2. Overview of legislative services

2.1 Background

In Canada, the administration of justice is an area of shared jurisdiction between the federal government and the provinces and territories. The Canadian justice system is defined by the coexistence of two legal traditions: the civil law in Quebec, and the common law for the remaining provinces and territories, as well as by the usage of English and French as Canada’s two official languages.

In accordance with the Canadian constitution, Parliament adopts, amends or repeals laws that fall within its legislative authority. In turn, federal laws may grant authority to the federal government (Governor in Council), a minister or other assigned entities the power to adopt, amend or repeal regulations. This legislative process involves a wide range of stakeholders including, as applicable, central agencies, federal departments and agencies, Parliamentarians from both the House of Commons and the Senate, and stakeholders from civil society who have a direct stake in the legislative work being undertaken at the federal level.

Justice Canada is situated at the core of this process. While in some instances, the Department may act as the instructing or sponsoring department for legislation or regulations, it is the support that it provides for all legislative or regulatory initiatives that places the Department in a unique position. Put simply, no legislative or regulatory project can proceed without the direct support provided by Justice Canada. This support constitutes the central focus of this evaluation report.

The work undertaken by Justice Canada to support the legislative process is guided by a number of principles:

• Justice Canada supports the Minister of Justice in carrying out their duty to maintain a bilingual and bijural national legal framework, which reflects the two legal traditions and the two official languages of Canada;
• In accordance with the Department of Justice Act and the Canadian Bill of Rights, Justice Canada examines, on behalf of the Minister, government bills, regulations and other statutory instruments to ensure that they are not inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights;
• Counsel within the LSUs assigned to the various federal departments and agencies are expected to provide advice and support during the legislative process;
• Finally, the LSB is expected to undertake the advisory and drafting work required, as applicable, during the planning, development and publication of legislative initiatives.

While the evaluation focused on the latter point, namely the work undertaken by the LSB as part of the legislative process, it also considers the other dimensions listed above.

2.2 Nature of Work

2.2.1 Description of the Legislative Services Branch

Overall, the objective of the LSB is to support Justice Canada’s strategic outcomes of maintaining and strengthening the bilingual and bijural framework of the Canadian legal system; providing high-quality legal services in relation to legislative services to federal departments and agencies; and making federal law accessible to Canadians.

The LSB is part of the Public Law and Legislative Services Sector (PLLSS). Its structure has evolved over time, including during the period covered by the evaluation.^{Footnote 1} At the time of this report and as illustrated in Figure 1, the LSB consisted of three main groups.

Figure 1: Legislative Services Branch Structure - Text version

Figure 1 illustrates the organizational chart of the Legislative Services Branch. The Legislative Services Branch has three separate sections, which include the Legislation Section, Regulation Section, and Specialized Legislative Services Section.

The Regulations Section his comprised of three separate sections, which are the Headquarters Regulation Section, Transport Canada Regulations Section, and Health Canada Regulations Section.

The Specialized Legislative Services Section consists of two separate sections, which are the Advisory and Legislative Initiatives Section, and Revision, Bijuralism and Publishing Services Section.

As part of the Revision, Bijuralism and Publishing Services Section there are four teams, which include the Bijural Team, Jurilinguistic Team, Legistic Revision Team, and Consolidation and Legislative Publishing Team.

• Legislation Section: Legislative counsel assigned to the Legislation Section are responsible for the drafting of all federal government bills and for the drafting of government motions to amend any bill. Legislation Section counsel are not, however, responsible for the drafting of taxation legislation. That work is carried out by the Department of Finance.
• Regulations Sections: At the time of the evaluation, the LSB included three Regulations Sections. Reflecting the large volume of regulatory projects in which they are involved, Health Canada and Transport Canada each have their own Regulations Section. The Headquarters Regulations Section serves all other eligible departments, agencies or other regulatory bodies, unless this responsibility is assigned to another group, such as the Department of Finance for taxation-related regulations.
• Specialized Legislative Services Section (SLSS): This section provides a range of services that support the drafting of legislation and regulations and the development of legislation such as harmonisation bills:
  • Advisory and Legislative Initiatives Services (ALIS): This team offers expert services relating to statutory interpretation, including in respect of the development, interpretation and application of legislation and regulations. It also provides expert advice in the area of legislation and regulatory law to address complex, new, sensitive or cross-cutting legislative issues as well as those relating to comparative private law. This team also advises on and, in some cases, is the policy lead on some of Justice Canada’s legislative initiatives such as the Statutes Repeal Act, the Miscellaneous Statute Law Amendment Act and the Legislation Revision and Consolidation Act.
  • Revision, Bijuralism and Publishing Services (RBPS): This team provides bijural, legistic and jurilinguistic revisions of legislative texts and manages their consolidation and the publication of reference documents through four teams:
    • Bijural Team: This team revises draft legislative texts and drafting instructions with respect to bijuralism so that both linguistic versions respect the rules, principles, concepts and institutions of civil law and common law when it is necessary to apply them. Requests can also be made with respect to any other issue raised by the implementation of bijuralism in a legislative drafting context or in relation to the implementation of a legislative measure or policy.
    • Jurilinguistic Team: This team assists legislative counsel in achieving the highest possible quality of language in legislative texts in both official languages, which includes ensuring that the two official language versions are parallel in meaning. They produce jurilinguistic opinions to support the language choices of legislative counsel and offer jurilinguistic workshops for the professional development of legislative counsel.
    • Legistic Revision Team:  This team provides legistic analysis of legislative texts and revision services to legislative counsel. The team verifies logic, grammar, consistency, punctuation, format, citations and cross-references. The team also provides advice on amending clauses, transitional provisions, coming-into-force provisions and coordinating amendments.
    • Consolidation and Legislative Publishing Team: This team is responsible for the consolidation of Acts and regulations and the maintenance of the legislative database. In addition, the team produces a number of publications (e.g., Table of Public Statutes and Responsible Ministers, List of Repealed Statutes, Table of Private Acts). It is also responsible for the preparation of the Canada Gazette - Part III and the Annual Statutes.

In addition to the work already described, members of all groups within the LSB may be involved in complementary activities, such as the drafting of guides and manuals, or the provision of training.

2.2.2 Description of the Finance LSU

The Finance LSU is part of Justice Canada’s Central Agencies Portfolio and is composed of legal counsel who provide legal advice to officials from the Department of Finance. A number of these legal counsel are specifically providing support to the legislative process undertaken by the Department of Finance. As further described in the next subsections, the drafting of certain legislative and regulatory texts (particularly those relating to tax measures) is undertaken in-house, by employees of the Department of Finance (typically lawyer, accountants and economists), in direct collaboration with the Finance LSU. As such, these legislative or regulatory texts are co-developed by employees of the Department of Finance and members of the Finance LSU.

2.3 Overview of the Legislative Process

2.3.1 The Drafting of Legislation

From an operational perspective, the process involved in developing legislation is complex and fluid, due in part to the range of stakeholders involved and the latitude that the parliamentary system provides, allowing the government of the day to tailor its approach based on its vision of policy development. There is no fixed, standardized and linear process that frames the development of legislation, both because it would not suit all projects or circumstances for which legislation is needed, and because the federal government’s needs and requests require legislative counsel to be flexible. Instead, there are a number of key activities to be undertaken, culminating in the creation of legislation. While some legislative initiatives are limited in their scope and complexity (e.g., simple amendments to update an existing law), others raise far-reaching and controversial issues (e.g., legalization of cannabis).

For the purpose of this report, the focus is placed on those activities that involve the LSB, to various degrees, and that are identified in Figure 2.

Figure 2: Key Legislative Services Activities - Text version

Figure 2 provides an overview of the key legislative services activities in the legislative drafting process. The activities are:

• Policy development and instructions
• Drafting
• Revision
• Parliament
• Publication

Note: Advisory services are offered throughout the entire process.

As these different steps are undertaken, the federal government may, at any point in time, decide to withdraw the proposed bill. As such, the work of the LSB may end at the instructing stage, or at the drafting stage, without ever proceeding to a first tabling. Also, it is possible that the proposed bill will not be adopted by the House of Commons or the Senate. Consequently, the volume of legislation added to the Justice Laws Website only provides a partial picture of the legislative work undertaken by the LSB.

2.3.2 The Drafting of Regulations

The drafting of regulations includes many of the same steps as those described above. To avoid repetition, the following distinctive features are briefly summarized:

2.3.3 Specificities of the Legislative Work Undertaken by the Department of Finance

In accordance with a series of letters of designation, the Finance LSU counsel and the assigned employees of the Department of Finance are responsible for drafting legislation and regulations that relate to defined areas of taxation. Some of the unique features of this process include:

• Legislation and regulations submitted simultaneously: The Department of Finance is responsible for bills introduced in Parliament each year, and they typically represent large pieces of legislation (e.g., omnibus bill^{Footnote 5}following the budget). In this context, and because of the nature of taxation measures, legislative and regulatory measures are often introduced together, as they are intrinsically linked. The regulatory measures will be adopted through Parliament instead of the process normally used for other regulatory projects.
• Memo and drafting instructions submitted to the Minister: The policy work on new tax legislation is normally initiated through a memorandum to the Minister of Finance that provides detailed policy and legislative instructions. The Minister of Finance has delegated authority from Cabinet as it relates to tax matters, which makes it possible for the Finance LSU to proceed with the drafting of taxation measures without a prior decision from Cabinet as a whole.^{Footnote 6}
• Unique drafting process: As is the case at LSB, depending on the scope and complexity of the proposed measures, a series of drafting meetings are normally held with the Finance Canada client (Tax Policy Branch) and occasionally representatives of the Canada Revenue Agency. The drafting is fluid given that the client has access to Epic files at any time and can propose changes directly in the text. This collaborative approach allows for the prompt identification of potential issues and the swift preparation of notes seeking further instructions from the Minister of Finance.
• Specialization of legislative counsel: Tax legislation is highly complex. For that reason, most legislative counsel have a strong tax background (e.g., master’s degree in taxation, or similar designation) in addition to legislative drafting experience. Legislative counsel assist the Department of Finance officials as they draft legislative or regulatory text together in English in combined drafting sessions. The English draft is then sent to a dedicated translator assigned to Tax Policy for translation; and then both review the translation for consistency.
• Press releases instead of publications in the Canada Gazette: The Department of Finance regularly releases its regulatory or legislative proposals in the form of draft legislative proposals in order to obtain comments from stakeholders. Because of this practice, the pre-publication of a measure in the Canada Gazette is not always considered necessary and an exemption from pre-publication is regularly sought for regulatory tax initiatives.
• Internal review process more contained: As a result of the volume of legislation and regulations, the specialized nature of the work and the time constraints, in particular surrounding major economic policy announcements (e.g., the annual budget), the internal legislative review process is often more contained. Each legislative counsel is expected to advise on bijural, jurilinguistic and legistic issues. Bijural experts, jurilinguists and legistic revisors are consulted on an ad hoc basis depending on the needs and what the available timeframe allows. This is particularly the case for bijural experts and jurilinguists who tend to be consulted as required, instead of systematically reviewing all the legislative or regulatory texts being developed. Revision of draft legislation and regulation is in the vast majority of cases performed by legislative revisors in LSB. 

2.4 Human and Financial Resources

2.4.1 Human Resources

The total number of full-time equivalents (FTEs) assigned to the LSB has increased over the evaluation period. As shown in Figure 3, it went from 154 FTEs in 2017-18 to 212 FTEs in 2021-22 due to a series of approvals allowing for increases in FTEs to address demand for services.^{Footnote 7} The range of positions also reflects the various roles of the sections included in the LSB.

Text version

Figure 3: Number of LSB FTEs, FY 2017-18 to FY 2021-22

Fiscal Year	Full-Time Equivalents	Number of LSB Full-Time Equivalents
2017-18	Law Practitioner	93.9
	Economics and Social Sciences Services	35.2
	Administrative Services	13.7
	Law Management	10
	Executive	0
	Others	1
2018-19	Law Practitioner	106
	Economics and Social Sciences Services	32.7
	Administrative Services	18.1
	Law Management	9.1
	Executive	0
	Others	1
2019-20	Law Practitioner	113.6
	Economics and Social Sciences Services	31.4
	Administrative Services	21.2
	Law Management	9
	Executive	0.1
	Others	1.1
2020-21	Law Practitioner	126.7
	Economics and Social Sciences Services	38.1
	Administrative Services	22.7
	Law Management	12
	Executive	0.3
	Others	1.7
2021-22	Law Practitioner	131
	Economics and Social Sciences Services	45.6
	Administrative Services	22.2
	Law Management	11.9
	Executive	0.6
	Others	2

As for the Finance LSU, the total number of FTEs assigned to the legislative drafting process has also increased over the period covered by the evaluation (see Figure 4).

Text version

Figure 4: Number of Finance LSU FTEs, FY 2017-18 to FY 2021-22

Fiscal Year	Full-Time Equivalents	Number of Finance LSU FTEs
2017-18	Law Practitioners	1.6
	Law Management	0.2
2018-19	Law Practitioners	2
	Law Management	0.2
2019-20	Law Practitioners	3.4
	Law Management	0.2
2020-21	Law Practitioners	3.2
	Law Management	0.2
2021-22	Law Practitioners	4.1
	Law Management	0.2

2.4.2 Financial Resources

Table 1 includes the total expenditures of the LSB and the Finance LSU for its legislative work. The increase in expenditures reflects the trends in the number of FTEs assigned to these groups.