Public Safety, Defence, and Immigration Portfolio Evaluation

5. Conclusions and Recommendations

This section of the report provides conclusions on each of the evaluation issues addressed in this report and recommendations are included as applicable.

5.1. Relevance

Addressing the need and priorities of the federal government

The work of the PSDI Portfolio is highly integrated in the ongoing operations of its client departments and agencies. Through its advisory, litigation, and legislative work, 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 engage in litigation activities.

Throughout the period covered by the evaluation, the demand for services provided by the Portfolio 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 ensuring a proper coordination of legal services. The need for consistency, particularly in files involving multiple departments and agencies, or where high volume of litigation work is expected (such as litigation related to immigration law), 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. It has yet to articulate as clear a vision when it comes to other areas of law covered by its mandate.

Responding to federal 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

The Minister of Justice holds a legislative responsibility to act as the official legal advisor to all federal departments and agencies, and to conduct litigation for or against the Crown. This highly centralized structure facilitates a consistent approach to legal service delivery, which must systematically consider both legal and policy considerations. The PSDI Portfolio, much like all other portfolios, plays a critical role in supporting the Minister of Justice, through its operational and management activities.

5.2. Design of the Public Safety, Defence, and Immigration Portfolio

Mandate of the Portfolio

The mandate of the Portfolio includes two complementary dimensions. First, from an operational perspective, it directly supports DLSUs included within its scope, and regional offices for the work they perform. This is achieved through budget and resource allocations, and the implementation of department-wide or portfolio-specific management initiatives. Secondly, the mandate of the Portfolio includes a dimension related to the management of the law pertaining to public safety, defence, and immigration. This is achieved through monitoring, coordination, and the provision of knowledge-specific tools and resources.

These two dimensions of the role of the Portfolio are generally well understood, by both managers and legal counsel involved in specific files. This is particularly important in order for legal counsel to appreciate and engage in initiatives that cover these two dimensions of the Portfolio’s mandate.

Composition

The composition of the Portfolio has evolved over the years, moving from a single entity that focused on immigration matters, to a grouping of nine entities that cover a much wider set of policy issues. While the extent to which all components of the Portfolio share common goals and priorities is bound to fluctuate, the current composition of the Portfolio rests on a fairly strong rationale. There is some overlap in the range of issues that all components of the Portfolio must deal with, particularly as it relates to public safety and national security.

As collaboration must, from time to time, extend beyond the Portfolio, the evaluation has found no systematic barriers that would limit the ability of Portfolio components to collaborate with federal departments or agencies that belong to other portfolios.

Governance structure and processes

Managers within the Portfolio participate in structures and processes that facilitate the exchange of information and the collaboration among and between DLSUs and regional offices. These structures have facilitated the flow of information related to Portfolio and department-wide initiatives, as well as to national security and immigration legal issues.

In order to support its ongoing operations, as well as the implementation of corporate initiatives (such as those related to Process Optimization), the Portfolio collects and analyzes financial and performance data. The value of this information is largely determined by its accuracy. In the case of the iCase data, there are some issues with respect to consistency that have yet to be addressed, particularly in the approach used to open advisory files and to record litigation support work. 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.

5.3. Performance

The analysis of performance covers both the achievement of expected outcomes, and the extent to which outcomes have been achieved in an efficient and effective manner.

5.3.1. 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. As already noted, the volume of work has steadily increased over the period covered by the evaluation. In the case of litigation hours, there has been an increase of 72% between 2008/09 and 2013/14, whereas the increase in advisory hours has been 53%, although this can be attributed largely to the introduction of two new DLSUs in 2009/10.

CIC exhibits the highest levels of litigation work in PSDI. In 2013/14, more than 10,000 litigation files were associated with this department. The trend in litigation work performed for CIC during the period covered by the evaluation 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 CBSA, the RCMP, and CSC were also particularly involved in litigation activities.

Regional offices, as well as the Litigation Branch (covering the NCR) have carried out the bulk of PSDI’s litigation work, while DLSUs have provided litigation support, particularly through maintaining ongoing communications with client departments and agencies. The vast majority of litigation files in which the Portfolio has been involved have been of low or medium complexity, and of low or medium risk. Approximately one percent of litigation files are considered high complexity or high risk. It should be noted that, during the period covered by the evaluation, a fair portion of litigation files had been closed without being assessed as to their level of complexity or risk.

Largely as a result of the implementation of the Law Practice Model, there has been an increase in the level of litigation work carried out by LA-01 legal counsel, matched by a decrease in the involvement of LA-02 legal counsel.

In terms of advisory work, the level of support provided to client departments and agencies is largely driven by the range and intensity of policy initiatives in which departments and agencies have been engaged. In the early portion of the period covered by the evaluation, CIC required the highest level of advisory support as it designed and implemented significant reforms to immigration and refugee processes. Later on, CBSA and CSIS experienced significant increases in the demand for advisory work, as national security initiatives were being pursed.

DLSUs are principally responsible for providing advisory services, but data indicates that regional offices have also been engaged, to some extent, in the provision of these services. Much like the trend experienced in litigation work, the implementation of the Law Practice Model has led to some shifts in the distribution of work, from LA-02 to LA-01.

For both litigation and advisory work, specialized units within the Public Law Sector have provided significant support to PSDI legal counsel.

Ability to meet client needs

The ultimate goal of the PSDI Portfolio is to provide high quality legal services to its client departments and agencies. For the purpose of the evaluation, quality has been defined by the ability of the Portfolio to meet client needs by providing legal services that are timely, responsive, and useful.

Both the assessment of client satisfaction done by the Department in 2011 and the evaluation findings collected as part of this evaluation point to a high level of satisfaction among client departments and agencies. Client representatives who participated in the evaluation process indicated that they were in a position to engage in the assessment of legal risk and to use the legal information they were provided with to make more informed decisions.

Based on evaluation findings, it appears that client departments and agencies are increasingly interested in being actively engaged in the assessment of legal risk pertaining to their files and understanding the reasoning behind the opinions provided by PSDI legal counsel. In some circumstances, client departments and agencies also appear more willing to assume greater legal risks. This reinforces the notion that, while legal counsel are responsible for providing legal assessment and opinions, client departments and agencies ultimately make decisions, based on a number of legal, policy, and political considerations.

Impact of the coordinating and monitoring efforts

During the period covered by the evaluation, the NLCT has been actively engaged in the coordination of immigration files. Using the framework contained in the Blue Book, the team has provided significant support to the work of legal counsel involved in litigation files related to immigration and refugee matters, which represents the largest volume of litigation work in which the Portfolio is engaged. The team has also provided coordination support in non-immigration files, which are typically high profile and involve a number of 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 the one provided by the Blue Book for immigration-related files. This has contributed, in part at least, to the mixed views expressed in relation to the NLCT and its contribution related to non-immigration files.

The NSLT has contributed to the coordination of advisory work related to national security. This team has provided direct support to the ADAG in terms of her functional responsibility for advisory work. Offering in-depth knowledge in national security matters, the NSLT has also provided direct support to some of the client departments and agencies more predominantly involved in national security. The highly specialized function of the NSLT, combined with the fact that it has only been operating since 2013, have contributed to the fact that its work and, by extension, its contribution remains only partially understood throughout the Portfolio. Similar to the NLCT, the NSLT work does not appear to rest on a clearly articulated framework, which raises potential challenges, particularly as it relates to the other advisory work provided by DLSUs highly specialized in national security matters.

Access to required support and tools

In addition to the support 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. It does not appear to be particularly well suited for the advisory setting in which many DLSUs operate, and while litigators have been using it as part of the iCase data entry process, 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 noted some challenges with consistency of data entry in iCase, particularly with respect to legislation and litigation support (which was sometimes coded as advisory by some groups and as litigation by others). For the next evaluation, data should also be available on the risk levels associated with advisory files.

5.3.2. Efficiency and economy

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

The department-wide 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. This is particularly applicable to files that are in the lower range of both complexity and risk. 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.

Other measures have also been implemented, including the multi-client protocol and the screening of client requests relating to low complexity advisory matters, but the impacts of these initiatives cannot yet be as readily measured.

Other efficiency measures, such as the greater use of paralegals, were still being implemented at the time of the evaluation.

5.4. Recommendations

The recommendations for the evaluation are listed below.

5.4.1. Clarity of roles and responsibilities

An issue that arose in the course of the evaluation was the lack of clarity with respect to the roles of the NLCT and the NLST, particularly as they relate to other national security legal work being conducted by the PSDI staff in the DLSUs and regions. Counsel indicated that they had a relatively limited understanding of how these two entities worked, even those who had had experience working with them on files. In particular, they did not understand why certain files were chosen to be managed by the NLCT or the NLST.

Recommendation 1: It is recommended that the roles and responsibilities of the NLCT and the NLST be clarified, particularly in the context of other PSDI national security work.
Management Response:

Agreed.

The roles and responsibilities of the NSLT and particularly the NLCT have changed in recent years with the establishment of a broader mandate. As such, it is important to ensure that the roles and responsibilities of these two units are well understood within the Portfolio and Justice.

5.4.2 Consistency of data entry into iCase

PSDI has been active in trying to measure and improve its performance. However, in the course of this evaluation, it was noted that DLSUs do not use a consistent approach to opening advisory files, particularly for those files that only require limited work. Some legal counsel have recorded this work under general advisory files, while others have opened a new specific advisory file for each matter. Unless these practices are the same, it will limit the capacity of the data to support reliable performance measures.

Secondly, the litigation support work provided by DLSUs does not appear to be recorded in a consistent manner. Some DLSUs record this work under the advisory category, whereas other DLSUs recorded this work under the litigation category. Such inconsistencies in data collection practices across the Portfolio can undermine the overall usefulness of the data collected.

Finally, the collection of legislation data is likely incomplete, particularly between the years 2008/09 and 2009/10. In addition, late in the evaluation reporting process, the evaluation discovered an anomaly with the reporting of legislative hours in at least one DLSU, which made it difficult to compare the legislative activity of individual departments.

Recommendation 2: It is recommended that the iCase protocol be fully implemented by PSDI in order to improve the overall integrity of the iCase data.
Management Response:

Agreed.

We agree with the recommendation and fully support the implementation of the new iCase protocol across the Portfolio.

With respect to the gap in DLSU consistency with respect to recording time for litigation support, the Portfolio in 2013 provided all its DLSUs the guidelines for recording litigation support work and communicated the importance of a standardized data approach. Recent data shows that litigation support work is properly recorded.

With respect to the gap in certain legislative time-keeping, this anomaly was reported in one DLSU and has already been corrected. Further, proposed departmental changes to the legal services funding model will ensure that such data collection anomalies will no longer occur.

5.4.3 Training

The survey of legal counsel indicates that over two-thirds of respondents (68%) were either very satisfied (10%) or satisfied (58%) with the professional development currently offered. During interviews, it was noted that the diversity in the areas of law covered by the Portfolio makes it challenging to systematically offer relevant training activities. Some legal counsel interviewed as part of this evaluation indicated that the topics covered during the Portfolio’s learning days rarely coincided with their area of practice. In the case of regional offices, there are strict travel limitations that considerably reduce their access to these activities.

There was a general recognition among managers interviewed as part of this evaluation that, while the Department can meet a range of professional development needs, it would be beneficial to provide greater access to external learning activities. However, current budgetary constraints limit the ability of the Portfolio to expand the access to these types of learning activities.

Recommendation 3: It is recommended that the training needs of PSDI legal counsel be examined to determine current gaps and to explore innovative and cost-effective ways of offering/delivering this training.
Management Response:

Agreed.

PSDI is committed to fostering an environment that favours and facilitates continuous learning and professional development for all lawyers, including providing training opportunities offered outside of the Department.