requiring that violent offenders serve their time in jail was identified as a priority in the 2010 Speech from the Throne); and Bill C-51, the Investigative Powers for the 21st Century Act (the introduction of legislation to improve investigative powers for the twenty-first century was identified as a priority in the 2010 Speech from the Throne).
In 2009-10, CLPS was actively engaged in supporting the Minister’s legislative agenda as evidenced by the 14 criminal justice bills that were introduced in Parliament that year Footnote 6. Among these, Bill C-14, An Act to amend the Criminal Code (organized crime and protection of justice system participants), amended the Criminal Code in order to enhance the capacity of the criminal justice system to address organized crime. The 2008 Speech from the Throne identified the strengthening of legal provisions related to organized crime as a priority.
In 2008-09, the Section actively supported the Minister of Justice throughout the Cabinet and Parliamentary processes for the government’s various priorities that included the Tackling Violent Crime Act. The 2006, 2007, and 2008 Speeches from the Throne identified the government’s commitment to curb violent crime. The Section supported the government to help ensure the eventual passage and implementation of Bill C-2, Tackling Violent Crime Act in 2008 which groups together five bills that had been dealt with separately in the first session of the 39th Parliament. The five broad categories of legislative measures create two new firearm offences and provide escalating mandatory sentences of imprisonment for serious firearm offences; strengthen the bail provisions for those accused of serious offences involving firearms and other regulated weapons; provides for more effective sentencing and monitoring of dangerous and high-risk offenders; introduces a new regime for the detection and investigation of drug impaired driving and strengthens the penalties for impaired driving; and raises the age of consent for sexual activity from 14 to 16 years. Additionally, the Section supported the Minister in the introduction of several other bills, including Bill C-15, An Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other Acts and Bill C-25, An Act to amend the Criminal Code (limiting credit for time spent in pre-sentencing custody).
The 2008 Speech from the Throne indicated that legal provisions would be strengthened in key areas, including organized crime and gang violence. In February 2009, the Minister introduced in Parliament Bill C-14, An Act to amend the Criminal Code (organized crime and protection of justice system participants) to address violence associated with organized crime and gangs. The 2008 Speech from the Throne also identified the efficiency of Canada’s criminal justice system as a priority. The Section was responsible for legislative changes to enhance the efficiency of criminal procedure through Bill C-13, An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments), whichreceived Royal Assent in May 2008.
4.1.2 Demand for CLPS Services
An active government agenda on criminal law reform has translated into a sustained demand for the Section’s policy development expertise. The Section managed an average of 13 government bills during each of the last three Parliamentary Sessions that occurred during the evaluation period. Five Parliamentary Sessions occurred over this period Footnote 7, and there were 45 government bills under the Minister of Justice’s responsibility where the Criminal Code was the subject of the reform Footnote 8, 15 of which were reintroductions of previous bills that had died on the Order paper (some including additional provisions). Included in this number are two major omnibus bills (i.e. Bill C-2, the Tackling Violent Crime Act and Bill C-10, the Safe Streets and Communities Act), that together, included provisions from 14 previous bills. Although Bill C-10, the Safe Streets and Communities Act, included provisions of nine bills that had been drafted and introduced in an earlier Parliamentary Session, iCase data indicates that CLPS counsel spent as many as 775 hours or 103 person days on this bill alone. iCase data also indicates that the Section spent approximately 3965 hours or approximately 530 person days working on government bills more generally in each of 2011-12 and 2012-13. However, these figures provide only a partial picture of time spent on government bills as hours are not put against a bill until it has a name and number (which occurs when a bill is introduced in the House of Commons or in the Senate). As such, all of the work completed before a bill is introduced in Parliament is not included and would increase these figures substantially. This preliminary work is recorded under different themes (e.g. security, terrorism, and sentencing) and is difficult to attribute to a specific bill.
Private Members’ Bills
There has been and continues to be an increased willingness on behalf of the Government to consider and support Private Members’ bills Footnote 9 on criminal law reform. As a result, the Section is dedicating additional time and effort to monitoring and providing timely policy and legal advice to the government on these bills than was the case in the past. LEGISinfo, the Parliament of Canada’s online research tool for finding information on current and past legislation before Parliament, indicates that fully 38% (n=8) of all Private Members’ bills with Criminal Code amendments that have received Royal Assent since 1910 were passed by Parliament during the Parliamentary Sessions that occurred during the evaluation period. The Section managed an average of 26 Private Members’ bills during each of the last three Parliamentary Sessions that occurred during the evaluation period (from January 2009 to September 2013).
Although Private Members’ bills are drafted outside of the Department of Justice, typically with the assistance of Parliamentary counsel, they nevertheless require a considerable amount of time and effort on the part of CLPS staff. CLPS was the lead in providing support to the Minister/advising the government on 52 Private Members’ bills during the evaluation period, including 17 that were reinstated in a new Parliamentary session. iCase data indicates that CLPS counsel spent approximately 1900 hours on Private Members’ bills from 2010-11 to 2012-13 or 253 person days over the three year period. Similar legislative support and public and media relations materials (except clause-by-clause books) required for government bills are generally required for Private Members’ bills. Additionally, CLPS works with legislative drafters to develop government motions to amend these bills where necessary. Although Private Members’ bills are typically drafted by a Parliamentary Counsel (Legislation) employed by the House of Commons and are usually much shorter and less complex than government bills, there are added challenges associated with these bills due to the Private Member bill process itself. There is often a lack of background information and no easy way for the Section to test its understanding of the Member of Parliament’s objectives/intentions for the bill as there is no direct communication channel or working relationship between CLPS and Private Members.
Other Policy Outputs
The Section’s policy outputs are not comprised solely of legislative initiatives. Rather, policy outputs also consist of, but are not limited to regulations, policy options, position papers, and consultation documents.
The Section has instituted the practice of tracking the quantity and types of outputs it produces. Documentation provided by the Section indicates that it produced a large volume of varied products during the evaluation period. From 2008-09 to 2012-13, it produced on average, 928 documents each year including speeches, talking points and briefing notes for senior officials, commonly for the Deputy Minister and the Minister, as well as Cabinet documents (e.g. Memoranda to Cabinet), correspondence to the public, clause-by-clause binders, Questions and Answers, position papers and presentation decks.
Actively Managed Files Footnote 10
Evidence of the ongoing need for CLPS, in terms of overall demand for its services, is also reflected in the number of files that were managed by the Section during the evaluation period. According to iCase data, the number of actively managed files within the Section increased by approximately 10% between 2010-11 and 2012-13, from 762 to 840 files. This increase is seen in advisory, general and legislative support files but is most predominant for advisory files. Correspondingly, the hours spent by counsel on actively managed files also increased. Over the same time period, the number of hours of legal services provided by CLPS increased by 44%. These results however, must be considered with caution as this increase is also likely due in part to a greater use of timekeeping by the Section in the years following the implementation of iCase.
Although not a complete picture of workload over the full five year evaluation period, available iCase data indicates that the number of actively managed legislative files within the Section increased by an average of 11% from 2010-11 to 2012-13 and the number of hours spent on these saw an average increase of 36% over the same time period. On average, the Section actively managed 629 legislative files during each fiscal year.
Similar to legislative files, the number of advisory files and the number of hours spent on these also increased from 2010-11 to 2012-13. More specifically, the Section saw an average increase of 21% in the number of actively managed advisory files from 2010-11 to 2012-13 and an average increase of 13% in hours spent managing these. On average, the Section actively managed 48 advisory files during each of the three fiscal years. However, due to the informal nature of some of the legal and policy advice provided by CLPS counsel which may not necessarily be reflected in iCase, together with the differing practices in recoding advisory work, this data is likely not a true reflection of the extent of advisory work within the Section.
4.1.3 Ongoing Need for Criminal Law Expertise
There is an ongoing need for criminal law expertise within the Government of Canada and a continued role for CLPS in providing that expertise.
The development of criminal law policy is highly complex and requires the specialized legal knowledge and expertise of CLPS counsel. Evaluation results show that perceptions of the need for CLPS are linked to the unique criminal law expertise of the Section’s counsel. Internal documentation indicates that advice is typically sought by counsel in a number of departments and Justice headquarters sections who have attempted to find solutions before contacting CLPS and seek the Section’s input only on more obscure or difficult issues. Many of the Section’s clients who participated in an interview, noted that CLPS is a tremendous source of legal expertise in a specialized area and its advice and input adds great value to their work. In describing the risks to the Government of Canada if criminal law reforms go forward without the benefit of the best expertise on criminal law and the Criminal Code that is available through CLPS, respondents indicated that:
- criminal law reforms could go forward that undermine the policy attached to the Criminal Code (for example by legislating something outside the Criminal Code which should be in the Criminal Code or which undermines a rule or offence in the Criminal Code);
- what is negotiated at the international level through treaties and agreements may not be able to be incorporated in Canada’s domestic law;
- the domestic legal framework may not adequately support international efforts to combat crime; and
- initiatives may not be optimal, thereby resulting in unnecessary litigation.
CLPS also plays a fundamental role in the development of Canada’s legislative framework. It serves the important and unique purpose of assisting the Minister in delivering on the Government’s criminal law reform agenda, monitoring the implementation and application of criminal law, identification of trends and concerns, identification of options for reform, and where reforms are needed, the legal and criminological development of reforms and all tasks associated with amending legislation.
Government priorities continue to signal the need for CLPS. As mentioned earlier in the report, the government has identified justice and public safety as a priority in Throne Speeches that have been delivered over the evaluation period and is actively pursuing an ambitious criminal law reform and national security agenda. CLPS is responsible for delivering on the government’s criminal law reform and national security agenda through its policy development activities.
4.1.4 Alignment with Departmental Strategic Outcomes
The Department’s two strategic outcomes reflect the dual roles of the Minister of Justice and the Attorney General of Canada.
Although the program sub-activity criminal justice, which is inclusive of the work of CLPS, falls under the first strategic outcome within the Department’s Program Alignment Architecture, the Section does in fact contribute to both Departmental strategic outcomes.
Strategic Outcome 1: A fair, relevant and accessible Canadian justice system.
In developing new or amended legislation and regulations, CLPS contributes to the Department of Justice’s first strategic outcome. Ensuring its achievement requires continuous law reform activities to fulfill the commitments and top priorities of the government. This work responds to the changes needed in criminal law to address the evolving legal, social, technological and moral issues facing Canadians. For instance, the rapidly changing technological environment creates challenges for the criminal justice system, as new types of criminal activity emerge that may necessitate new investigative techniques. The ongoing and accelerated pace of such change creates pressure on the justice system both to update legislation to respond to these changes and to develop new approaches to protect Canadians.
The international justice environment is also an increasingly important consideration in the development of the Canadian justice system and in promoting Canadian security and prosperity more generally. The Section has become more implicated in international work due to globalization and technological advancements that have favored an increase in transnational crime and terrorism, which cannot effectively be dealt with by domestic means alone. The government not only has to take action domestically, but also has to take part at an international level to develop and implement measures there that are coordinated with Canadian criminal law and criminal law policy and that advance and protect Canadian interests and values. International conventions and protocols, to which Canada is party, must be reflected in domestic law.
Strategic Outcome 2: A federal government supported by high-quality legal services.
CLPS is a provider of legal advisory services to the Government of Canada, and as such directly supports the Department of Justice’s second strategic outcome. CLPS contributes to this outcome by providing formal legal opinions on criminal law, including on criminal procedure and sentencing, as well as advice in relation to such issues as the creation of offences in regulatory statutes or the granting of powers to enforcement officers or inspectors. The Section provides legal advice to the Minister of Justice, to other parts of the Department and to other federal departments.
4.1.5 Alignment with Federal Roles and Responsibilities
The basis for the federal role in the development of criminal law policy is found in 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. Responsibility for Canada’s criminal justice system is divided between the federal and provincial/territorial governments. While federal responsibility encompasses matters related to the peace, order and good government of Canada as well as the specific subject-matter of the criminal law, provinces are responsible for the administration of justice.
The Department of Justice Act establishes the powers, duties and functions of the Minister as the official legal advisor of the Governor General and the legal member of the Queen’s Privy Council for Canada, with responsibility to
“see that the administration of public affairs is in accordance with law; have superintendence of all matters connected with the administration of justice in Canada, not within the jurisdiction of the governments of the provinces, advise on legislative Acts and proceedings of each of the legislatures of the provinces and generally advise the Crown on all matters of law referred to the Ministry of the Crown, and carry out such other duties as are assigned by the Governor in Council to the Minister.”
Section 5.1 of the Common Service Policy identifies the Department of Justice as being responsible
“Pursuant to the Department of Justice Act for the legal affairs of the government as a whole and for providing legal services to individual departments and agencies through functions related to the office of the Attorney General and the Minister of Justice. These services include the provision of legal advice, preparing legal documents, drafting legislation, regulating or conducting litigation, and overseeing all legal mechanisms used to achieve the overall objectives of the government.”
Thus, the role of CLPS in supporting the development and implementation of criminal law policy is an appropriate role for federal government and falls within its authority.
4.2 Performance – Achievement of Expected Outcomes
According to the Treasury Board’s 2009 Policy on Evaluation, evaluating performance involves assessing effectiveness, as well as efficiency and economy. The subsections below discuss the effectiveness of CLPS – in other words, the extent to which the Section is achieving its expected outcomes.
4.2.1 Enhanced Knowledge and Understanding of Domestic and International Criminal Law Issues
The evaluation considered the enhancement of knowledge and understanding of domestic and international criminal law issues from two perspectives: 1) within the Section – in other words, the activities undertaken by CLPS counsel to enhance their personal knowledge and understanding; and 2) outside the Section, that is, the educational/training activities undertaken by CLPS counsel to enhance the knowledge and understanding of criminal justice partners and stakeholders (e.g. judges, crowns and police) of domestic and international criminal law issues.
188.8.131.52 Proactive Monitoring
CLPS counsel monitor the legal and policy environment as an integral part of their job—maintaining their subject matter expertise demands that they maintain a high level of awareness regarding case law trends and emerging policy issues. However, CLPS counsel indicated that an active criminal law reform and national security agenda has meant that they have had to focus on responding to immediate government priorities, leaving less time for proactive monitoring. Some CLPS counsel noted that this focus on myriad short-term urgent items has reduced their capacity to undertake core strategic policy planning and research. This in turn poses a risk in that the Section may not be as able to respond to emerging future policy priorities in a timely manner.
Even though most CLPS counsel indicated that they have less time to dedicate to this, they still proactively monitor the legal and policy environment. This is done in order to identify policy and legislative responses that would improve the Canadian criminal justice system and/or international legal framework activity and is accomplished by: monitoring and reviewing press clippings and legal periodicals; attending conferences and international meetings; participating in interdepartmental, Federal/Provincial/Territorial, and international meetings, working groups and committees; undertaking comparative law work; and monitoring case law. This work is essential to, for example, developing an awareness of the use of existing offences, challenges in applying the law, and changing patterns of crime.
CLPS engages with the provinces and territories, as well as with numerous stakeholders within the Government of Canada such as other federal departments and with other external stakeholder groups including bodies such as the Uniform Law Conference of Canada, the Canadian Bar Association and the Barreau du Québec. Consultations occur at all stages of policy development – from initiation (e.g. to further counsel’s understanding of a problem, provide a forum to inquire as to whether a given issue is something that needs to be addressed, and to help identify possible solutions to a problem) through to implementation (e.g. input on coming into force dates, challenges with implementation). CLPS counsel reported that these consultations are very effective in helping them understand the broader implications of a given policy initiative/legislative reform in that they offer an operational or front-line perspective. Additionally, input from end users allows CLPS to identify and resolve problems with various policy options in advance of them becoming law.
Although recognizing the importance and value added of these consultation processes, 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 partner departments indicated that they are not always consulted in a timely manner. Although recognizing that timelines are often outside of the Section’s control, partner key informants suggested that CLPS should provide as much advance notice as possible of upcoming consultation/engagement activities so that stakeholders and partners can anticipate and plan ahead for these.
Coordinating Committee of Senior Officials (CCSO) – Criminal Justice
The process of engaging and collaborating with other criminal justice partners includes consultations with the provinces and territories as they have constitutional responsibility for the administration of justice. CLPS consults the provinces and territories on the identification of emerging issues, the development of policy and legislative options and the implementation of reforms (e.g. input on implementation dates) to improve the justice system. Communications are two-way in that CLPS also shares information with its provincial/territorial partners, for example, by providing legislative updates concerning current bills as well as those coming into force.
Consultations occur primarily through the Coordinating Committee of Senior Officials (Criminal Justice) and its working group structures. The working groups are organized by subject matter area (e.g. Sentencing) Footnote 11 and most are co-chaired by a provincial/territorial and a federal representative from CLPS. There is a record of meeting minutes for several, but not all working groups. When asked about whether there are processes/practices that could improve communications between CLPS and their ministry, a few provincial/territorial respondents noted that the lack of meeting minutes/records of decision taken in the working groups can result in misunderstandings or differing recollections of meeting outcomes. The increased use of technological means to convene F/P/T meetings makes meeting minutes ever more important given that teleconferencing/videoconferencing can sometimes be unreliable (e.g. sound quality). Given that the CCSO working groups are a shared F/P/T responsibility, the Section may want to consider collaborating with the provinces and territories to gauge the level interest among members of the various working groups in having access to meeting minutes/records of decision.
Provincial and territorial representatives who were interviewed indicated that there has been less collaboration and information sharing between CLPS and provincial/territorial jurisdictions over the evaluation period than had been the case in the past. Key informants indicated that the extent of consultations with the provinces/territories varies from file to file as does the adequacy of time to provide input, both of which are a function of the increased pace of policy development. Multiple lines of evidence (key informant interviews and file review) found that in the case of Bill C-2, the Fair and Efficient Criminal Trials Act (assented to June 26, 2011), for example, reforms were a product of a great deal of consultation and collaboration with P/T partners, and in particular the Criminal Procedure Working Group. Recognizing that the provinces would likely need time to prepare for the implementation of this legislation Footnote 12, the views of the provinces and territories were also sought regarding coming into force dates for this bill.
Some provincial/territorial respondents indicated however that there have been instances where they have been notified of some bills right before and at times after coming into force/proclamation dates. Respondents noted that while outside of CLPS’ control, this lack of information sharing has a negative impact on F/P/T relations in that it can leave the provinces and territories unprepared for implementation. Despite this, provincial/territorial respondents are generally very satisfied with their working relationship with CLPS and have found that appropriate CLPS counsel have been assigned to the CCSO (Criminal Justice) and its working groups.
184.108.40.206 Research to Support Policy Development
The evaluation examined the processes and practices related to departmental research in the area of criminal law policy. The Research and Statistics Division (RSD) of the Department facilitates legal policy development within CLPS by providing research and statistical services to support an evidence-based policy process and decision making. The Division focuses on a wide variety of justice-related issues including, but not limited to, criminal procedure reform, Criminal Code reform, sentencing, terrorism and security, and victims.
The Department’s Research and Statistics Division provides research support to CLPS through a range of services including undertaking data collection, conducting and managing research studies, providing statistical support, interpreting data, identifying collaborative F/P/T research projects and providing support on international work (e.g. responding to information requests, coordinating Canada’s input on research/statistical tools).
The evaluation found that RSD involvement on criminal law policy files is generally ad hoc and dependent on the nature of the file and the desire of the policy officer lead to involve RSD. CLPS counsel who have used RSD services noted that the products provided by the Division have helped inform the ‘lay of the land’ and to scope out an issue providing a more thorough and clearer picture to policy and decision makers. RSD services and products provide CLPS counsel with contextual information that helps them respond to common questions such as “how big is this problem”, “what is going on in other countries”, information that is also helpful in responding to Parliamentary queries, appearing before Parliamentary Committees and responding to correspondence from the public. A large majority of CLPS counsel interviewed did not note any changes that could be made to the research services/support provided by the RSD to better meet their needs and further noted the high-quality of services and products offered by the Division. Some key informants also cited specific research studies that have been led by RSD that they found to be particularly useful and to which they still refer today.
RSD has been subject to cost-cutting exercises and subsequent budgetary and staffing reductions. From 2008-09 to 2012-13, the Division faced gradual reductions in its staff complement. In 2008-09, the Division employed 35 staff, which decreased to 17 staff in 2012-13, a reduction of 51%.
A decrease in resources coupled with the accelerated pace of policy development where policy and legislative initiatives are proceeding very quickly has meant that RSD has had to adapt its products and services to these new realities. CLPS counsel are now relying less on large scale research studies that examine broad policy questions and require primary data collection that take years to complete. Rather, CLPS research requests now tend to be more focused and the deliverable more condensed and expected within a much shorter turnaround. To make the most efficient use of time, RSD and CLPS are increasingly looking to secondary or existing research (e.g. from the Canadian Centre for Justice Statistics (CCJS) at Statistics Canada).
The changing policy development environment has lessened, but has not entirely eliminated the need for Departmental primary data collection or original research. For example, some CLPS counsel noted the limitations in the coverage and comparability of national data from the CCJS, which they rely on frequently to scope out criminal law policy issues. Primary data collection is still needed in order to help fill information gaps such as these.
During the evaluation period there was no formal mechanism within the Department for identifying research priorities in the area of criminal law policy. Rather, policy officers within CLPS worked directly with researchers to identify research information needs, which were not always aligned with areas of senior management focus and departmental priorities. However, RSD and CLPS are now taking a more strategic approach to the research planning process. Both parties critically assess requests for research services to ensure that they are reflective of departmental/governmental priorities and address a real need. Additionally, CLPS management collectively reviews and identifies priority items in the Section’s research plan, which now requires their endorsement. With this new planning process, RSD anticipates being able to better support CLPS in its work by having a better understanding of the Section’s needs and priorities through CLPS management input into the planning process and regular communication with the Section. It is expected that this planning process will also help RSD better direct its diminished research capacity.
Over the evaluation period there was no formal mechanism in place to facilitate information exchange/communication between RSD and CLPS. Given the increased pace of policy discussions in particular, there needs to be an effective mechanism for information exchange between RSD and CLPS so that researchers are aware as policy decisions are made and priorities change and can therefore resynchronize their work accordingly. Regular, ongoing communication between RSD and CLPS is key to ensuring that criminal law policy research remains aligned with changes in policy direction.
220.127.116.11 Training and Other Post-Legislative Enactment Support
The evaluation had limited evidence on the effectiveness of training and other post-legislative enactment support, though key informants did provide some examples of the Section’s work in this area. For example, CLPS advises clients and partners on the application and meaning of amendments to the Criminal Code and provides interpretation and legislative history. It also provides input on communications products to introduce criminal law reforms and develops material for CCSO explaining the intent of new legislation. The Section provides litigation support on cases involving criminal law application or interpretation and related Charter challenges, including for example, by providing litigators with background material on the rationale for legislation, occasionally does presentations to CCSO or at international meetings/conferences, reviews and helps develop training material (e.g. for police and prosecutors) and has been consulted on occasion by provincial jurisdictions regarding some of their training and public legal education and information (PLEI) material. Most key informants who indicated that CLPS has supported their organization with the implementation of new policy/criminal law reforms or international instruments dealing with criminal law matters stated that the support provided met their needs. Of note is that many key informants were not aware that CLPS provides training and education/information material to criminal justice stakeholders which may indicate a need for the Section to increase awareness of its role in this area.
4.2.2 High-Quality Legal and Policy Advice on Domestic and International Criminal Law Issues
Satisfaction with CLPS Services
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 and most key informants indicated that the legal and policy advice provided by the Section is of high-quality Footnote 13 in that it is timely, useful, and responsive to their needs. Some key informants noted that requests are not always fulfilled in a timely manner, but also acknowledged that the Section seems overworked and very busy with other priorities. This, however, can still be frustrating for clients with time-sensitive requests who are also operating in a fast-paced policy environment with quick turnaround times. That being said, the file review did not reveal any missed client-imposed deadlines.
Although a very strong majority of key informants consider the Section’s services to be of high-quality, some did express the desire for a more client-service oriented approach from CLPS in terms of the legal and policy advisory services it delivers to other departments. While recognizing that CLPS manages many competing priorities, key informants noted that it would be helpful if CLPS counsel would help manage expectations by specifying the amount of time needed to fulfill specific requests and provide a date for delivery of the work-product.
Although key informants from international bodies (e.g. United Nations, foreign states) were not interviewed as part of the evaluation, domestic partners/clients indicated that CLPS has an excellent reputation at the international level and further noted that positive feedback is often received from foreign delegations mentioning CLPS’ high level of competency in international discussions, particularly during negotiations. Another indication that CLPS is highly regarded internationally stems from the recent appointment of a CLPS counsel as Chair of a G8 Roma-Lyon working group Footnote 14, the appointment of a CLPS counsel as the Vice-Chair of the Committee of Experts of the Mechanism for Follow-Up on the Implementation of the Inter-American Convention against Corruption Footnote 15, and the appointment of a CLPS counsel as the Rapporteur of the United Nations study on cybercrime.
Accessibility of CLPS Counsel
The Section’s clients and partners are generally aware of when they should consult with CLPS counsel and find that the roles and responsibilities of the Section are clear. Requests are made both formally and informally, with some requests being transmitted formally through senior management and others made more informally to CLPS counsel directly. Key informants indicated that there are no barriers to seeking advice from the Section and that CLPS counsel are very accessible. While client/partner departments appreciate having a direct line to CLPS counsel, some noted that it would be helpful to know the points of contact within the Section for specific subject matter expertise. Although a File Responsibilities List itemizing the Section’s files and the counsel responsible for each one is updated and circulated within the Section on a regular basis, it may want to consider sharing this information with clients and partners.
Constraints in Providing High-Quality Advice
The pace of policy development has accelerated over the evaluation period. The associated short timelines, which were confirmed during the file review, were noted by almost all CLPS counsel as a constraint in their ability to provide high-quality legal policy advice. Similarly, 81% of CLPS employees indicated that the quality of their work suffers because of unreasonable deadlines in the last PSES in 2011. 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, conduct comprehensive consultations, fully develop options and build a complete record.
In the last PSES in 2011, 72% of CLPS employees also indicated that the quality of their work suffers because of constantly changing priorities. Changes in priorities affect the work of CLPS in that it can require considerable reorganization to transition from one priority to another. Shifts in policy direction can also result in the loss of momentum on long-term files and can create compressed time frames for responding to new policy issues. Although changing priorities are a function of policy work generally and largely outside of the Section’s control, management is trying to keep staff up to date with these changes. This is accomplished through regular staff meetings. The Section has implemented: team leader meetings which occur on a bi-weekly basis; all staff meetings which occur on a monthly basis; legal counsel meetings which occur on a monthly basis; and team meetings (the frequency of which is determined by the Team Leader) to encourage information sharing within the Section.
Distinguishing Between Legal and Policy Advice
The advice produced by the Section can consist of either legal opinions or policy advice, but commonly incorporates elements of both. Some clients noted that the distinction between the policy (what the client should or should not do within a framework which is not circumscribed by the rule of law) and legal advice (what the client can and cannot do within the rule of law and whatever specific legislative and case law rules may apply) is not always clear. In legal matters, the DLSU counsel act as gatekeepers for their client as legal advice flows from the Section to DLSU counsel and through them to the client. However, policy advice does not follow the same path. As policy advice is a matter between policy experts in the departments concerned, CLPS counsel acting in their policy capacity will generally work directly with their counterparts in the relevant departmental policy units. In policy matters, where there are issues that involve both policy and law, non-lawyers have difficulty distinguishing between the two. Some clients indicated that it would be helpful if CLPS would separate, to the extent possible, legal from policy analysis.
Consistency of Policy Advice
As mentioned previously, CLPS provides both legal policy and legal advice and some of the advice provided by the Section combines elements of both. In policy matters, differences of opinion within or between departments are not unusual as there is not necessarily any single “right” or “wrong” answer. In fact, with regard to criminal law policy matters, one of the central mandates of the Section is to assimilate differing perspectives and either resolve conflicts through negotiations and consensus where possible or put them to senior officials in the form of options. While the practice is to present coherent and consistent policy advice, senior officials are well-equipped to consider disagreements and inconsistencies, and may be better advised when presented with a range of options and the arguments raised in favor of and against each. In other words, the requirement for the Department of Justice to “speak with one voice” when providing legal advice, does not necessarily apply to policy advice.
Internal Consistency within CLPS
Given that the Section’s organizational structure is based on specific areas of subject matter expertise and that files can involve cross-cutting issues that fall within the mandates of more than one team with potentially varying interests (e.g. human trafficking in which the Social and Moral Issues Team and Organized Crime Team are involved), it is important that the Section ensures that advice is consistent among the different teams in the Section.
One way consistency in legal advice is achieved is through consultation within CLPS among peers, team leaders and managers. The file review allowed for an exploration of consultations, collaborations and interactions occurring on files. Both the file review and interview findings indicate that internal consultations within the Section, both within and between teams (when files involve multiple CLPS teams) and between counsel and managers, occur regularly. Key informants also cited the Section’s regular internal communication practices as a factor contributing to a coordinated approach. As mentioned earlier, the Section has instituted bi-weekly team leader meetings, monthly Section meetings which alternate between counsel and all-staff, and team meetings to facilitate policy information exchange and communication across teams. Legal advice provided by CLPS counsel is also subject to a formal approval process and flows through the CLPS management structure, thus ensuring it is being seen through a broader lens. The team structure was also noted as helping protect against inconsistent advice in that CLPS staff know where the subject matter expertise is within the Section, and therefore know with whom they should be consulting internally.
Consistency within the Department of Justice
As with the consistency of advice within the Section, CLPS counsel rely on consultations to ensure that the legal advice provided is consistent with other advice provided or position taken by the Department on the same topic. It is up to the policy officer to reach out to other areas of the Department when needed. CLPS counsel maintain a network of close working relationships with counsel in other areas of the Department through its participation in a number of working group and committee structures that help ensure consistency in the advice that is provided. Multiple lines of evidence (interview findings and file review) indicate for example that CLPS counsel participate on interdepartmental legal committees (either as members or chairs). These committees typically consist of DLSU counsel working at the various client-departments involved as well as Public Law Sector counsel and help ensure a Justice-wide view on legal issues surrounding multi-departmental initiatives. CLPS also appears to be well connected to other areas of Justice as it is represented on various Departmental committees at the Senior Assistant Deputy Minister and Director General levels.
CLPS counsel, DLSU counsel and client departments interviewed, indicated that legal advice flows from the Section to DLSU counsel and through them to the client. In the case of legal advice, DLSU counsel act as a gatekeeper for its client and are professionally responsible to the client for the advice. DLSU counsel are also responsible for integrating legal advice from a range of different sources into a final legal opinion which gives a clear and internally-consistent response to the client’s needs.
Contribution of CLPS’ Internal Partners
Various support networks within the Department, such as the specialized sections, research, legislative drafting and communications functions feed into the Section’s policy work thereby contributing to the quality of the end product. Memoranda to Cabinet, for example, combine financial, communication, research, and legal and policy elements, the two latter being frequently intermingled with parallel advice from other parts of the Department. Some key informants representing various other areas of the Department indicated that the Section would benefit from more effective support if there was more rigour in the requests being made of them by CLPS. Key informants indicated that the level of information provided for requests is variable. By providing the right level of information, for example on the background/context of the issue and the request to the extent that CLPS has or is able to obtain this information, both parties can be more helpful to one another. Of note is that CLPS counsel indicated that they too often lack appropriate background information regarding the request, which many identified as a factor that impacts their ability to provide high-quality advice. However, as will be discussed later in the report, CLPS management indicated that it is trying to obtain more complete information at the time it receives the requests for its services, which should in turn serve to clarify the requests made by CLPS to other areas of the Department.
Some respondents representing other areas of the Department also noted a desire for improving the feedback loop. They mentioned that they often do not receive feedback from CLPS after they have provided input/services to the Section and are left wondering how helpful their input was and if/how it was used. By receiving feedback from CLPS, these sections can make adjustments as necessary to ensure that the provision of support to the Section is as effective as possible.
4.2.3 Contribution to the International Criminal Law Framework
Advancing Canadian Interests during International Negotiations
The Section engages with its international partners in order to advance Canadian interests and values in the development of international standards and norms and treaties, particularly global anti-crime and terrorism measures. The Section’s treaty law work includes the preparation of negotiation strategies, participation in negotiations, the development of domestic implementation laws, and the development and delivery of technical support in relation to the ratification or accession of a treaty by other countries, as well as the evaluation of other states’ compliance with international instruments.
CLPS leads the Canadian Delegation at the United Nations Commission on Crime Prevention and Criminal Justice, which is the central policy-making body within the United Nations system providing policy guidance in the field of crime prevention and criminal justice. The United Nations Commission on Crime Prevention and Criminal Justice adopts resolutions and decisions in the area of crime prevention and criminal justice, including terrorism. CLPS initiates consultations and legal research in order to develop Canada’s positions in relation to draft resolutions. Key informants noted that the preparation work carried out by CLPS is essential to defending Canadian interests since resolutions are often negotiated simultaneously in different meeting rooms and there is no time to go back to Canada for further consultation. As a further example, a CLPS official has participated as the Head of the Canadian delegation at meetings of the Working Group on Criminal Justice and the Rule of Law of the Global Counter Terrorism Forum Footnote 16 and has negotiated the Rabat Memorandum on Good Practices for Effective Counterterrorism Practice in the Criminal Justice System Footnote 17.
Although CLPS is responsible for leading the Canadian Delegation at the United Nations Commission on Crime Prevention and Criminal Justice, the DFATD generally has the lead on issues related to Canada’s foreign policy and international relations. Multiple lines of evidence (key informant interviews, file review and document review) indicate that CLPS is often called upon by the DFATD to provide advice during the preparation work for negotiations and/or in real-time during actual negotiations that have an impact on the Canadian criminal law framework and where substantive subject-matter expertise lies in CLPS (e.g. human trafficking). For example, CLPS has been heavily involved in providing advice on resolutions being negotiated at the United Nations General Assembly (UNGA). Key informants noted that CLPS’ criminal law expertise is essential in addressing UNGA resolutions dealing with crime related issues such as cybercrime and terrorism.
Provision of Technical Assistance Internationally
Governments and justice system stakeholders are increasingly eager to learn from international examples. Countries such as Canada that have effective justice systems, are approached for advice, information and guidance by countries that want to improve their own systems of justice. The evaluation found that CLPS plays an important role is this regard. Key informants indicated that the Section is frequently asked by the DFATD to provide technical assistance to countries seeking to reform their justice system. In this respect, CLPS has participated in United Nations expert working groups, presented Canadian anti-terrorism efforts at United Nations technical assistance conferences, and presented international instruments and Canadian laws to representatives of other countries to enhance their comprehension of the issue at hand. CLPS has also been heavily involved in the drafting of the Model Law on Mutual Legal Assistance in Criminal Matters and in the Budapest Convention on Cybercrime and its Additional Protocol. The first aims to facilitate the assistance given and received by a country in investigations, prosecutions and judicial proceedings in relation to criminal matters. The second seeks to address cybercrime by harmonizing national laws, improving investigative techniques, and increasing cooperation among nations.
Occasionally, CLPS has provided advice directly to another country. For example, advice has been sought by other countries on how Canada’s laws in a particular area of organized crime are being used as they may be contemplating amending their law in a similar fashion. CLPS has also received requests to assist other countries in reviewing their laws (e.g. human trafficking).
Assistance with the Implementation and Monitoring of International Instruments
The evaluation found that CLPS has effectively supported the implementation of international instruments. Key informants indicated that CLPS has been involved in the development of assessment guides that allow countries to determine whether their domestic laws are in compliance with international obligations, and in the development of technical guides identifying international obligations. CLPS has also been involved in the implementation of bilateral initiatives, such as theFramework Agreement on Integrated Cross-Border Maritime Law Enforcement Operations between the Government of Canada and the Government of the United States of America Footnote 18 (Shiprider), through the development of domestic legislation.
Typically, an international treaty includes a formal follow-up mechanism, which consists of peer monitoring, to ensure that signatory countries are in compliance with the international obligations under the treaty. The evaluation found that CLPS has participated in expert working groups to monitor the progress of implementation in certain countries and to formulate recommendations to ensure an effective implementation of legal, regulatory and operational measures. The evaluation also found that CLPS has provided assistance to expert working groups who come to Canada to verify the implementation of international instruments in this country. Although key informants provided examples of CLPS’ work in peer monitoring and in assisting working groups who verify Canada’s implementation of international instruments, there was limited evidence regarding the effectiveness of this support as the perspectives of international organizations were not sought for this evaluation.
4.2.4 Government Decision Making is Informed by Legal and Policy Advice
The evaluation focused on how government decision making is informed by CLPS legal and policy advice, rather than the degree to which clients make decisions that match the advice. This is in recognition of the fact that CLPS provides legal policy advice and support, but does not control whether their recommendations are accepted; the government makes the final decisions on the policy direction. These decisions are based on a complex consideration of many factors. Therefore, it cannot be assumed that any decision not to follow CLPS’ advice is a negative indication of the quality of their work.
Due to the very nature of the policy development process, that is, through the drafting of a Memorandum to Cabinet which contains Ministerial Recommendations, the Section’s advice is considered in government decision-making at the Ministerial level. The documentation and file review also provided concrete examples of the government’s consideration and use of the Section’s advice, as legal and policy advice on these files led to changes to the Criminal Code. Additionally, key informants identified examples of the Section’s contributions to legislative and other initiatives of other departments where criminal law matters (e.g. criminal offences, punishments, enforcement) within the Section’s expertise were incidental to non-criminal policy initiatives (e.g. implementing international treaty obligations). Similarly, the evaluation found that CLPS advice is considered to a large extent by DLSU counsel and client departments. CLPS staff indicated that they are generally consulted by client departments and other areas of Justice when they should be and as CLPS counsel are considered criminal law experts within the government, their perspectives are generally respected and valued by key informants. Client groups identified some of the risks of not consulting with CLPS: not being able to incorporate what is negotiated at the international level through treaties and agreements into Canada’s domestic law; law reforms that undermine the policy attached to the Criminal Code; and unnecessary litigation. The potential significance of the legal risks that can arise if CLPS is not consulted, presumably also contributes to the consideration of the advice by clients.
4.3 Performance – Demonstration of Efficiency and Economy
The Treasury Board’s 2009 Policy on Evaluation defines efficiency as the production of “a greater level of output…with the same level of input or, a lower level of input with the same level of output,” and economy as the achievement of expected outcomes using the minimum amount of resources required (Treasury Board of Canada Secretariat, 2009). Applying these definitions to the work of CLPS, an analysis of its efficiency and economy considers the actions of the Section to manage costs and demand for criminal law policy services.
Measures Taken by CLPS to Enhance Efficiency
The Section operates efficiently as it has been producing a greater level of output, that is, policy products and legal policy and legal advice with a lower level of input (financial resources and full-time equivalents). Increasing demands and shorter timelines have placed significant pressures on the Section’s limited human and financial resources, prompting the Section to adopt a more strategic approach to service delivery. The Section has undertaken several steps to improve its efficiency while maintaining the quality of its services. It assigns files based on experience, expertise, workload and operational needs and some key informants indicated that there is ‘buddying up’ on files so that realignment is easier if there is a shift in priorities. Although not noted explicitly by key informants, this process also likely promotes corporate knowledge sharing so when counsel leave the Section for other opportunities or retire there is some continuity on the file. It should be noted however, that this buddy system does not seem to be a Section-wide measure as some key informants noted that some counsel still maintain exclusive ownership of their files.
The Section also endeavours to keep track of the advice it provides so that it can make use of it again and is trying to acquire more information with respect to client requests up front as a lack of contextual/background information around the request can slow the process down. The Section has also implemented an “X drive” which allows counsel to share secret information electronically within the Section rather than having to hand deliver it, and is relying less on formal briefing notes as a means of providing advice and more on oral briefings, email replies and shorter memos which are less resource intensive. The Department’s organizational structure also creates efficiencies in that there are few layers between the Director General of CLPS and the Minister’s Office, the Section’s primary client for legal policy advice and development. Internal documentation indicates that advice to the Minister is transmitted directly, via the Senior Assistant Deputy Minister, Policy Sector and Deputy Minister.
Training, Equipment, Tools and Resources
The evaluation found that, in general, the training, equipment, tools and non-financial resources available to CLPS counsel are sufficient. The large majority of CLPS counsel who responded to the last PSES agree that they have the materials and equipment needed to do their work (88% of CLPS respondents agreed or strongly agreed), and that material and tools provided are available in the official language of their choice (94% agreed or strongly agreed). Additionally, fully 80% of CLPS employees indicated that they get the training they need to do their job. Some counsel also noted that it has been helpful having access to an in-house translator and paralegal in the Section.
Some key informants indicated however, that the Section is behind in technology. Although noting that the Section’s implementation of the “X drive” now allows them to share secret electronic information within the Section, it does not yet have the technology in place to share secret information electronically outside the Section with the other areas of the Department with which it often collaborates. Rather, the Section is still having to hand deliver secret documentation that it shares with stakeholders. The evaluation also found that CLPS has encountered difficulties producing iCase reports that would be useful to it as a policy function. However, ongoing discussions between CLPS and the Business Practices Division are occurring to address these issues.
18.104.22.168 Improving Efficiency
Key informants identified potential areas for increasing efficiency, which are described in the sub-sections that follow.
The results of the last PSES indicate that 86% of CLPS employees feel that the quality of their work suffers because of too many approval stages. This issue was reiterated by some key informants who indicated that there are too many levels of approval within the Section and further noted the approval process as a potential area for improving efficiency. The review process was also noted by some key informants as being overly stringent.
Many client/partner departments and key informants in other areas of Justice noted the high-quality of CLPS products, which is likely a function of the Section’s thorough approval and editing processes. These processes provide an opportunity for more senior counsel who are aware of broader issues and developments to ensure consistency in the advice provided by the Section. They also allow more senior counsel to verify, and if necessary, correct or amend legal or policy analysis. Recognizing the need to ensure quality on the one hand, and efficiency on the other, the Section may want to assess its approval and review processes to ensure that they are not excessive as they do add to the length of time taken to deliver the work-product and leave less time for the actual formulating of the advice.
The team structure within the Section, which is organized by subject matter area (e.g. Sentencing, High-Tech Crime) helps ensure that it can effectively deliver policy development services as counsel possess expertise in substantive areas. Some counsel noted however, that the team structure does not necessarily continue to reflect the scope of the Section’s work and the Government’s emphasis on certain priorities over others. The Section may need to be more flexible in aligning its resources with changing government priorities so when there is a focus on a specific area (e.g. on sentencing or high-tech crime) within the legislative agenda, there are people who can help out. This would not only create efficiencies, but would help ensure that no one team/individuals are overburdened.
There has been some realignment of existing resources through the creation of virtual teams where CLPS counsel are shared between teams for cross-cutting issues where the work falls within the mandates of more than one team. On the human trafficking file, for example, counsel from the Social and Moral Issues Team and Organized Crime Team worked together and on the cyber bullying file counsel from the Social and Moral Issues and High-tech Crime Teams worked together. However, the mobility of counsel across teams and the assignment of files outside of a team on files that are not cross-cutting seem to occur less frequently. Evaluation findings indicate that the file assignment process could be working more effectively as some key informants noted that there is an uneven distribution of work within the Section. This suggests that the sharing of counsel across teams could be more fluid in order to help ensure a more even distribution of the workload within the Section.
Record Keeping/Filing System
Record keeping is not only important for capturing institutional memory, it is also important for constitutional challenges as CLPS counsel are often called upon to provide background material (e.g. rationale behind legislation) to litigators to aid in defending legislation. Although there are departmental standards for information management and CLPS has a formalized filing system in place, some CLPS counsel indicated that they have nevertheless encountered difficulties retrieving documentation, either because a file was incomplete or they had difficulty locating the file itself. Some further expressed a desire for a directive on file keeping, which may be indicative of a lack of awareness of the standards/filing system that are already in place.
Managing Demand through Knowledge Dissemination
Both internal documentation and key informants identified external information sharing as an area that the Section could consider to improve efficiency by helping it manage demand. These options include contributing to Justipedia (the Department’s legal database for opinion work) as well as the provision of other online legal guidance. While recognizing that there are restrictions in terms of the sharing of secret information outside the Section, it is likely that some advice could still be shared, as well as products which outline general principles about criminal law, for example, considerations in crafting offence provisions. Also, if certain questions are posed often or there are topics where advice is repeatedly requested, materials that respond to them could be provided through this forum.
Information Exchange and Collaboration within CLPS
Information exchange/sharing issues can affect efficiency in that they can create duplication of efforts or unnecessary work, result in unclear instructions or direction and consequently lower productivity. They also have the potential to create a knowledge deficit in an organization if there is no corporate knowledge sharing.
The Section has implemented a series of management, all-staff, team, and legal counsel meetings to encourage information sharing within the Section. Some key informants indicated that the Section is also exploring other avenues to promote information sharing such as the use of a CLPS Sharepoint site to encourage more sharing of previous advice within the Section, which would not only improve efficiency but also promote consistency in the advice provided. As discussed earlier, there is also some sharing of counsel across teams where files involve cross-cutting issues and some ‘buddying up’ on files to encourage more corporate knowledge sharing within the Section.
The file review also provided evidence that peer review or a “second opinion” from a colleague also occur within the Section. These reviews provide a means of verifying legal analysis or incorporating the expertise of a colleague who deals with a related area or has past experience in the area and may identify issues or options that others may have missed. The evaluators found evidence during the file review of consultations and peer reviews among counsel in the Section and also between counsel and managers. Though, as noted previously in the report, some find the review/approval process somewhat burdensome in that the right balance between quality and efficiency has not yet been achieved.
In addition, the Section has organized and offered in-house training (CLPS counsel training CLPS counsel) to promote information sharing and exchange between counsel/policy officers. For example, there have been sessions on tips and advice for providing testimony at parliamentary committees and on lessons learned on specific substantive files.
Information Exchange and Collaboration outside CLPS
The policy work of CLPS benefits from the contributions and the support of a wide variety of actors and functions within the Department including, but not limited to, research, communications, and legislative drafting. Outside the Department, other federal departments and agencies, government bodies and non-government organizations provide input into policy development through the consultation process.
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 maintains a close dialogue with these groups. Multiple lines of evidence (interviews with provincial/territorial key informants, other areas of Justice, and client/partner departments) indicate that CLPS generally has a very good working relationship with its diverse partners and stakeholders. Although all stakeholder groups 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, particularly in the area of forward planning and prioritization of work. Respondents noted that Speeches from the Throne and new mandate letters represent appropriate junctures to set up meetings between CLPS and their work unit/organization for joint planning purposes.
Integration and Coordination of International Activities
Due to its substantial involvement in the international realm, CLPS often plays a coordinating role in sharing information regarding international and bilateral meetings, gathering Justice input to assist DFATD and international reporting, and sharing the results of international meetings with colleagues. However, some key informants indicated that there is no clearly identified structure within the Department to coordinate its international activities. Although this is a larger Departmental issue that is outside the scope of the evaluation, it has the potential to affect the integration and coordination of CLPS’ international activities with other areas of the Department. Different groups within the Policy Sector, including CLPS, International Legal Programs Section (ILPS), Youth Justice Section (YJS), Policy Integration and Coordination Section (PICS), and the Family, Children and Youth Section (FCY) are also actively involved in international criminal justice activities as are groups from the Public Law Sector (i.e. Public International Law Section (PILS) and HRLS) and the Litigation Branch (i.e. International Assistance Group (IAG)).
Even though these groups have different mandates (e.g. some focus on the policy side such as CLPS, while others focus more on the advisory/operational side), some key informants indicated that there are times where the distinction between policy and operations is not always clear. This could lead to potential duplication of work.
The increasing demands for international engagements and bilateral partnerships are putting pressure on the Policy Sector, but particularly on CLPS’ limited financial and human resources. In order to enhance the Sector’s strategic planning, coordination and reporting mechanisms regarding its international work, CLPS developed an International Strategic Framework (ISF) in 2011. The ISF identifies general principles and criteria for determining international priorities, and applies to the entire Policy Sector. At the time of the evaluation, the first year of implementation of the ISF was being assessed and its impact had not yet been determined. Although the ISF aims to create a more strategic approach within the Policy Sector, it was not developed for use by other sectors or branches of the Department.
Another impact arising from the lack of a centralized/coordination function within the Department for international activities is that CLPS’ engagement at the international level is not always known outside the Department, or at times internally. Some key informants indicated that discussions regarding certain policy initiatives with an international component did not include CLPS, particularly during the preliminary stages. Federal and departmental stakeholders are not necessarily aware of the need to contact CLPS at the outset when developing initiatives with an international dimension, indicating a potential need for the Section to better communicate its role in the international realm.
Financial and Human Resources
The Section is achieving its expected outcomes using a limited amount of resources. As mentioned in previous sections of this report, key informants generally indicated that the Section is providing high-quality advice and most were very satisfied with the services provided by the Section. Although the Section is effective, it may not be operating in a manner that is sustainable.
Roughly half (52%) of CLPS employees who responded to the 2011 PSES indicated that the quality of their work suffers because of having to do the same or more work, but with fewer resources, a sentiment that was reiterated by key informants. 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. As mentioned in earlier sections of this report, CLPS has experienced a rise in demand for its services, however there has not been a corresponding increase in financial and human resources. In fact, the Section has experienced a substantial decrease, in both expenditures (by 21% from 2009-10 to 2012-13) and FTEs (by 18% from 2009-10 to 2012-13) due to attrition and salary reductions. The Section has lost five senior level counsel, without being able to replace them. This has the potential to affect the effectiveness and the efficiency of the Section’s services in complex matters, erode the experience and knowledge base of the Section and affect the quality of legal work. Internal documentation indicates that CLPS is in a salary deficit position and is experiencing significant challenges in terms of backfilling vacancies. The Section has to look within the Department to fill positions as there is no new hiring, but many counsel do not have criminal law expertise. Now that the Public Prosecution Service of Canada is no longer part of the Department of Justice, there has been a further narrowing of the potential pool of available talent. Although facing a shortage of FTEs, almost all client and partner departments indicated that appropriate counsel are assigned to work with them considering the expertise and experience of the counsel and the nature of the file.
Key informants (CLPS staff, managers and other areas of Justice) indicated that CLPS counsel are continually working at a very fast pace and some indicated that resources are not sufficient to complete the tasks required of the Section in the timelines requested and to the degree they should be done. Of note, more than one third (37%) of CLPS staff who completed the 2011 PSES 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 multiple lines of evidence indicate that the Section is facing a resource deficit, internal documents and key informants indicated that the Section may not be fully optimizing the resources it has at its disposal. There was a marked difference in perspective among CLPS key informants regarding the sufficiency of human resources in the Section. Roughly half of CLPS key informants indicated that the Section has a sufficient human resources complement. They noted that the team structure, on which the file assignment process is largely based, has led to an uneven distribution of work within the Section.
As mentioned previously, CLPS has experienced a significant drop (by 57% from 2008-09 to 2012-13) in its O&M expenditures, including travel. Although travel budget reductions have translated into some cost savings for the Section in that there is now a greater use of alternative means of participation in external meetings (e.g. teleconferencing and videoconferencing), some key informants indicated that they are having a negative effect on CLPS’ ability to promote and protect Canadian interests in the international context. Some key informants noted that CLPS counsel have had to decline invitations to participate in international and domestic meetings as subject-matter experts and have had to prioritize their participation at different international negotiation sessions. The value of direct CLPS participation in negotiations was iterated by a number of respondents who indicated that CLPS counsel must be present in order to understand the intent of a treaty, why specific words were chosen and to have input regarding the wording.
Key informants across all federal respondent groups (CLPS staff, other Justice staff, partner departments) indicated that CLPS’ involvement in international negotiations has declined over the evaluation period. In this situation, the risk is that if CLPS is not present (e.g. at Organisation for Economic Co-operation and Development), the other negotiators may agree on an interpretation binding all members that does not work for Canada constitutionally. For example, multiple lines of evidence (key informant interviews and file review) indicate that the Canadian Delegation at the 2013 annual session of the United Nations Commission on Crime Prevention and Criminal Justice, which was led by CLPS, was very small compared to those that had attended in previous years. The limited size of the Delegation did not allow for complete coverage of the negotiation sessions. As a result, the Delegation had to prioritize its participation in the different negotiation sessions and work closely through like-minded partners to ensure that Canada’s interests were covered to the extent possible. It should be noted that in 2011, under the leadership of CLPS, member states of the United Nations Commission on Crime Prevention and Criminal Justice developed new procedures to extend to one month prior to the annual session the deadline for countries to submit their draft resolutions; previously the deadline had been the first day of the annual session. Key respondents indicated that these new timelines have increased CLPS’ capacity to strategically prioritize its participation in United Nations Commission on Crime Prevention and Criminal Justice negotiation sessions.
Some key informants also noted that due to travel restrictions, CLPS counsel are not as able to attend international conferences and meetings dealing with current topics of concern. These fora are important since they enhance counsel’s understanding of the file so they can better advise the government. To play their role in the development of criminal law policy in Canada effectively, CLPS counsel must be able to closely monitor the positions of other countries and the evolution of international consensus in this regard.
The current travel cap also limits the ability of counsel to travel for training which, in turn, increases the importance of internal training opportunities. The Section has organized and offered in-house training for policy officers (CLPS counsel training CLPS counsel) for example on tips and advice for providing testimony during parliamentary committees and sessions have been offered on lessons learned on specific substantive files. Additionally, there have been sessions offered by other specialized sections in the Department specifically for CLPS counsel. Key informants noted that these sessions not only help meet the needs of counsel in terms of the continuing professional development requirements of their law society, they promote a better awareness of specific files and their challenges and build camaraderie within the Section. Although the evaluation did not specifically assess the effectiveness of this training (e.g. in meeting the needs and expectations of counsel and in increasing their knowledge and understanding), 80% of CLPS employees did indicate that they get the training they need to do their job in the last PSES.
- Date modified: