Accountability and Coordination Framework of the Roadmap for Canada’s Linguistic Duality - Justice Canada Component Evaluation

4. MAIN EVALUATION FINDINGS

This section describes the main findings from the evaluation. The information was grouped by the topics of the relevance, effectiveness, and efficiency and economy of the OLLS in fulfilling its responsibilities under the Framework.

4.1. Relevance

This subsection presents the findings related to relevance and closely examines the OLLS’s alignment with government priorities and the continued need for its involvement in implementing the Framework.

4.1.1. Alignment with Government Priorities

Overall, the evaluation found that the mandate and functions of the OLLS under the Roadmap align with the priorities of the Government of Canada and the Department of Justice.

The Roadmap tasks the OLLS with performing the following functions in implementing its Accountability and Coordination Framework:

This evaluation found that these functions fit into the federal government’s broad policies on official languages.

The Canadian government’s official language obligations as well as the OLP are based on a legal framework which includes the Constitution Act (1982), the Canadian Charter of Rights and Freedoms and the OLA. To navigate within this legal context, federal institutions need continued support to better understand and fulfill the legal obligations arising from this framework. The functions assigned to the OLLS were designed to help federal institutions in these aspects.

Also, under the Roadmap, the Department of Justice[6]:

(…) will continue to offer advice on the language provisions of the Constitution, as well as the overall implementation of the Official Languages Act, and work together with Canadian Heritage and the Treasury Board Secretariat to ensure increased information sharing, and the compliance of policies, programs, initiatives and government documents with the language provisions of the Constitution and the Act.

Moreover, the Accountability and Coordination Framework on Official Languages assigns the Minister responsible for Official Languages and the Minister of Justice with responsibilities for horizontal coordination of the Official Languages Program. That framework tasks the Minister responsible for Official Languages with the responsibility of consulting minority communities and other key stakeholders such as the Commissioner of Official Languages, conveying to the government the stakeholders’ action priorities and any issue pertaining to official languages, and informing the public of the government’s viewpoint on official languages. The Department of Justice is specifically tasked with:

(…) guiding the federal government in interpreting language rights, formulating the government’s position in disputes involving language rights, and fulfilling specific responsibilities with respect to legislative drafting and access to justice in both official languages, examining initiatives, programs and policy directions that may affect official languages in order to identify their legal implications.

The functions assigned to the OLLS are therefore supporting the Department’s role pertaining to the horizontal coordination of the federal agenda in the area of official languages.

Since the OLLS is a specialized legal service, the functions assigned to it align with the Department’s second strategic outcome: "a federal government supported by effective and responsive legal services".[7]

One of the Department’s operational priorities for 2011-12 is to provide "direct and indirect support for implementation of all government priorities"[8]. This priority means that critical legal services will be provided to support departments in implementing priorities related to the four core government spending areas, which are Government Affairs, Economic Affairs, Social Affairs and International Affairs. Since linguistic obligations have an impact on all these areas, the OLLS, by the nature of its functions, is contributing to this departmental priority.

All individuals consulted as part of this evaluation agree that the mandate and functions assigned to the OLLS under the Accountability and Coordination Framework are still relevant. The area of official languages is a particularly complex one, both legally and in terms of policy. The constitutional and quasi-constitutional nature of language rights, the many government policies, the initiatives of all types and the abundant case law are among these complexity factors. It is also an area of law that changes quickly and goes beyond the public service. This context means that lawyers from the Departmental Legal Services Units - usually generalists - and partners in implementing the OLP must be able to rely on a legal expertise centre.

4.1.2. Continued Need for the OLLS’s Involvement in Implementing the Framework

Based on the information gathered, it can be concluded that the OLLS’s involvement in implementing the Framework is still needed.

The OLLS’s main functions in implementing the Framework are:

In closely monitoring issues arising in legislation, case law and the media, a number of key respondents feel that the OLLS is proactive. It is acknowledged that the OLLS’s proactive nature is the value-added provided by the Roadmap to the OLLS’s mandate. This function is needed to ensure that the legal risks associated with the official languages file are properly managed.

Regarding the second function, reviewing initiatives, programs and policies, it should be said a priori that the OLLS does not review all key documents. At present, the departments are not required to convey those documents to the OLLS, and there is no systematic transmission structure in place. However, some departments do send the OLLS key documents regarding new programs, initiatives and policies. Among the documents received, the OLLS sorts the Memoranda to Cabinet and Treasury Board submissions to determine which ones are most likely to be problematic from an official languages standpoint. Although most of the key respondents consider this function necessary, some of them express reserve. One respondent is of the view that the OLLS does not always have the opportunity to step in early in the initiative, program or policy-development process. One other respondent stated that if the capacity exists within their departments, the responsibility for reviewing initiatives, programs and policies should fall mainly to the lawyers from the Departmental Legal Service Units, and not to the OLLS.

The third function, which involves supporting the lawyers from the various DLSUs, is central to the OLLS’s role. All respondents consulted acknowledge this function as being essential.

Most of the key respondents also believe that it is necessary to coordinate the preparation of the government’s position in litigation involving language rights. This role is also identified by the Federal Prosecution Service Deskbook (chapter 34, directive 14)[9]. Indeed, the federal government has a strong interest in presenting a cohesive position in litigation involving the Attorney General and in opinions intended for the lawyers from the DLSUs. This function helps minimize the official language-related risks for the federal government.

As for educating the federal institutions, it is recognized that there is an ongoing need for refreshing official language knowledge within the federal public service. One of the key respondents recalled, for example, that an average of 50 new people join the Departmental Official Language Champions Network every year. An ongoing education effort is needed for new members, but also to keep older members up to date. The OLLS, as a centre of official languages expertise, and in cooperation with its partners, is well suited for providing ongoing training and awareness to all levels of the federal government.

Lastly, the function that involves providing legal guidance to the CADMOL and its subcommittees that play a coordination role is considered useful by most key respondents, although it is less essential for some. It should be said that the function of guiding the horizontal coordination bodies is shared among the OLLS and its partners, including the OLS. The OLLS’s contribution to coordination mainly involves providing legal opinions to the coordination bodies, as it does to the departments.

These findings are generally consistent with the key findings from the last OLLS evaluation in 2007. Specifically, the evaluation report points out: "As the federal government pursues its implementation of the Accountability and Coordination Framework, it will require the support of the Official Languages Law Group" (the OLLS’s name at the time).[10] Moreover, nearly all key respondents consulted were not able to identify another forum for these functions.

On the whole, the OLLS’s functions are widely seen as still necessary at present. The pro-active nature of the advice provided by the OLLS and its impact on reducing the legal risks in the official languages sector are well recognized by stakeholders. Also acknowledged is its contribution to the consistency of the federal government’s position in official languages litigation.

4.2. Effectiveness

This subsection presents the findings regarding the effectiveness of the OLLS in fulfilling its responsibilities under the Framework. It looks at three major activities for the OLLS: monitoring of official languages issues, legal advice and activities associated with litigation, as well as training initiatives and practice groups. This subsection also reports on the OLLS support to the horizontal coordination of the Roadmap.

The OLLS conducted a number of activities between 2008 and the present, as indicated in Table 2.

Table 2: Count of the OLLS’s Activities between 2008 and 2012
Activities 2008-09 2009-10 2010-11 2011-12 Total
Committee meetings 13 13 14 10 50
Litigation 32 36 17 16 48[11]
Training sessions 16 18 30 19 83
Practice group 2 1 2 1 6
Legal opinions (formal and email) 104 72 88 120 384
Framework opinions 0 3 0 1 4
Charter-related information notes (16 to 23) 0 8 7 1 16[12]
Litigation summaries 3 1 4 4 15

Source: administrative data.

4.2.1. Monitoring of Official Languages Issues

The OLLS has a system in place which enables the monitoring of issues arising at multiple levels. This system enables the close monitoring of issues in legislation, case law and the media. It has allowed the lawyers to remain up to date on emerging issues related to official languages that could have an impact on the federal government. It has also helped them to better anticipate legal risks. Since the official languages area evolves rapidly, many key informants believe that this practice is effective.

Monitoring of official languages issues also takes place at another level: the review of key documents related to new programs, initiatives or policies to be implemented by the federal government. Even if not all documents can be reviewed, the OLLS selects the ones that potentially involve higher risks related to official languages. The most important documents reviewed are Memoranda to Cabinet and Treasury Board submissions. This practice enables the OLLS to work with the departments concerned in order to minimize legal risks.

4.2.2. Language-related Litigation and Legal Opinions

Language-related litigation

The OLLS becomes involved in litigation pertaining to language rights. When the Attorney General of Canada is a party to or intervener in a language-related dispute, the OLLS can either provide legal opinions to the litigators or take part in preparing the submission, if it is fundamentally a language-related dispute. Very often, the OLLS is involved in the submission. When the Attorney General is not an intervener, the OLLS performs the function of monitoring and analyzing the case law and distributes it within its networks, including via the language-related litigation summaries.

The OLLS monitored about 50 litigation cases during the period covered by this evaluation. The data shown in Table 2 reflect the fact that some cases extend over more than one fiscal year and are therefore accounted for over more than one year. The data include the cases that the Attorney General of Canada was a party to or intervener in during the 2008-12 period, cases where the OLLS provided advice to litigators as well as the other cases tracked under the OLLS’s monitoring role.

The reports that document the coordination of the Roadmap gave significant importance to the role played by the OLLS around one particular case. This case pertained to Canadians’ access to services of equal quality in both official languages and the federal government’s obligations in that regard. The reach of this Supreme Court ruling extended to all federal institutions.

The OLLS provided particular support as legal advisor to a working group on managing the legal risks arising from this case. That working group was the driver behind an assessment grid issued by the Treasury Board Secretariat for helping federal institutions apply the principle of true equality to their institution’s programs and services. With that grid, each institution can, by taking into account its mandate and the range of its programs and services, more easily determine the best way to comply with the ruling. The CADMOL, which is the highest Roadmap coordination body, relied heavily on the OLLS’s contribution in order to identify the key issues represented by this case and to develop a reactive strategy.

Although the case required important efforts from the OLLS, the section has been involved in many other important litigation cases. Several key respondents mentioned some cases that have been debated at the Federal Court or the Supreme Court. In these cases, the OLLS was able to quickly assist litigants in preparing their case.

Language-related Litigation Summaries

Language-related litigation summaries are documents published three or four times a year. They are summaries of cases before the courts that involve language rights. Summaries are prepared for cases for which the Attorney General of Canada is a party to or intervener in, other cases that are likely to draw attention, new cases, decisions issued and significant developments that have occurred. The OLLS produced 15 summaries during the period covered by this evaluation.

All informants consulted for this evaluation, including lawyers from DLSUs, are familiar with this tool, and most find it very useful. It is an important tool for staying current in official languages. Some key informants indicated that they do not systematically read these summaries, but they know where to find them when needed.

Legal opinions

One of the OLLS’s main functions is to provide legal opinions on specific issues involving official languages. The OLLS provided 354 formal or email opinions during the period covered by the evaluation, which is slightly less than 100 per year.[13] These opinions, which are intended for many federal departments, are among the most well-known tools and are considered very useful. Since 2008, the OLLS has also updated and developed its framework opinions that deal with different key sections of the OLA. The OLLS’s formal legal opinions and framework opinions are placed in the Department of Justice’s databank available through the Intranet. A number of informants consulted found this resource, which allows keyword searches, to be very useful. A satisfaction survey among the OLLS’s clients indicates that it widely met expectations regarding the breadth and nature of the legal advice provided (a score of 8.6 out of 10) and the appropriateness of the legal decisions issued.[14] This survey also indicates that the OLLS promptly handles requests for legal services (a score of 8.9 out of 10).

4.2.3. Training Activities

Training sessions and practice group

The OLLS provided training in several formats during the period reviewed. In total, it delivered 79 training activities, including in-class presentations and conferences at academic colloquia, presentations to official language champions, Section 41 coordinators or management committees of various departments, training workshops and information sessions for new Department of Justice employees, and presentations to foreign delegations. These activities were all intended to explain the basics, the issues and developments with regard to languages rights.

In addition, the OLLS facilitates a language rights practice group that meets one or two times a year, or more if required (a total of six times since 2008). This practice group enables Department of Justice lawyers interested in language rights to fine-tune their knowledge, share information and create a coordinated approach. This working group had existed since 2004, but was reinvigorated under the Roadmap.

Most key respondents said they are aware of the OLLS’s training sessions and the practice group meetings on language rights arranged by the OLLS. These tools are considered effective ways of keeping employees informed of new developments in official languages. An uncontrolled sample of 20 individual evaluations of two training sessions given by the OLLS shows very high satisfaction among the participants, with an average score of 5.4/6.[15] However, the number of training activities that have been evaluated is limited. To obtain more structured feedback, it would be important for the OLLS to consider developing feedback mechanisms that are relevant to the different forums where training activities are held.

On-line resources

The OLLS has also been involved in the development of on-line resources such as Justipedia and JUSnet Intranet.

Justipedia is an on-line resource centre of the Department of Justice, accessible to the Department’s lawyers. It provides access to the Department’s expertise directory and the practice groups’ pages. It contains 38 legal practice areas, including the one for official languages. This resource had been under development for several years and was recently opened to lawyers. The OLLS actively participated in the pre-testing of Justipedia by gradually transferring its data there. Today, the official languages area has several hundred documents. This resource is not yet well known, but it required significant effort by the OLLS during the period evaluated.

The OLLS has also developed a section on the Department of Justice’s JUSnet Intranet. It contains up-to-date information on the OLLS and its mandate as well as on the products and reference tools that it provides within its area of expertise, for example backgrounders on sections of the Canadian Charter of Rights and Freedoms and other constitutional, legislative and regulatory provisions, its framework opinions, its litigation summaries, guidelines on litigation, as well as the texts of its presentations or publications.

A number of positive comments were made about the information on the OLLS Intranet site, even though this resource appears not well known. The OLLS site, which is accessible only to Department of Justice employees, logs roughly 100,000 requests annually, from roughly 1,000 users.[16]

The resources that are less well known by the key respondents are:

That being said, most of the key informants who are aware of these resources consider them useful.

4.2.4. Support to Horizontal Coordination of the Roadmap

Horizontal coordination

The horizontal roles played by the OLLS as an expert group are well recognized among key informants consulted during the evaluation. These roles include litigation involving multiple federal institutions and as advisor on various committees for coordinating the Official Languages Program.

The OLLS staff has sat on a number of horizontal committees such as the CADMOL and its Management Subcommittee, the Official Languages Program Interdepartmental Coordination Steering Committee, the Departmental Advisory Committee on Official Languages, the Council of the Network of Departmental Official Language Champions, the Department of Justice Policy Committee and its Working Group, as well as the Network of Justice Official Languages Champions. A number of key respondents stated that the OLLS is effective in playing an horizontal role, especially with its active involvement on the CADMOL.

They state that the OLLS’s role in the major case mentioned earlier is the most telling example of this interdepartmental work. According to several key respondents, the OLLS has played a significant role in educating all federal institutions about the importance of complying with this ruling.

Key respondents feel that neither the Treasury Board Secretariat nor Canadian Heritage could have played the role that the OLLS did since Treasury Board Secretariat works mainly with human resource teams on Parts IV, V and VI of the OLA and does not advise the entire government on major cases. Since the judicial aspect of this major case did not involve part VII, Canadian Heritage did not play a prominent role. This situation illustrates the value-added of the OLLS, which was able to step in and help coordinate the government’s response.

However, the analysis of the data gathered for this evaluation shows that, although the OLLS’s contribution to coordinating the Roadmap is not in question, there is still some uncertainty about the clarity of that coordination overall.

Divided opinions were seen on whether the functions carried out by the OLLS have led to better horizontal coordination among federal institutions in implementing the Official Languages Program.

On one hand, a number of key informants stated that they were under the impression that horizontal coordination had improved since 2008 and that the OLLS played a role. They suggest that official languages had a higher profile within the public service for some time now. This increased reach is seen to be attributable in part to the OLLS’s training sessions, on-line services, litigation summaries and its other services, and to the fact that these efforts have contributed to better official language horizontal coordination.

On the other hand, almost the same high number of key informants are of the opinion that horizontal coordination on the whole has not improved in the past few years. However, none of these respondents identified the OLLS as responsible for this lack of progress. It is apparently attributable instead to ongoing confusion around governance of the OLP. The roles of the other players seem to still be poorly understood. This confusion inevitably affects the horizontal coordination of the Roadmap and, therefore, the OLLS’s role in it.

Therefore, the OLLS’s coordination role is not clear for many. It is recognized that it guides the Roadmap coordination bodies on legal issues, but the OLLS’s positioning under the Coordination component of the Official Languages Program seems to create coordination expectations that do not come under its mandate. Those expectations create some confusion between the OLLS and the OLS in terms of coordination-related responsibilities. Therefore, it would be useful to better communicate the OLLS’ coordination role.

Knowledge of the spirit and intent of the OLA

Most people interviewed as part of this evaluation are of the view that the spirit and intent of the OLA are better known than ever, especially among executives in federal institutions.

A number of respondents suggested that it is often court decisions that underly knowledge advancement in official languages. Since 2008, one major Supreme Court is the event that has made the greatest mark on the official languages landscape in the public service. That decision boosted interest in the matter.

The OLLS has improved knowledge of the spirit and intent of the OLA in that it informed the federal government in preparation for and in reaction to major court decisions. By carrying out its functions, the OLLS led federal institutions to consider the impact of these decisions on their programs and services. In doing so, it disseminated knowledge in several formats and enabled officials to better grasp the essence of the OLA. According to a number of key informants, the persons responsible for official languages, Deputy Ministers, Assistant Deputy Ministers and official language champions currently have access to more information than ever on official languages. The champions in particular are apparently better equipped to fulfill their role.

4.3. Efficiency and Economy

4.3.1. Benefits and Costs

The evaluation found that value-for-money resulting from the OLLS performing its duties in fulfilling its responsibilities under the Framework has been achieved. Several key respondents consulted during this evaluation stated that the amount allocated to the OLLS under the Roadmap is modest, given the importance of its mandate and its outcomes.

Roughly half of the OLLS’s annual financial resources (i.e. $500,000) are represented under the Roadmap. This was already the case under the 2003 Action Plan for Official Languages. With this financial contribution, the OLLS was able to keep two lawyer positions and one paralegal position on its staff. This staff adds capacity to the existing personnel. However, it is the OLLS’s entire staff, not just these three positions, that shares the tasks that this evaluation reports on. Therefore, we cannot attribute the results obtained by the OLLS to the specific work of the added staff. Yet we note that, with its strengthened capacity, while fulfilling its core mandate, the OLLS has been able to take on a more proactive role, in particular by actively monitoring official languages issues that can affect the federal government. This strengthened capacity allowed the OLLS to add a number of outcomes to its count, including a richer, more up-to-date space on the JUSnet site, facilitation of the language rights practice group, involvement in preparing Justipedia, and active involvement on several horizontal bodies.

Unlike the Department of Justice’s other specialized legal service units, the OLLS does not operate on a cost-recovery basis. According to such a service-delivery basis, the Department of Justice bills the federal departments that request legal advice from a lawyer of a specialized service unit. Since the OLLS plays a number of roles and provides a variety of services, with legal opinions being only one aspect, the evaluation was unable to estimate what the benefits or disadvantages would be of a cost-recovery system for legal opinions. However, it should be noted that such a recovery system records the costs of the legal opinions given, and also generates its own administrative costs (computer system, time devoted to entering the billable time and administrative support staff). Several key respondents were of the view that, if the OLLS were to operate this way, the annual operating cost would amount to much more than $500,000.

4.3.2. Management Practices

This evaluation found that the OLLS is influenced by many factors that are increasing the demand for its services. That increase in demand prompted the OLLS to refine its management practices with the aim of improving its efficiency.

In its most recent Operational Plan, the OLLS identifies certain trends that may impact the demand for services[17]:

In addition, according to the information gathered by this evaluation, several other factors have had a determinative influence on the OLLS’s activities over the past few years.

Firstly, the fact that Parliament made Part VII of the OLA justiciable in 2005 had a significant impact. This legislative amendment led to the realization that today, official languages are taken more seriously. For the OLLS, this increased interest in official languages means an ever-increasing number of service requests.

Secondly, a number of emerging topics are helping increase the OLLS’s work. Among the topics mentioned are the social media, the expenditure review process and government transparency. Official languages law must be reflected in all these major changes. Therefore, the OLLS has become involved in the networks that treat this matter.

Lastly, the OLLS’s volume of work has also been marked by a greater number of private member’s bills.

Therefore, the OLLS is increasingly called upon as a centre of expertise for limiting the legal risks and, where applicable, assisting in litigation. Since it does not have more resources to rely on, the OLLS has focused on efficiency in its work methods.

This efficiency comes about through two main approaches: information sharing and support for the lawyers. These measures also help ensure the quality of the services that the OLLS provides.

The purpose of information sharing is to enable OLLS employees to rely on complete, up-to-date information to make it easier for them to perform their daily tasks. As such, a number of tools or mechanisms exist: a database on previously issued legal opinions and on case law and relevant doctrine, a SharePoint site, the Intranet site and Justipedia, a weekly table on active files as well as weekly team meetings and annual strategic planning retreats since 2010. That approach enabled OLLS lawyers to stay current on new language rights developments and boost the section’s team work.

The second aspect (support for lawyers) aims to provide lawyers with support in performing their functions. Thus, the number of duties assigned to assistants and the paralegal were maximized. Essentially, those duties involve regularly populating the information systems used by the OLLS, including the Intranet site and Justipedia, and performing legal research to support the lawyers. That research mostly involves monitoring various areas for identifying language-related litigation. Moreover, the OLLS established a language rights practice group.

Lastly, all legal opinions are reviewed by the general counsel before they are sent to clients. This measure ensures the quality of the legal opinions issued. To minimize the time incurred by this practice, an inter-colleague consultation system exists for finalizing the opinions. Thus, only the final draft is reviewed by the general counsel.

4.3.3. Other ways to achieve the same objectives

There appears to be no other more cost-effective way to achieve the OLLS objectives. An official languages centre of expertise is considered a key aspect of horizontal coordination of official languages. The government has a stake in having the OLLS’s functions centralized to ensure the desired coherence. The DLSUs do not currently have the capacity or expertise to take on the OLLS’s official languages role. In addition, the OLLS’s credibility ensures that its clients operate in accordance with their official language obligations. According to some key respondents, reducing the OLLS’s role would lead to increased legal risks for the entire federal government.