Legal Risk Management in the Department of Justice
APPENDIX A
Accountability Framework and Governance Structure
Accountability Framework and Governance Structure for Legal Risk Management
Considerations:
- Legal Risk Management (LRM) is a priority of the Department of Justice.
- LRM is the process of making and carrying out decisions that reduce the frequency and severity of legal problems that prejudice the government's ability to meet its objectives successfully. Its main components are the detection, avoidance, mitigation and management of legal risks. LRM is linked to Integrated Risk Management, which is a component of the TBS Management Accountability Framework.
- LRM is practiced by client departments in partnership with Justice. It is one of the principal processes used by the Department to provide the highest quality legal service to the government of Canada and its institutions.
- LRM is also the responsibility of Justice itself, with respect to the legal risks of its own policies and legislation.
- LRM includes: scanning (risk identification), risk assessment, information sharing, management of high impact legal risks, contingency planning, informing and engaging senior officials and Ministers (individually and collectively) on key LRM issues, identification and analysis of government-wide trends, instrument choice, dispute resolution, understanding of roles and responsibilities, case management and tracking techniques (e.g. I-Case).
- It is the responsibility of all employees and managers across the Department of Justice to know and apply LRM principles and methods appropriate to their particular positions and areas of responsibility.
- In addition, certain individuals or units have responsibility to provide functional direction and to coordinate the activities of others as they carry out their LRM duties.
- An accountability framework for a devolved system for LRM requires that senior managers in the Department ensure that responsibility and accountability cascades down within their areas of management.
Accountability Framework
Roles & Responsibilities
Deputy Minister of Justice
- has overall responsibility for ensuring effective Departmental management, including LRM
Expected Performance
- PMP commitments and PREA objectives appropriately reflect LRM as a Departmental priority
Associate Deputy Minister
- has overall responsibility for leading LRM in Justice
- chairs Justice Steering Committee to provide on-going direction in respect of LRM
- senior point of contact with TBS for LRM including with respect to linkages to integrated risk management
Expected Performance
- PMP commitments and PREA objectives appropriately reflect responsibility for practicing and promoting LRM
- ensures Ministers are informed and engaged (individually and collectively) on key LRM issues
- chairs the LRM Steering Committee
- works with TBS to ensure LRM is supported by TBS and is linked with integrated risk management
- provides annual report on LRM to TBS
- provides regular updates to DM Team on corporate LRM activities and priorities
- leads and carries out audit function for management of LRM including through periodic reviews
Portfolio Heads
- have primary responsibility for development, management and operation of LRM within their portfolios consistent with Departmental standards and objectives
- have primary responsibility for assisting clients within their portfolios to implement an LRM regime
- ensure that portfolio lawyers have the necessary training, knowledge, tools, ability and commitment to fully carry out LRM responsibilities within the portfolio
Expected Performance
- PMP commitments and PREA objectives appropriately reflect responsibilities for practicing and promoting LRM
- develop operational plans for the implementation and management of LRM including how to support, and deliver LRM services to, clients (plan should propose suitable goals, monitoring & reporting requirements)
- ensure that responsibility for LRM cascades down within portfolios through DLSU's
- assist clients to implement LRM principles and practices
- LRM principles & methods are applied to portfolio legal risks including, for example, ensuring that:
- principles governing instrument choice are applied;
- high impact cases are managed appropriately;
- contingency plans appropriate to the level of risk are developed;
- high impact trends and cases are reported to DM Team; and,
- information is properly shared on horizontal issues and that others having functional or coordinating roles are properly involved
- regular periodic reporting on performance of LRM to DM & Associates
- prepare operational plans (which are sent to LRM Steering Committee)
ADAG, Civil Litigation
- as functional Departmental leader on civil litigation, has primary responsibility for the development and management of LRM on multi-client civil litigation matters
- as functional Departmental leader on civil litigation, ensures that LRM principles & methods are applied to manage high-impact multi-client litigation
- as a functional Departmental leader on civil litigation, ensures that supra-portfolio and supra-regional LRM principles & methods are developed and appropriately implemented
- As Chair of National Litigation Committee ensures that LRM is integrated into the operation and decisions of that Committee
Expected Performance
- PMP commitments and PREA objectives appropriately reflect responsibilities for practicing and promoting LRM
- develop operational plans for the implementation and management of LRM for multi-client litigation
- LRM principles are appropriately considered in particular for high risk cases (e.g. contingency planning, etc.,) during Litigation Committee proceedings
- LRM principles & methods are applied to horizontal litigation risks including, for example, ensuring that:
- high impact multi-client cases are managed appropriately including by identifying an appropriate portfolio lead (including at times the ADAG Civil Litigation);
- contingency plans appropriate to the level of risk are developed;
- high impact trends and cases are reported to DM Team; and,
- information properly is shared on horizontal issues and that others having functional or coordinating roles are properly involved
- regular periodic reporting on performance of LRM to DM & Associates
- prepare operational plans (which are sent to LRM Steering) Committee
ADAG, FPS
- has primary responsibility for the development and management of LRM for federal prosecutions
- as a Departmental leader for FPS, ensures that LRM principles & methods are applied to manage high-impact cases
- as a functional manager and Departmental leader for FPS, ensures that LRM principles & methods are appropriately implemented by prosecutors
- responsible for practicing and promoting LRM with respect to Justice (as opposed to client) legal risks in the criminal area
Expected Performance
- PMP commitments and PREA objectives appropriately reflect LRM as a Departmental priority
- develop operational plans for the implementation and management of LRM for prosecutions
- LRM principles & methods are applied to prosecution related legal risks including, for example, ensuring that:
- high impact prosecutions are managed appropriately;
- contingency plans appropriate to the level of risk are developed;
- high impact trends and cases are reported to DM Team;
- the management of horizontal legal risks in relation to prosecutions, including regulatory prosecutions is coordinated across portfolios and,
- information is properly shared on horizontal issues and that others having functional or coordinating roles are properly involved
- regular periodic reporting on performance of LRM to DM & Associates
- prepare operational plans (which are sent to LRM Steering Committee)
Senior Regional Directors
- ensure that LRM principles and methods are appropriately implemented in their regions
- ensure that their region supports Portfolio Heads in the identification, assessment and management of legal risks affecting portfolio clients
- ensure that their region supports the ADAG Civil Litigation in the identification, assessment and management of multi-client litigation risks
- ensure that their region supports the ADAG FPS in the identification, assessment and management of prosecution related legal risks
Expected Performance
- PMP commitments and PREA objectives appropriately reflect responsibilities for practicing and promoting LRM
- develop operational plans for the implementation and management of LRM in the region
- ensure that responsibility for LRM cascades down within regions
- LRM principles & methods are applied to legal risks in regions including, for example, ensuring that:
- high impact cases are identified and reported (e.g., ensuring that protocols for completing the reporting of legal risks in Caseview/I-case are followed);
- regions support the management of legal risks by Portfolio Heads, the ADAG Civil Litigation or the ADAG FPS as appropriate;
- high impact trends and cases in regions are reported to DM Team; and,
- information is properly shared on horizontal issues and that others having functional or coordinating roles are properly involved
- regular periodic reporting on performance of LRM to DM & Associates
- prepare operational plans (which are sent to LRM Steering Committee)
Senior ADM, Policy Sector; ADM Criminal Law Policy; and Chief Counsel Public Law
- responsible for practicing and promoting LRM for Justice's own (as opposed to client) policy related legal risks
Expected Performance
- PMP commitments and PREA objectives appropriately reflect LRM as a Departmental priority
- effective LRM scanning practices for policy related legal risks are developed and implemented
- Justice's own policy related legal risks are identified, reported and managed
- regular periodic reporting on performance of LRM to DM & Associates
- prepare scanning plans (which are sent to LRM Steering Committee)
ADM Corporate Services
- has responsibility for ensuring the development of appropriate corporate tools (e.g., software) for implementing and sustaining LRM based on the direction of the LRM Steering Committee
- responsible for practicing and promoting LRM for Justice's own (as opposed to client) corporate legal risks
Expected Performance
- PMP commitments and PREA objectives appropriately reflect LRM as a Departmental priority
- appropriate LRM corporate tools are developed
- effective LRM scanning practices for corporate legal risks are developed and implemented
- Justice's own corporate risks are identified, reported and managed
- regular periodic reporting on performance of LRM to DM & Associates
- prepares scanning plans (which are sent to LRM Steering Committee)
Governance Structure
In addition to the individual responsibilities outlined above, a number of other bodies have important roles to play in managing LRM. These include:
LRM Steering Committee
- chaired by Associate Deputy Minister with representative membership from among key senior and working level LRM players and eventually including TBS and client representatives
- mandate is to coordinate and monitor overall departmental direction and implementation of LRM within Justice including identifying priorities for the next steps in the development and implementation of LRM
- advises Associate Deputy Minister on corporate and policy issues related to LRM
- reviews operational plans submitted by Portfolio Heads, ADAG Civil Litigation, ADAG FPS and Senior Regional Directors
- reviews scanning plans submitted by Senior ADM, Policy Sector, ADM Criminal Law Policy, ADM Corporate Services and Chief Counsel Public Law
- assisted and supported by DM Team Secretariat and LRM Special Counsel
- possible agenda items, beyond operational plans, scanning plans and project updates from specific actors, include: use of I-Case Reports, establishment of integrated scanning process for DOJ legal risks, best practices & recommended approach to contingency planning, relationship of DOJ LRM role to TBS initiatives, development of an "annual report" on LRM
LRM Special Counsel
- functional operational leadership for LRM in the Department
- functional reporting to Associate DM with line reporting and support to ADAG Civil Litigation
- challenge function with Portfolio Heads and others to ensure that LRM being
- effectively carried out within existing structures (e.g., with respect to contingency planning or responses to legal risks that materialize)
- key point of contact in Department on LRM information
- attends DM Daily as key point of contact on LRM information
- member of Litigation Committee
- chairs Thursday morning group (whose crucial role in effective LRM to be confirmed/ formalized and expanded)
- supported by LA, paralegal & support staff
- direct relationship, including substantive leadership, to DM Team Secretariat on LRM
- responsible with DMT Secretariat for organizing & supporting LRM Steering Committee
- responsible with DMT Secretariat for supporting Associate DM in LRM audit function
DM Team Secretariat
- LRM mandate is to assist the Associate Deputy Minister and DM Team to manage LRM within Justice by providing secretariat support
- responsible for final stage reporting of legal risks to DM Team and Minister (e.g. through Early Warning, Forward Agenda, high impact case reports etc.)
- reviews PMP and PREA commitments relating to LRM
- supports LRM Steering Committee working with LRM Special Counsel
- design and oversee scanning process for DOJ legal risks working with LRM Special Counsel
- works closely with and assists LRM Special Counsel
Thursday Morning Group
- to become formal Departmental Working Group supporting LRM
- represents all portfolios and sectors
- shares LRM information across portfolios, regions and sectors
- makes horizontal linkages and identifies emerging trends
- tracks and confirms operational follow-up (e.g., existence of contingency plans, communications plans and briefing strategies) when legal risks are identified, especially in regard to imminent events
- contributes to Early Warning and other reports for DMT
LRM Practice Group
- practice group made up of working level lawyers with significant LSU representation
- working level cooperation and sharing of information on LRM best practices and information
- participants identify and discuss corporate and administrative challenges in the day to day practice of LRM
- report to LRM Steering Committee on challenges in the day to day practice of LRM
- identify areas of need for training and tools development for LRM
Litigation Committee
- makes recommendation to Minister on appeals to SCC and interventions
- reviews and approves litigation strategies aimed at managing legal risks
- identifies need for horizontal consultation, communications strategies and contingency planning
DM Daily
- identifies in advance impending legal risks
- confirms preparations for managing impending legal risks
- information sharing across portfolios and sectors on high impact legal risks
- makes horizontal linkages
- allows for clarification of roles and responsibilities in regard to the management of specific horizontal legal risks
Inter-Departmental ADM Steering Committee
- inter-departmental committee chaired by Justice, with full client participation
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