Public Safety, Defence, and Immigration Portfolio Evaluation

Executive Summary

1. Introduction

This document constitutes the final report for the evaluation of the Public Safety, Defence, and Immigration (PSDI) Portfolio, whose mandate is to support the Minister of Justice and Attorney General of Canada in the provision of high-quality legal services to the Minister of Public Safety, the Minister of National Defence, and the Minister of Citizenship and Immigration. In so doing, PSDI assists these Ministers in fulfilling the mandates and responsibilities of the departments and agencies under their authority. In accordance with the 2009 Treasury Board Policy on Evaluation, the evaluation addresses both the relevance and the performance of the Portfolio. The evaluation covers the period from 2008/09 to 2013/14.

2. Description of the Portfolio

The PSDI Portfolio is one of the six portfolios that the Department of Justice Canada established to structure and manage the range of advisory, litigation, and legislative services that its legal counsel offer in support of client departments and agencies. It includes three main components: the ADAG Office, including the National Security Law Team (NSLT) and the National Litigation Coordinating Team (NLCT); the nine Departmental Legal Services Units (DLSUs); and PSDI staff in regional offices.

At the end of the fiscal year 2013/14, the PSDI Portfolio operated with just over 750 full-time equivalents (FTEs). Regional offices had 432 FTEs; the DLSUs 209 FTEs; and the ADAG Office had 23 FTEs. The Department of Justice Canada allocated approximately $86 million Footnote 1 to the PSDI Portfolio during that year.

3. Methodology

In order to address the questions included in the evaluation matrix, the evaluation included the following methodological approaches: administrative file and document review; key informant interviews; 10 case studies and a web-based survey of legal counsel.

4. Evaluation Findings

4.1. Relevance

Continued need for PSDI services

The work of the PSDI Portfolio is highly integrated in the ongoing operations of its client departments and agencies. The Portfolio helps these departments and agencies fulfill their mandates by providing critical legal support as they carry on their operations; implement new policies, programs, or legislative initiatives; or conduct litigation.

Throughout the evaluation period, the demand for PSDI services has steadily increased. Among the factors that contributed to this trend is the increasing complexity of legal issues faced by client departments and agencies, resulting in part from the desire to implement highly integrated solutions to emerging policy challenges.

In this context, there is a strong rationale for the support provided by the Portfolio. In files involving multiple departments and agencies or where there is a high volume of litigation (such as immigration law), there is a need for consistency, which in turn, requires efficient monitoring and coordination mechanisms. Evaluation findings indicate that the Portfolio has articulated a clear vision for the coordination of litigation work related to immigration and refugee files. However, the Portfolio has yet to articulate as clear a vision when it comes to other areas of law covered by its mandate.

Responding to federal government priorities

Fundamental changes to immigration and refugee processes, a wide-ranging law and order legislative agenda, and new measures related to national security and anti-terrorism have been some of the federal priorities that have mobilized considerable resources within the PSDI Portfolio. This work was carried out in addition to the ongoing operational support that the Portfolio provides to all its client departments and agencies.

Alignment with federal roles and responsibilities

Under the Department of Justice Act, the Department of Justice is responsible, with few exceptions, to act as the legal advisor to all federal departments and agencies, to conduct litigation for or against the Crown and to draft legislation. This highly centralized structure facilitates a consistent approach to legal service delivery across government. PSDI performs this function on behalf of the Minister of Justice for the nine departments and agencies it serves.

4.2. Design of the PSDI Portfolio

Mandate of the Portfolio

The mandate of the Portfolio is twofold. From an operational perspective, the Portfolio supports DLSUs through budget and resource allocations and the implementation of department-wide or portfolio-specific management initiatives. The Portfolio is also responsible for the management of the law pertaining to public safety, defence, and immigration matters. This is achieved through monitoring, coordination, and the provision of knowledge-specific tools and resources.

Composition

The composition of the Portfolio has evolved over the years, moving from a single entity focused on immigration matters, to a grouping of nine entities that covers a much wider set of law and policy issues. The current composition rests on a fairly strong rationale as there is a commonality of issues that the Portfolio’s departments and agencies must deal with, namely those related to public safety and national security.

4.3. Outcome Achievement

Support provided by the Portfolio

During the fiscal year 2013/14, the PSDI Portfolio actively managed approximately 25,000 files that required over 700,000 hours of legal work. Just over two-thirds (67%) of these hours were for litigation work, while 29% were for advisory work and the remaining 4% for legislative work. Citizenship and Immigration Canada exhibits the highest levels of litigation work in PSDI (with more than 10,000 files in 2013/14). The litigation was driven in part by legislative changes that addressed significant backlogs accumulated in relation to immigration and refugee applications made to the Immigration and Refugee Board. The Canada Border Services Agency, the Royal Canadian Mounted Police, and the Correctional Services Canada also had a significant level of litigation work.

The vast majority of PSDI litigation files were rated as low or medium complexity and of low or medium risk. Approximately one percent of litigation files are considered high complexity or high risk.

The level of demand for advisory legal services depended to a significant extent on the policy initiatives in which PSDI departments and agencies are engaged.

Ability to meet client needs

High-quality legal services have been defined as the extent to which the Portfolio meets client needs by providing legal services that are timely, responsive and useful. Both the results of the Client Feedback Survey conducted in 2011 and the findings from this evaluation point to a high level of satisfaction among client departments and agencies. Clients indicated that they participated in the assessment of legal risk and have used the legal advice they received to make more informed decisions. At times, they even assumed more legal risk as their decisions often take into consideration political, social, economic and other factors, in addition to legal concerns.

Impact of the coordinating and monitoring efforts

During the evaluation period, the NLCT coordinated immigration files and provided significant support in litigation files related to immigration and refugee matters. It has also provided coordination support in non-immigration files, which are typically high profile and involve multiple client departments and agencies. The evaluation has found, however, that the involvement of the NLCT in non-immigration files does not rest on as clear a framework as that for immigration-related files. This has resulted in mixed views expressed from all lines of evidence about the NLCT and its contribution related to non-immigration files.

The NSLT has provided direct support to the ADAG in terms of her functional responsibility for advisory work and has contributed to the coordination of advisory work related to national security. Offering in-depth knowledge in national security matters, the NSLT has also provided direct support to some of the client departments and agencies involved in national security. The evaluation found that its highly specialized function and the fact that the NSLT has only been in operation since 2013, have meant that its role is not well understood by PSDI legal counsel. The NSLT’s work does not appear to rest on a clearly articulated framework, which raises potential challenges, particularly in relation to the other advisory work provided by DLSUs highly specialized in national security matters.

Access to required support and tools

In addition to the assistance they receive from the Public Law Sector, PSDI legal counsel have access to a number of tools and processes that support the quality of their work and contribute to the consistency in the opinions provided on behalf of the Department of Justice Canada. The Department’s legal knowledge portal (Justipedia), practice groups, and peer reviews are seen as being particularly helpful in this regard. In addition, legal counsel have access to some professional activities, although budgetary constraints have limited the ability of legal counsel to access more specialized training.

The one tool that has generally not been reviewed favourably is the legal risk assessment matrix, particularly for advisory files. Footnote 2 Even though litigators have been using the matrix as part of the iCase data entry process for a number of years, they do not appear to find it particularly helpful in managing their files. It should be noted, however, that the collection of risk assessment in iCase does support broader reporting purposes, at the Portfolio level.

The evaluation has noted some issues with respect to consistency in collecting iCase data that have yet to be addressed, particularly the need to standardize the approach used to open advisory files, and to record legislative and litigation support work. Footnote 3 These limitations aside, the Portfolio is able to access valuable data and information on the services it provides, which supports the ongoing management of the Portfolio, and accountability mechanisms such as this evaluation.

4.4. Efficiency and Economy

The Portfolio has implemented measures to maximize the achievement of its results, while minimizing the use of its resources.

The implementation of the Law Practice Model, along with the framework provided by the Process Optimization initiative launched in 2012, has guided a number of efficiency measures within the Portfolio. Of particular significance is the benchmarking initiative applicable to immigration and refugee litigation files. Since these files mobilize the largest portion of resources within the Portfolio, they consequently present the largest opportunity for achieving greater efficiency. Early findings confirm that the benchmarking initiative is producing positive results. A greater proportion of immigration and refugee files are now completed with a lesser investment in legal counsel time. The Portfolio is pursuing the implementation of other sub-components of the benchmarking initiative and is collecting the required data to measure their impact.

At the time of the evaluation, it was too early to assess the results of other efficiency measures such as the multi-client protocol, the screening of client requests related to low complexity advisory matters, and the greater use of paralegals.