Public Safety and Anti-terrorism (PSAT) Initiative,
Summative Evaluation

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Executive Summary

1. Introduction

In response to the September 11^th terrorist attacks on the United States, the Canadian government announced the Public Safety and Anti-Terrorism (PSAT) Initiative to support the government's commitment to fight terrorism and address related national security and public safety concerns. The announcement of the Initiative was preceded by the development and passage of the Anti-terrorism Act (ATA). The ATA and the Public Safety Act 2002 (PSA) are cornerstones of Canada's response to the threat of terrorism. The PSAT Initiative supports the implementation of these two key pieces of legislation and provides resources so that the Department of Justice can respond to the increase in demand for its legal services to support the national security legislative framework. The Department of Justice plays an important role in this government-wide priority through the development and implementation of legislation, and through related activities both domestically and abroad.

This summative evaluation assesses the relevance, fulfilment of objectives, and effectiveness of the Department of Justice component of PSAT. It builds upon the 2005 formative evaluation, which focused on the issues of design, effectiveness, and efficiency. The Department is conducting the evaluation to fulfill Treasury Board (TB) requirements.

The evaluation included interviews with 44 key contacts representing relevant sectors of the Department and with 14 key contacts from other departments and agencies involved with the PSAT Initiative. A document and data review were also conducted.

The evaluation focuses exclusively on the Department's role in the PSAT Initiative from 2001-2006. During this period, the Federal Prosecution Service (FPS) was the prosecution arm of the Department. The FPS was reconstituted as the Public Prosecution Service of Canada (PPSC) in December 2006 and continues the federal prosecution function, but as an independent entity that is no longer part of the Department of Justice. The FPS is referred to as such throughout this report. Any findings applicable to the FPS should be understood as referring, in the current environment, to the PPSC.

2. Description of the Department of Justice component of the PSAT Initiative

The Department's role in the PSAT Initiative is similar to the ongoing support it has always provided, namely legislative support and policy development, legal advice and assistance, and prosecution and civil litigation. In practical terms, this means that its primary purpose is to address an increased demand for services resulting from the sudden and intense demands placed on the Department in the period immediately following the September 2001 terrorist attacks, as well as the anticipated increase in the level of activity in the areas of anti-terrorism and public safety.

Six core activities under the PSAT Initiative reflect the legal advisor role the Department plays in the Initiative: policy development and analysis; legal advice and assistance; international advice and assistance; outreach, training, and education; civil litigation and prosecution; and provision of legal aid funding.

The Department of Justice has the following five objectives for its component of the PSAT Initiative:

• to engage with other departmental representatives, client organizations, and other jurisdictions in relevant public safety and anti-terrorism activities;
• to assist departmental representatives, client organizations and other jurisdictions in developing more effective laws, regulations and policies;
• to increase knowledge and understanding among key participants in the justice system and others of laws and regulations related to public safety and anti-terrorism;
• to improve the litigation and/or prosecution of cases where terrorism or other threats to public safety and anti-terrorism are involved or where disclosure of sensitive information is an issue;
• to provide legal aid to the economically disadvantaged accused affected by public safety and anti-terrorism initiatives.[1]

2.1. Funding

The federal government allocated 1% ($78 million) of its $7.7 billion PSAT budget to the Department of Justice. Most of these funds are dedicated to the provision of PSAT-related legal services. In addition, $2.5 million per year in contribution funding is made available to the provinces and territories or their legal aid delivery entities to ensure that those economically disadvantaged accused affected by the PSAT Initiative have access to legal aid.

Table 1 shows the funding allocation between 2002-2003 and 2006-2007. The Department's PSAT funding is a special purpose allotment, which means that funds cannot be internally reallocated for other purposes without TB approval. The Department contributed some of the PSAT funding to the government reallocation exercise so when demand for PSAT services increased in 2003-2004 and 2005-2006, there was a deficit in funding.

Table 1: Fund allocation

Within Vote 1 – Salary and O&M

Year	TB approved funding *	Reductions (Government reallocation exercise)	Funds available	Actual spending	Surplus/ deficit
2002-2003	$8.1M	$0.0M	$8.1M	$6.5M	$1.6M
2003-2004	$10.1M	$3.8M	$6.3M	$7.1M	($0.7M)
2004-2005	$11.6M	$2.1M	$9.5M	$9.5M	$0.0M
2005-2006	$11.6M	$2.2M	$9.4M	$10.4M	($1.0M)
2006-2007	$11.6M	$2.4M	$9.2M

Within Vote 5 – Grants and Contributions for Legal Aid

Year	TB approved funding *	Reductions (Government reallocation exercise)	Funds available	Actual spending	Surplus/ deficit
2002-2003	$2.5M	$0.0M	$2.5M	$0.0M	$2.5M
2003-2004	$2.5M	$2.5M	$0.0M	$0.0M	$0.0M
2004-2005	$2.5M	$2.2M	$0.3M	$0.3M	$0.0M
2005-2006	$2.5M	$2.2M	$0.3M	$0.3M	$0.0M
2006-2007	$2.5M	$0.5M	$2.0M

Note: Figures are rounded.

* TB approved funding excluding accommodation (13%) and employee benefits plan costs (20%)

** Figures for 2006-2007 are based on allocated resources.

Source: Department of Justice internal reports.

3. Evaluation findings

3.1. Relevance

The objectives of the PSAT Initiative address national security concerns that are of continuing importance to the federal government: protecting Canadians from terrorist attacks; keeping borders open; identifying, prosecuting, and punishing terrorists; and contributing to international efforts to fight terrorism. The integrated, interdepartmental approach of the Initiative also remains a commitment of the government. Furthermore, intelligence threat assessments show that terrorism is considered to be a major threat to Canada, and that the tactics of terrorist groups are becoming more deadly and difficult to detect. All of these factors point to an ongoing level of need for the PSAT Initiative.

The Department's PSAT activities support the government's objectives under the Initiative. There is a strong demand for the Department's PSAT-related activities, demonstrating the importance of the Department's contribution to the Initiative. There is also an expectation that the demand for these services will increase in the coming years. Ensuring public safety, in the face of terrorist or other threats, is a cornerstone of Canadian government policy, and is now on the agenda of most international gatherings. As the government continues to engage in new national security initiatives and also to sign international agreements related to terrorism and national security concerns, the legal advice and support required expands accordingly, and this growth will likely continue unabated. The Department also supports law enforcement agencies by providing advice to border agencies and investigators, and the DOJ (pre-PPSC) handled prosecutions to suspected terrorists.

3.2. Success in meeting objectives

The Department of Justice is conducting all of its six core activities under the PSAT Initiative and has made progress in meeting the objectives it has outlined for its role in PSAT. The Department has been particularly successful in engaging other Departments, client organizations, and other jurisdictions in PSAT-related matters. Departmental clients expressed a high degree of satisfaction with the work that has been done in the development of laws, regulations, and policies that support the general framework of the ATA.

Measuring the impacts of the activities conducted under the Initiative remains a challenge for the Department. Activities such as providing legal advice and drafting legislation, for example, do not lend themselves to having easily-measured outcomes. The following outlines the Department's success in meeting each of its intended outcomes under PSAT:

• Engaging with others in relevant public safety and anti-terrorism initiatives. The evaluation found that the Department serves an important function in linking government departments and in coordinating national security activities. This coordination largely occurs on an informal basis. Undoubtedly, the Initiative could benefit from more forums that make meetings and information sharing, both within Justice and among other departments and agencies, a more regular feature of the Initiative.

• Assisting in the development of more effective laws, regulations, and policies. Both the formative and summative evaluations found that the Department's work on the ATA and the PSA was valued by the other government departments involved with these pieces of legislation. Although the legislation has been the subject of legal challenges, these challenges are to be expected in such an uncharted area of the law. The ATA has created new criminal offences, which Canada has been able to use to prosecute people for activities that might previously not have been considered illegal, as well as new tools to assist investigators in detecting terrorists and terrorist activities. The process of reviewing the ATA was underway at the time of the evaluation's data collection phase. The CLPS will coordinate the government response to recommendations from the parliamentary committees as required.

• The Department continues to assist in the development of laws, regulations, and policies that support the national security and anti-terrorism legislative framework, including that of the ATA. This assistance primarily involves providing advice to client departments, and the evaluation found general satisfaction with the work that has been done. The Department has developed expertise in drafting legislation and policies pertaining to terrorism. As a result, other government departments and agencies look to the Department of Justice to coordinate the government's national security policy, as the Department is considered to have the most comprehensive understanding of the various departments' activities. In addition, that expertise causes other countries to look to Canada for advice and assistance in drafting their own anti-terrorism laws. The Department also serves a vital role by reviewing all legislation, regulations, and policies so that fundamental human rights are not compromised when national security concerns arise.

• Increasing the knowledge and understanding of laws and regulations related to public safety and anti-terrorism. The evaluation found that this is an objective that appears to have been less of a priority after the ATA was enacted. Shortly after the ATA was enacted, the Department provided a number of training sessions on the legislation within the Department, as well as to other departments and agencies at the federal and provincial levels, and these were well received. Since then, the Department now provides training when it is requested, on a more ad hoc basis, and it incorporates PSAT-related information into training on other issues. CLPS counsel have made presentations at conferences, universities, and other forums to raise awareness of the ATA. The Department has also set up a website on the Parliamentary Review of the ATA. In 2005, there were 15, 060 unique visitors to the site and 19, 558 unique visitors in 2006.

• Improving the litigation and/or prosecution of terrorism-related cases. The ATA provisions have not been used extensively, but through interviews, the evaluation found that the provisions, and also the Department’s contribution to their implementation, have improved Canada’s response to investigations, litigation and/or the prosecution of terrorism cases. In particular, the Department has contributed to the potential use of intelligence in criminal proceedings by managing the notice provisions of section 38 of the Canada Evidence Act. The evaluation found that there are concerns about the handling of the large volumes of records associated with section 38 notices.

  The Department has also developed an interdepartmentally agreed upon protocol for the management of Canadian evidence and testimony in foreign proceedings involving national security matters.

  Some possible suggestions to improve investigations, litigation and/or prosecutions include assigning front-line prosecutors with top secret clearances to provide advice at the early stages of potential terrorism investigations, as well as developing a dedicated team of anti-terrorism prosecutors, as this legal area is very complex, covers new legal ground and therefore requires careful consideration.

• Improving international efforts in the fight against terrorism. Since the ATA was enacted, the Department has been engaged in a number of activities that support Canada's role as an international partner in anti-terrorism efforts. These include: participating in international organizations; negotiating and providing legal advice on international instruments; handling extradition and mutual legal assistance requests; and providing advice and assistance to foreign countries on developing their own anti-terrorism legislation. Working with the international community in these areas is critical to Canada's anti-terrorism efforts, as acts of terrorism are a transnational crime. Each country has its own approach to the issue, based on its own legal and political culture. It is, therefore, important for Canada to understand other countries' systems, as well as for them to understand Canada's system. The Department serves an important role in providing this explanation, which improves Canada's ability to cooperate with other countries. It also ensures that any international commitments made by Canada meet Canadian and international legal standards.

  Suggestions for how the Department could better assist these international efforts, identified by interviewees, included expanding the number of liaison counsel who are stationed in foreign capitals, as well as providing additional resources so that the Department can participate in more capacity-building efforts and also attend international conferences. These activities help the Department to build a network with its international counterparts and to improve international cooperation.

• Providing legal aid to economically-disadvantaged accused affected by public safety and anti-terrorism initiatives. The Department provides contribution funding to the provinces and territories or their legal aid delivery entities to ensure that those economically disadvantaged accused affected by the PSAT Initiative have access to legal aid. While the current number of contribution agreements is not large, the significance of this funding provision cannot be underestimated. Mounting a defense to terrorism charges will be costly, and the provision of legal aid funding helps to ensure access to justice. At the same time, the funding ensures that there will be no stays of prosecutions because of lack of defence counsel. To date, there has not been a known instance of an unrepresented accused in a terrorism-related case.

4. Effectiveness

Resources.

For the summative evaluation, the RMAF defines effectiveness as, in part, “assessing the appropriateness of the level of resources allocated to the department.” Resources are an issue for some of the Department's sections, and for the last fiscal year (2005-06), the Department of Justice reports a $1.0 million deficit for its PSAT activities. If Department of Justice sections do not have sufficient funds available to them, there are two possible impacts on the services they provide to their clients: services are provided only in a reactive manner in response to national security issues and departmental officials can only provide the minimum required level of services to their clients.

It was noted during the course of the evaluation that the Department has a limited ability to demonstrate the sufficiency of its PSAT resources. The Department currently tracks funds by business line and this does not align with the Treasury Board Secretariat's requirement that funds be tracked by program or initiative. Some of sections in the Department currently use iCase, which is an information management system that provides timekeeping, billing, case management, document management and reporting functions. The data from this system does not provide a clear overall picture of PSAT-related resource usage; use of this system and the data entered into it varies among departmental sections. As a result, some sections can only provide estimates of their PSAT-related resource use.

Management.

The formative evaluation recommended that the PSAT Steering Committee become more involved in coordinating activities under the Initiative. The summative evaluation found that the Committee has not yet fully expanded its role beyond that of resource allocation.

Recommendation 1

The Committee should further review its role and mandate so the full implications of the PSAT work of the Department are fully understood and appropriately funded.

Management Response

Agreed. While the Committee recognizes that each sector needs to continue to be responsible for its own PSAT-related activities, it is important for the Committee to make resource allocation decisions, monitor the implementation of the PSAT activities, and facilitate the reporting of the overall impact of PSAT funding.  The PSAT Steering Committee will review its mandate, as outlined in the Committee's Terms of Reference, during a future meeting

The formative evaluation also identified a need for an effective department-wide financial and performance measurement reporting system(s) for the Department's component of the PSAT Initiative. Since then, the Department has taken positive steps towards improving the reporting of the results of its PSAT activities. For example, the Department, through its Corporate Services, has taken a number of steps towards improving the reporting of the results of the Department's PSAT activities, in close collaboration with the TB Secretariat. Furthermore, the Department engaged a consultant to review its performance measurement strategy, to consult with key contacts in the Department, and to identify key performance indicators for each sector involved with the Initiative. As this project was conducted fairly recently, its results were not available for consideration in the evaluation.

Recommendation 2

The Department should continue to implement the positive measures it has already undertaken to improve the measurement and reporting of results for its PSAT activities.

Management Response

Agreed. In October 2006, the Department hired a contractor to consult with Departmental employees from each sector involved with PSAT.  The goal of the exercise was to improve the collection and reporting of performance measurement data to assist in demonstrating the impact of the Department's contribution to the PSAT Initiative.  The Department will build on this by implementing the consultant's recommendations.

The Department has undertaken a substantial amount of work as part of its PSAT responsibilities, and there is a strong belief that this work will expand and therefore require more resources. For that reason, it is imperative that a financial management and performance measurement reporting system can demonstrate the impact of both current and future demands on the Department under the Initiative.

Recommendation 3

The Department should continue to implement measures to improve its financial management and reporting systems to help demonstrate the impact of both current and future demands on the Department under the Initiative.

Management Response

Agreed. The Committee will work with Financial Services to determine how it could facilitate the work of managers who need to enter PSAT-related information in the Integrated Financial and Material System (IFMS), taking into account other systems used such as iCase, the Salary Management System and the Timekeeping System.

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[1] Department of Justice (2006). Results-based Management and Accountability Framework for the Public Safety and Anti-Terrorism Initiative.

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