PACP Committee Report
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The Honourable Shawn Murphy Dear Mr. Murphy: The Standing Committee on Public Accounts has requested a comprehensive Government response to its Fourth Report entitled “Chapter 5, Managing the Delivery of Legal Services to Government – Department of Justice Canada of the May 2007 Report of the Auditor General of Canada”, tabled in the House of Commons on February 25, 2009, which was previously tabled as the Seventeenth Report in the Second Session of the 39th Parliament. In accordance with Standing Order 109 of the House of Commons, and on behalf of the Government of Canada, I am pleased to respond to the report of the Standing Committee. The Government would like to thank the Committee for its diligent work on the review of Chapter 5 of the Auditor General of Canada’s May 2007 Report to the House of Commons. The Standing Committee’s Report and its recommendations are an important contribution to the observations and recommendations made by the Auditor General. Recommendation 1: The Department of Justice Canada provide the Public Accounts Committee with a detailed progress report by April 30, 2009 on its implementation of actions taken in response to the findings and recommendations of the Office of the Auditor General in its May 2007 Report, Managing the Delivery of Legal Services to Government. One of the Department of Justice’s priorities, as noted in its Report on Plans and Priorities 2008-2009, is to examine law practice management issues in order to ensure that Justice continues to be well positioned to meet the legal services needs of the Government. In order to effectively respond to the Auditor General’s recommendations, the Department of Justice has reallocated internal resources and has reviewed its management and operational structures dedicated to improving the practice of law in Justice. With these changes, the Department is in a good position and has made progress on implementing the recommendations of the Auditor General and to provide effective and efficient legal services to the Government of Canada. I was pleased to note the positive comments made by the Auditor General during her appearance before the Standing Committee on the progress the Department of Justice is making in responding to her recent audit. The Department of Justice is committed to implementing the Auditor General’s recommendations in a timely manner. In accordance with the Standing Committee’s first recommendation, the Department is pleased to provide herewith an update to the Justice Canada Action Plan previously provided to the Standing Committee on April 22, 2008. Recommendation 2: The Department of Justice Canada adopt a transparent, fair and competitive process for the selection of outside civil legal agents. The Department of Justice provides a range of legal advisory, litigation and legislative services to government departments and agencies. To put this into context, in 2007-2008, Department of Justice counsel worked on over 69,000 active legal files (of which more than half were litigation files), drafted 63 bills tabled in Parliament and close to 236 motions to amend bills, and provided legal advice to the government on 74 Private Members Bills. Generally, legal services are provided by Department of Justice counsel, but where appropriate, private sector law firms are retained as legal agents to assist in carrying out the mandate of the Minister of Justice and Attorney General of Canada. As noted in the Standing Committee Report, legal agents are used in approximately 1% of all new files handled by Justice each year. As indicated in the Committee’s second recommendation, the Government of Canada is committed to ensuring a transparent, fair and competitive process for the selection of outside counsel to act as legal agents. In fact, as noted in Chapter 5 of the Auditor General’s May 2007 Report, the Department of Justice has already taken a number of steps to renew the retention and management processes of legal agents. The Department has put in place a framework that supports open procurement practices for the recruitment, evaluation and selection of agents. In the fall of 2005, the Department of Justice launched an open process inviting private sector law firms and practitioners to register their interest in providing legal services to the Government of Canada. Between November 2008 and March 2009, the Department reaffirmed its commitment to the process and refreshed its invitation to law firms and law practitioners by publishing ads in 20 legal trade publications. Currently, there are over 450 law firms and law practitioners registered with Justice and new firms still register regularly. This process has now been formalized through the development and implementation of a departmental policy on contracting for legal services. In accordance with this policy, Department of Justice officials select suitable law firms or practitioners to perform legal services on specific files following an evaluation of their suitability in light of pre-established requirements. The assessment takes into account a number of considerations, including the composition and strength of the proposed legal team (including counsel experience and expertise); past performance and peer reviews; location of the firm in relation to clients and witnesses; the overall presentation and quality of information provided by law firms or law practitioners; conflict of interest; and the cost or hourly rate proposed. Upon completion of the evaluation process, Department of Justice officials recommend the appointment of the selected law firm or practitioner to the Minister of Justice and Attorney General of Canada for appointment. This process is in accordance with Section 4 of the Government Contracts Regulations. Recommendation 3: The Department of Justice Canada study ways to control the demand for legal services from client departments and provide the results of this study to the Public Accounts Committee by April 30, 2009. As noted by the Committee, the Department of Justice responds to the legal needs of departments and therefore does not control the volume of its incoming work. However, finding ways to control and manage the demand for its services, as recommended by the Standing Committee, has been and continues to be the subject of considerable attention in government. Managing the demand for legal services is a complex issue. It is a shared responsibility between Justice and all other government departments and agencies. Moreover, this demand is driven by a variety of factors over which the government has either little control or limited influence. These factors include societal trends such as an increased reliance on courts to resolve disputes; the broad application of the Charter of Rights and Freedoms by the judiciary; the increased number of tribunal and judicial recourse mechanisms to review government conduct and decisions; and the creation of new judicial court processes such as class actions. For example, the number of class action proceedings against the Crown increased from 35 in 2000 to 171 in 2008. Some notable class actions include Tobacco, Agent Orange, Hepatitis C and the Indian Residential Schools litigation. Settlement of this latter class action involved compensation payments to approximately 80,000 living former Indian Residential Schools’ students and a process for the resolution of abuse claims from approximately 12,000 individuals. Significant international events have also added to the demand for legal services in government. Emerging national and international security issues affecting our international trade and law enforcement capacity as well as the security of Canadians here and abroad (such as security certificates, identity management and information sharing pressures) have had a significant impact on legal requirements in government. Furthermore, in the great majority of government litigation cases the government is the defendant and therefore has little opportunity to control the demand for legal services as it must defend the application of the laws and regulations of Canada. In the limited circumstances where the Department of Justice can influence the demand for its services, it has launched initiatives in collaboration with other departments and agencies. For example, Justice has established joint funding, joint legal risk management and joint planning and priority-setting to help manage the demand for legal services. The Department of Justice agrees that more can be done to better support government in managing this demand. For this reason, it continues to develop processes and instruments aimed at reducing the potential for litigation and focusing on litigation prevention activities and the early resolution of claims against the Crown. The Department also continues to invest in information management systems to produce more robust information on workload and on the cost of legal services provided. As noted in the Department of Justice Action Plan, specific initiatives are underway to address these requirements, including the observations and recommendations of the Auditor General contained in Chapter 5. Recommendation 4: The Department of Justice Canada define specific, meaningful performance indicators and targets for those indicators in its next Report on Plans and Priorities. The Department of Justice remains committed to enhancing performance management practices, including the collection and use of key performance information for priority-setting and decision-making, as well as reporting on our performance and lessons learned. We are currently working with the Treasury Board Secretariat to meet the requirements related to the government-wide implementation of the Management, Resources and Results Structure Policy (MRRS). The MRRS policy supports the development of a common, government-wide approach to the collection, management and reporting of financial information and non-financial information on program objectives, performance and results. This initiative will guide the Department of Justice’s approach to performance measurement and reporting and will be reflected in the next Estimates cycle (i.e., through the 2009-2010 Report on Plans and Priorities and the corresponding Departmental Performance Report). As a result, it will respond to the recommendation of the Standing Committee. Recommendation 5: The Treasury Board Secretariat study the feasibility of reporting the Government of Canada’s total costs for legal services and provide the Public Accounts Committee with the results of this study by April 30, 2009. On behalf of the President of Treasury Board, I would also like to address Recommendation 5 of the Committee’s Report. The Treasury Board Secretariat has reviewed the existing reporting of the costs of legal services to Parliament and the possibility of the future use of the MRRS to further capture the costs of legal services. With respect to existing reporting, the Public Accounts of Canada 2007 (Volume II, Section 17 and Volume III, Section 3) and the Department of Justice Departmental Performance Report provide details on the majority of these costs. These costs may be summarized as follows:
As the Government continues to evolve the use of the MRRS and the costing principles supporting it, the Government anticipates that it will be able to further define how the costs of legal services are captured and reported, for example, through the Public Accounts of Canada and Departmental Performance Reports. Once again, on behalf of the Government of Canada, I would like to thank the Committee for its Report and for the opportunity to respond. Sincerely, The Honourable Rob Nicholson, P.C., Q.C., M.P., c.c.: The Honourable Vic Toews |