Legislative Services Branch Evaluation

2. The Legislative Services Branch

Under Canada’s federal system, the administration of justice is an area of shared jurisdiction between the federal government and the provinces and territories. The Department of Justice plays a critical role in fostering the development of a federal legislative framework to support the Minister of Justice in areas of federal legislative responsibility. The LSB plays a unique role within the Department of Justice, serving as the steward of the federal legislative corpus and contributing to the departmental strategic outcomes of: 1) a fair, relevant and accessible justice system that reflects Canadian values; and 2) a federal government that is supported by effective and responsive legal services. Footnote 5

2.1 Canada's Bilingual and Bijural Legal Tradition

A defining feature of the justice system in Canada is the coexistence of two legal traditions. While many countries are also governed by one or more systems of law, the combination of the fundamentally different civil and common law is rare Footnote 6 and Canada is the only jurisdiction where these “two legal traditions co-exist as the two fully fledged vibrant legal systems of a sizeable population”. Footnote 7 The bijural structure is inscribed in the Canadian constitutional structure whereby federal legislative intent must be expressed in light of both the civil law and the common law.

Bijuralism in Canada found its formal expression in the Quebec Act in 1774 and later by the distribution of powers under the Constitution Act (1867) which states that provincial legislatures have authority in matters relating to property and civil rights in the province. Footnote 8

Federal law, although relatively comprehensive, is not complete insofar as private law rules are concerned. For federal law to apply within a province or a territory, it must often call on provincial or territorial law, notably in matters relating to property and civil rights. Unless otherwise provided by law or unless the context excludes recourse to provincial or territorial private law, both the common law and the civil law coexist as authoritative sources of Canadian federal law. Footnote 9

Canada’s commitment to the development and maintenance of a bijural legislative framework is constituted under the Policy on Legislative Bijuralism. Footnote 10 Since 1999, this commitment is also formally stated in the Cabinet Directive on Law-Making:

That bills and regulations respect both the common law and civil law legal systems since both systems operate in Canada and federal laws apply throughout the country. When concepts pertaining to these legal systems are used, they must be expressed in both languages and in ways that fit into both systems. Footnote 11

While proposed legislation and regulations are drafted under these directives, it is also important to Canada’s bijural system that previously developed bills and regulations reflect both legal traditions.

Furthermore, Canada is bilingual, and the common law and civil law coexist in Canada in both official languages. Therefore, legislative counsel must prepare drafts in both French and English, ensuring that they are legally sound according to both legal systems. At times, legislative counsel must consider up to four legal audiences: French and English users of the civil law and French and English users of the common law. Footnote 12

Federal legislation in Canada is not only bilingual, but also bijural in the sense that it is applicable to persons, places and relations that are subject to the civil law in Quebec and to the common law in the rest of Canada. This wealth of possibility creates a difficult challenge for federal drafters, and for interpreters of federal legislation. Although Quebec is the only province with a civil law system, the French version of federal legislation is meant to operate in all the provinces. This makes it impossible simply to reserve the English version of legislation for application in the common law provinces and the French version for application in Quebec. Footnote 13

2.2 LSB Service Delivery Structure

The LSB is the main provider of legislative services to the federal government respecting bills and regulations. Footnote 14 Service delivery is centralized in the National Capital Region with legal services being provided by the Department of Justice through the Branch and its Departmental Regulations Sections. These sections were established to address the regulatory drafting needs of three departments: Health Canada, National Defence Canada, and Transport Canada. Footnote 15

The centralization of legislative services in Canada was established as recommended by the Report of the Royal Commission on Government Organization (the Glassco Commission) released in 1962. The objective of the Commission was to “report upon the organization and methods of operation of the departments and agencies of the Government of Canada and to recommend the changes therein which they consider would best promote efficiency, economy and improved service.” Footnote 16 Major changes were effected in the way public service was administered, including in the Department of Justice. Centralization of legislative services was recommended to improve efficiency and to better address Canada's unique bijural and bilingual needs, thereby developing a legislative system that better represents all Canadians. Footnote 17 Centralization also facilitated the establishment of the co-drafting process in 1978 in which French language and English language legislative counsel work as a team to simultaneously draft bills or regulations, eliminating the time previously required for translation and improving the quality of the French language drafts. Footnote 18

While this centralized approach best suits the unique needs of Canada’s bilingual and bijural system and is also utilized in other countries, some jurisdictions have adopted a non-centralized model. For example, the United States utilize two drafting agencies to maintain their legal drafting needs, and in the United Kingdom, the Government Legal Service includes 30 discrete cadres of lawyers who are assigned to various government bodies, each working independently and for different agencies. More similar to the Canadian model, the Australian Office of Parliamentary Counsel and the New Zealand Parliamentary Counsel Office are the organizations responsible for providing all legislative services to their respective federal governments.

The LSB is led by the Chief Legislative Counsel, a position level equivalent to that of Assistant Deputy Minister. The Chief Legislative Counsel reports directly to the Associate Deputy Minister and the Deputy Minister. In addition to managing the LSB, the Chief Legislative Counsel is responsible for ensuring that government bills and regulations are reviewed in light of the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights, on behalf of the Minister of Justice.

The Branch is comprised of the Office of the Chief Legislative Counsel, the Administrative Services Group and two legal groups: the Drafting and Advisory Services Group (DASG) and the Legislative Revision Services Group (LRSG).

The DASG provides legislative services as well as advisory services to federal government departments and agencies through one Headquarters Legislation Section, one Advisory and Development Services Section, and four Regulations Sections (Headquarters and three Departmental Regulations Sections). The LRSG complements the services offered by the DASG through four groups, the Bijural Revision Services Unit (Taxation and Comparative Law), the Legislative Bijuralism Team (Revision Initiatives), the Jurilinguistic Services Unit, and the Legislative Editing and Publishing Services Section. Figure 2.1 depicts the organization of the LSB graphically.

Figure 2.1 - Legislative Services Branch Organizational Chart

Figure 2.1-Legislative Services Branch Organizational Chart

Figure 2.1 - Text equivalent

The Legislative Services Branch (LSB) is headed by the Office of the Chief Legislative Counsel. The Chief Legislative Counsel is supported by a Special Advisor/Counsel and a Senior Assistant.

The LSB is divided into three (3) groups, all of which report directly to the Office of the Chief Legislative Counsel: the Administrative Services Group; the Drafting and Advisory Services Group (DASG) and the Legislative Revision Services Group (LRSG).

The Administrative Services Group is made up of: Management of Administrative Services; Management of Information; and Management of Information Technology.

The DASG is made up of: the Legislation Section; the Headquarters Regulation Section; the three (3) Departmental Regulation Sections: Health Canada, Transport Canada and National Defence Canada; and the Advisory and Development Services Section.

The LRSG is made up of: the Bijural Revision Services Unit (Taxation and Comparative Law); the Legislative Bijuralism Team (Revision Initiatives); the Jurilinguistic Services Unit; and the Legislative Editing and Publishing Services Section.

The LSB currently employs over 200 staff of whom approximately 55% are legislative counsel. The remaining staff consists of other legal counsel and staff such as revisors, jurilinguists, management and administration. LSB staff either work in the LSB headquarters or in one of the three Departmental Regulations Sections.

2.3 Responsibilities of the LSB

The primary responsibilities of the LSB are to draft government bills, draft or examine federal regulations, publish acts in the Canada Gazette and consolidated acts and regulations on the Justice Laws Website, and provide legal advice. LSB drafts and revises government bills and motions to amend, including government motions to amend Private Members’ bills. It also drafts, examines and revises proposed regulations and other statutory instruments. LSB drafts government bills and proposed regulations in both English and French and in conformity with the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and other related legislation. It delivers these services in the context of coexisting civil law and common law legal traditions with consideration of the interaction between federal law and the provincial and territorial law. This includes consideration of the relationship between these legal traditions and Aboriginal traditions, where applicable.

The LSB drafts amendments to bills once they are tabled before Parliament and as they move through the parliamentary process.

Canada’s bijuralism policy emerged in the 1990s Footnote 19, and Canada is a world pioneer in developing the concepts and instruments to harmonize civil law and common law. The LSB reviews and revises draft bills and regulations as well as existing statutes and regulations to harmonize them with the principles, concepts and institutions of the civil law of Quebec and the common law applicable elsewhere in Canada. It pays special attention to the vocabulary of each legal tradition, in both official languages. Revisions are made where appropriate. The Branch prepares harmonization bills for introduction in Parliament by the Minister of Justice. Footnote 20 It also makes harmonization recommendations to client departments for inclusion in their own legislation.

The Branch provides support and revision services to the Statute Revision Commission (SRC), which under the Legislation Revision and Consolidation Act, is responsible for revising the public general statutes of Canada, as part of the ongoing process of improving federal legislation.

All LSB legislation is drafted simultaneously in both official languages. Throughout this process, advice may be sought with respect to linguistic, bijural or legistic aspects of the drafts. As well, once a draft has been finalized, a threefold revision process is carried out to enhance its quality. The revision team includes LSB lawyers, editors and jurilinguists. The jurilinguistic revision ensures linguistic adequacy and the equivalence of both official versions of legislative texts. The bijural revision ensures that legislative texts that touch upon provincial private law are compatible with both the common law and civil law systems. Finally, the legistic review involves the consistent application of drafting standards across the whole legislative corpus. The revision process is a critical quality control measure. The LSB also provides revision services to the drafters of legislation in other departments (e.g., legistic and bijural revision services provided to the Department of Finance Canada).

The drafting process and activities described above are summarized in Figure 2.2. This figure also highlights the important role of the client department or agency in the process, specifically with respect to providing the drafting instructions and reviewing the legislative text after the completion of the revision process. Another key element of the drafting process is the support provided by the Departmental Legal Services Unit (DLSU) of the client department or agency. DLSUs have been established in most federal departments and agencies. They consist of legal counsel who are employees of the Department of Justice and are responsible for providing their clients with legal advice and assistance to facilitate their operations and to ensure that their policies, programs, and operations conform to the law. Footnote 21 DLSU counsel also play an important role in the legislative process, particularly in the early stages of policy development. In terms of the drafting process, DLSU counsel work in collaboration with legislative counsel to address substantive legal issues raised by clients or by legislative counsel. Working together with their DLSU counterparts, legislative counsel ensure that the drafted bills or regulations meet the client’s policy objectives. Footnote 22

Figure 2.2 - The Drafting Process Footnote 23

Figure 2.2-The Drafting Process

Figure 2.2 - Text equivalent

The process begins with instructions from the Client.

The instructions are sent to the DASG Legislation when asked to draft bill, provide legal advice and perform Section 4.1 Department of Justice Act review (English and French).

The instructions are sent to the DASG Regulation when asked to draft regulation, provide legal advice and perform Statutory Instruments Act examination (English and French).

The draft legislation/regulation is reviewed with the client.

The LRSG Revision Process starts with the Legistic Revision, followed by the Bijural Revision, Jurilinguistic Revision.

Following the Revision Process, the draft legislation or regulation is finalized with the client.

After being finalized by the client, the bills are finalized for tabling in Parliament.

After being finalized by the client, the regulations are “stamped”.

In addition, the Branch may be called upon to provide legal analyses and advice, which may be undertaken in collaboration with others in the Department. For example, it may advise clients on matters such as their options for legal instruments to address government priorities and policy goals. The LSB provides advisory services on legal, policy and language matters related to the drafting, enactment, operation and interpretation of legislative texts. This also includes matters related to the Statutory Instruments Act, the Interpretation Act, the Publication of Statutes Act, the Legislation Revision and Consolidation Act and the Statutes Repeal Act. It analyzes and advises on aspects of regulatory initiatives (e.g., harmonizing/incorporating international standards that may be relevant for regulation of some industries). From time to time, the Branch may also be called upon by federal litigators to provide information, opinions or advice on the interpretation of federal legislation. It monitors court decisions as these may affect future drafting, and it provides advice in respect of legislative and regulatory processes as well as parliamentary procedure.

The responsibilities of the Drafting and Advisory Services Group and the Legislative Revision Services Group are summarized below.

Drafting and Advisory Services Group

  • Drafting government bills;
  • Reviewing drafting instructions before they are included in the Memoranda to Cabinet;
  • Drafting, examining and revising proposed regulations and other statutory instruments;
  • Drafting amendments to bills once they are tabled before Parliament and as they move through the parliamentary process, including government motions to amend Private Members’ bills;
  • Conducting the Department of Justice Act or Statutory Instruments Act examination, as applicable;
  • Advising clients on matters such as their options for instrument choice to address government priorities and policy goals; and
  • Advising clients on legal, policy and language matters related to the drafting, enactment, operation and interpretation of legislative texts. This includes matters related to the Statutory Instruments Act, the
  • Interpretation Act, the Publication of Statutes Act, the Legislation Revision and Consolidation Act and the Statutes Repeal Act.

Legislative Revision Services Group

  • Provision of advice with respect to linguistic, bijural or legistic aspects, at any point in the preparation of a draft;
  • Legistic revision of completed drafts to ensure the consistent application of drafting standards across the whole legislative corpus;
  • Jurilinguistic revision of completed drafts to ensure linguistic adequacy and the equivalence of both official language versions of legislative texts;
  • Bijural revision of drafts to ensure that legislative texts that use concepts pertaining to provincial private law are compatible with both the common law and civil law systems, when appropriate;
  • Bijural revision of existing legislative texts to ensure that the concepts pertaining to provincial private law they used are, when appropriate, compatible with both the common law and civil law systems;
  • Presentation of harmonization bills; Footnote 24
  • Advice and training on issues related to comparative law, bijuralism and harmonization;
  • Official publication of statutes following royal assent and publication of related tables, as well as the update, consolidation and publication of an electronic version of federal statutes and regulations through the Justice Laws website; and
  • Preparation of regulations and other statutory instruments for publication in the Canada Gazette, Parts I and II, as applicable, which is published by Public Works and Government Services Canada.

In addition to drafting and publishing bills and regulations, the LSB is also responsible for the following activities:

  • Identifying legal risks early, assessing their potential effect, and identifying options/strategies to help clients to manage the risk;
  • Providing information, opinions or advice to federal litigators on the interpretation of federal legislation;
  • Developing and implementing policy related to the regulatory and legislative processes in conjunction with other central agencies, including the Privy Council Office (PCO), TBS and the Department of Finance;
  • Preparing and maintaining drafting guides and reference manuals to ensure consistency in the legal products;
  • Conducting outreach and communication to departments and agencies to ensure understanding of the legislative drafting process; and
  • Providing support to the SRC, which is part of the ongoing process to improve federal legislation.

Further, in the absence of a specialized degree program in drafting or revising legislative texts, the LSB delivers extensive internal training to its counsel and professional staff. Some training on interpretation and relevant substantive issues is also provided to clients and to provincial/territorial counterparts.

2.4 LSB Logic Model

A logic model is a systematic and visual way to illustrate the relationship between the planned activities of a legal service or program and its expected results. In other words, it is a depiction of how a legal service or program works and what it is trying to achieve. A basic logic model has the following key elements:

Activities
The processes, tools, events and actions that are part of the implementation of the legal service or program. The activities should lead to the intended results.
Outputs
The direct product of the identified activities.
Outcomes
The impacts of the legal service or program, which are the results/changes/benefits/consequences. They are usually presented in stages, as change is incremental over time: immediate outcomes should support and lead to the intermediate outcomes, and intermediate outcomes to long-term ones.

This section describes the theory behind the LSB and what is expected to happen as a result of the key activities. The evaluation findings in Sections 4 and 5 of the report explore whether the LSB’s activities have been implemented as planned, and whether expected outcomes are in fact being achieved.

2.4.1 Outputs

Outputs are within the direct control of the LSB.

Drafting, harmonization and support to the SRC outputs are expected to be as follows:

  • Drafting: draft bills, regulations, Orders-in-Council and motions to amend;
  • Harmonization: harmonization acts, regulations and proposals; and
  • SRC Support: revised statutes and regulations. Footnote 25

These outputs are expected to contribute to the general output of published legislation.

The outputs of the LSB’s legal advice activities are expected to include:

  • Analysis and advice, including options for instrument choice.

Infrastructure development activities result in the following outputs:

  • Training resources;
  • Knowledge management tools;
  • Consolidated laws on the Justice Laws website;
  • Canada Gazette, Part III and Annual Statutes of Canada;
  • Bijurilex.ca (a specialized in-house bijuralism website ); and
  • Outreach and communication events.

At the federal policy level, infrastructure development activities are expected to result in:

  • Policy guidance and directives.

2.4.2 Direct Outcomes

Direct outcomes are the intended impacts of the activities and outputs. Their achievement is beyond the direct control of the LSB. All of the activities undertaken by the Branch contribute to the achievement of the outcomes expected from the delivery of their service. Activities and outputs of the LSB are expected to lead to the following set of interrelated direct outcomes:

  • Legislation that responds to federal government policy directions: although the LSB plays a critical role in the preparation of legislation that responds to federal government policy directions, it should be noted that the making of legislation is not within LSB’s influence or control;
  • Accessible federal legislation: in particular, legislation that is clear and consistent in both official languages while respecting the civil law and common law when private law rules are called upon; is consistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights; and is widely available;
  • Enhanced awareness/understanding within the federal government of federal legislation, legislative principles, processes and options: through its service delivery, publications and outreach infrastructure development activities, LSB helps to enhance awareness and understanding primarily among its clients; and
  • Enhanced capacity (skills, tools, information) to deliver consistent legal and legislative services: ongoing capacity improvement contributes to the delivery of quality services and products.

Achievement of direct outcomes is expected to lead to a set of interrelated intermediate outcomes that include:

  • Federal legislation that respects the Constitution and other legal constraints;
  • Contribution to a bilingual and bijural federal legislative framework; and
  • Government departments and agencies are better able to manage their risks.

Overall, by achieving the direct and intermediate outcomes, the work of the LSB contributes to the Department of Justice’s two strategic outcomes: a fair, relevant and accessible justice system that reflects Canadian values Footnote 26, and a federal government supported by effective and responsive legal services. Footnote 27 Footnote 28

The activities and associated outcomes of the LSB are illustrated in the logic model below (Figure 2.3).

Figure 2.3 - Legislative Services Branch Logic Model

Figure 2.3 - Legislative Services Branch Logic Model

Figure 2.3 - Text equivalent

Departmental Objective: To provide high-quality legal services, by ensuring that legal advice is consistent, the rule of law is respected and that legal risks are mitigated and managed.

LSB Objective: To provide high-quality legal services in relation to legislation and to make federal law more accessible to Canadians.

These objectives are achieved through the following activities:

  • Drafting
  • Harmonization
  • Support to the Statute Review Commission (SRC)
  • Revision Processes
  • Legal Advice
  • Infrastructure Development

The output for drafting is:

  • Draft bills and regulations, Orders-in-Council, Motions/Amendments, Examinations

The output for harmonization is:

  • Harmonization Acts and Regulations, Harmonization Proposals

The output for support to SCR is:

  • Revised Statutes and Regulations

The collective output for the above three activities is:

  • Published legislation

The outputs for legal advice are:

  • Analyses and advice
  • Options on legal instruments

The outputs for infrastructure development are:

  • Training, knowledge management, publishing, communication
    • Training resources, knowledge management tools, consolidated laws on website, Bijurilex.ca, Communication products
  • Legislative drafting policy development
    • Policy guidance and directives

Collectively, these outputs contribute to the following direct outcomes:

  • Legislation that responds to federal government policy directions
  • Accessible federal legislation
  • Enhanced awareness/understanding within the federal government of federal legislation, legislative principles, processes and options
  • Enhanced capacity (skills, tools, information) to deliver consistent legal and legislative services.

Legislation that responds to federal government policy directions, Enhanced awareness/understanding within the federal government of federal legislation, legislative principles, processes and options and Enhanced capacity (skills, tools, information) to deliver consistent legal and legislative services all contribute to making federal legislation accessible.

Collectively, the direct outcomes lead to the following intermediate outcomes:

  • Federal legislation that respects the Constitution and other legal constraints
  • Contribution to a bilingual and bijural federal legislative framework
  • Government departments and agencies better able to manage their legal risks

Collectively, these intermediate outcomes support the following ultimate outcomes:

  • Contribution to a fair, relevant and accessible justice system that reflects Canadian values
  • Contribution to a federal government that is supported by effective and responsive legal services.
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