Executive summary

Introduction

The Evaluation of Legislative Services was part of the Department of Justice Canada (Justice Canada)’s 2021-22 to 2025-26 Integrated Audit and Evaluation Plan, and was conducted in accordance with the Treasury Board’s Policy on Results (2016). The evaluation examined the continued relevance, effectiveness, and efficiency of legislative services, and focused on activities provided through the Legislative Services Branch (LSB), as well as the legislative work undertaken by the Finance Legal Services Unit (LSU) in support of the Department of Finance.

Program Description

In collaboration with different stakeholders, the LSB and the Finance LSU support the drafting of federal legislation and regulations. This work covers the key milestones of legislative drafting, including the development of instructions, the drafting of legislative text, the revision of that text, and (when adopted) its publication. The range of activities undertaken as part of legislative services includes advisory, drafting, and revision services (i.e., bijural, legistic and jurilinguistic revisions), as well as consolidation and legislative publishing.

In the specific case of the Finance LSU, this work supports the legislative drafting process undertaken internally by the Department of Finance where legal counsel from the Finance LSU collaborate with employees of the Department of Finance to develop legislation and regulations relating to defined areas of taxation.

Findings

Relevance

Offering centralized expertise in legislative drafting has been a critical component of the overall support that Justice Canada provides to the federal government, which promotes quality and consistency in the drafting of federal legislation and regulations. The provision of these services is embedded in the mandate of Justice Canada to provide high-quality legal services.

During the period covered by the evaluation, the demand for legislative services increased in volume as well as in risk and complexity, particularly as a result of the measures adopted by the federal government in response to the COVID-19 pandemic. Other complex initiatives include, but are not limited to, the reconciliation process with Indigenous peoples, the war in Ukraine, and the legalization of cannabis.

A particularly challenging aspect of legislative drafting comes from the demand that this work be completed within shorter timeframes. While this trend precedes the period covered by the evaluation (it was noted in the 2013 Evaluation of the Legislative Services Branch), it was further compounded by the urgency associated with many of the measures adopted in response to the COVID-19 pandemic. The evaluation found no indication that this trend will be any different in a post-pandemic environment.

Design and Delivery

Overall, the design and delivery structure used by the LSB to offer its services has proven to be adaptable, and it continues to meet the needs of the federal government. Also, the division of roles and responsibilities among stakeholders and the LSB and Finance LSU were found to be well established. However, evaluation findings point to a certain degree of tension that occurs at times between the need of the federal government to complete policy development and legislative drafting as soon as feasibly possible, and the commitment of the LSB to implement a thorough legislative drafting process that upholds high standards of quality and rigour. This challenge can be further complicated by other factors, including having to work with partial drafting instructions, having to produce multiple analysis and options, completing some drafting steps simultaneously rather than sequentially, or having limited opportunity to consult.

To help adapt its service delivery approach and respond to the demands placed on them, the LSB and the Finance LSU have been using coordination meetings with central agencies and other stakeholders as applicable, prioritization tools and processes, multi-teams assigned to larger or more complex projects, and an adapted revision process when needed. While these and other similar activities and tools have proven helpful, the long-term sustainability of legislative services requires more comprehensive adaptations to further align the design and delivery structure of legislative services with the requirements and expectations of the federal government.

The capacity of effectively delivering services also rests on adequate levels of human resources. During the evaluation period, additional staff members were added to the LSB to help address the increasing volume of work. While helpful, the impact of these measures is not felt immediately, as the specialized nature of legislative services is such that any new staff person typically requires extended on-the-job training before becoming fully operational. Evaluation findings also point to the need to further promote, where feasible, the use of paralegals to support portions of the drafting process. Finally, LSB members reported being well supported, including through mentoring and training, but the LSB has had limited capacity to fully maintain and update all applicable guidelines and practice manuals.

Effectiveness and Efficiency

The LSB and Finance LSU have a long history of providing quality legislative and regulatory drafting services, and evaluation findings confirm that sponsoring departments and agencies, and LSUs continue to report high levels of satisfaction. This covers the usefulness of the services provided, their timeliness, their quality, and the accessibility and responsiveness of those providing these services.

In addition to drafting specific legislation or regulations, the LSB has also successfully supported the processes related to the Statutes Repeal Act, the Miscellaneous Statute Law Amendment Act, and the harmonization of federal law with the civil law of Quebec and the common law of other provinces and territories.

The majority of LSB members echo these sentiments, as they consider themselves in a position to deliver high-quality work. However, they did express concerns about the negative impact that comes from having, at times, to face a combination of tight deadlines and limited resources, or having to work with partial or incomplete drafting instructions, which leads to a more tentative and incremental approach to legislative drafting.

While laws and regulations tend to be highly technical documents, the LSB has been pursuing efforts to simplify and enhance the clarity of the language used during the drafting process, by incorporating more lay terms and, as applicable, using wording that better reflects Indigenous values and realities. The clarity of legislative text is also supported by the longstanding practice of the LSB to have both English and French versions of proposed bills and regulations drafted simultaneously, with bijuralism considerations in mind to reflect Canada’s two legal traditions.

In terms of accessibility, all consolidated versions of federal legislation and regulations are available in both official languages on the Justice Laws Website, which impacts millions of individuals every year. This website is perceived as reliable, user-friendly, and efficient. The evaluation provided an opportunity to identify further refinements that could be considered moving forward.

Ultimately, the LSB and the Finance LSU have successfully established strong partnerships with sponsoring departments and agencies, and LSUs. This work is seen as client-centric, and is focused on solutions that can enable the federal government to proceed with its legislative initiatives. In this context, the goal is to ensure that these achievements remain sustainable in the long term.

Recommendation

Based on the evaluation findings described in this report, the evaluation offers the following recommendation:

The Legislative Services Branch, in consultation with appropriate parties, should adapt the design and delivery structure of legislative services to further align these services with the requirements associated with the policy development and drafting of federal legislation and regulations. In addressing this recommendation, the Legislative Services Branch should consider human resource requirements, planning and coordination of legislative activities, training, and adaptations of services based on the nature of legislative projects.