Public Accounts Committee on April 8th, 2008

[John Williams, Conservative, Edmonton—St. Albert, AB]

No, this was not contradictory advice. The department just didn't like the advice they had.

[John Sims]

As a matter of fact, I was going to contradict myself. I don't think, in fact, from memory, that the advice in the firearms matter was contradictory. The two lawyers were asked for advice on consecutive days and gave slightly different answers...slightly different questions. It wasn't caught in time that there were these two people being asked to give advice at the same time.

[John Williams, Conservative, Edmonton—St. Albert, AB]

I have to disagree with that, Mr. Chairman, because it was quite clear. I'm sure you will recall that we dealt with this fairly intensively at committee, where there was a single, short, clear, concise, definitive opinion that said the law had been broken and money had been spent that was not appropriated by Parliament. Subsequent to that, and certainly not the next day, there was another opinion that was long, convoluted, tortuous, to say, “If you look at it from this perspective, that perspective, turn it upside down, twist it around, you can actually justify the position”. Now, this was a clear case of the department providing the opinion that the department wanted, rather than a legal opinion.

This is what I want to know: how often does this happen?

[The Chair, Liberal, Shawn Murphy]

Thank you, Mr. Williams.

Mr. Christopherson, for seven minutes.

[David Christopherson, NDP, Hamilton Centre, ON]

Thank you very much, Chair.

Thank you all for coming today.

Another fine report, Auditor General.

Lawyers in the public realm are often not seen, notwithstanding the law clerk's current notoriety these days. For the most part, they really are not seen except by the politicians. I've been fortunate enough to serve at four different orders of government: city, regional, provincial, and now federal. I have to tell you that for the overwhelming most part, especially for someone with an extreme deficit in a formal education, I need lawyers more than most of my elected colleagues, and I need them to make sense in a way that I can understand, and then use it.

Chair, again, for the overwhelming most part, people who dedicate themselves.... It's like doctors who go into public health. Lawyers who choose to go into public service do so as opposed to going out and finding out how many millions they can squirrel away before they leave this place. So I just want to thank all the lawyers who make those decisions, because without them, quite frankly, nothing could happen.

The more of a role a country plays in the world, the more you need to have a respected legal foundation that comes into play. I'm learning that the more I'm here. I just feel compelled to put on the record that, for the most part, the unseen lawyers do a phenomenal job for the Canadian people, at all orders of government, and we thank you for that.

However, having said that, I'm one of those on the committee, for the most part, who takes great exception to and who has a lot of difficulty with audits that have been done in the past, and then we have another audit and yet another audit and we're seeing the same problems over and over. It drives us crazy. There is really no excuse once it has already been identified, and some deputy some day has said “Yes, we agree, and we'll do it”, and then nothing happens.

Right here on page 3 we've touched on some of this. I want to revisit it a bit. This is the Auditor General: “Much of what we found had been identified in our 1993 audit as weaknesses”, meaning what they found in this audit was similar to what they found in the 1993 audit. My good friend Mr. Williams has already referenced that.

Give me a quick two or three points on that, Auditor General. What are the three things that stand out in your mind that are still unresolved, that were there in 1993?

[Sheila Fraser]

If I could, Chair, to be fair, we have to point out that the department has made progress on a number of issues. The second sentence notes “managing legal risk, managing legal agents”, which I know is not an easy thing to do, and they began to introduce time-keeping. So we do have to give them credit for work that has been done.

I would say the two main areas in which we believe improvements are needed are information systems on workload and human resources and financial arrangements with client departments. Those are two issues that were present in 1993 and have still not been resolved.

[David Christopherson, NDP, Hamilton Centre, ON]

Did you hear an adequate explanation as to why it didn't happen?

[Sheila Fraser]

As the deputy has mentioned, in terms of the financial arrangements it was certainly due in part to the complexity and the size of the department, and the fact that most of this is decentralized as well. To bring in uniformity across the department is a challenge and does take time.

Department-wide information on workload and human resources goes back again to the whole issue of timekeeping and better information systems, which I think we've seen from other audits is an issue that is not unique to this department.

We certainly do sense that the department is committed and has begun to take action on many of these, so we are cautiously optimistic that the follow-up audit, if it were to be done, would be positive.

[David Christopherson, NDP, Hamilton Centre, ON]

Good. Thank you.

Deputy, you know this question is coming. What assurance do we have from you now that is going to make a difference from the assurances that were given by a deputy then?

[John Sims]

Speaking for me and what we're doing now, we are determined to address the questions the Auditor General has raised.

The whole management of the public sector is, I think, more rigorous and vigorous than it has been in the past. It's in our self-interest to get these systems right and to be able to generate the information and the data so that we can tell our story. We have a good story to tell, we think, and we'd like to be able to tell it effectively by recourse to the data and information that will allow us to do that.

We want to manage properly. We have enormous challenges that we can't face effectively with systems that let us down, so it's in our interest as well as for any other reason to give this a priority, and that's what we're doing.

[David Christopherson, NDP, Hamilton Centre, ON]

Thank you.

This is about the point at which I would really home in on it and go for broke, but I've got tell you that a lot of the problems are being addressed, notwithstanding some of the concerns around section 5.93.

Deputy, here's what I want to do. I have only a few moments left, but would you just quickly point out the stages of the process? When your department gets a phone call from somewhere--another ministry, another department--what are the main steps that happen? As well, I'm going to call on your talents--and obviously you would be honest--to identify for me in as frank a way as you can areas where there were criticisms, and then identify what you're doing to correct them, so that I can end my few moments with you knowing that the whole thing has been thought through and that you've identified the key areas--not only just in a good report, but in a practical, common sense, everyday way. Would you do that, please, deputy?

[John Sims]

Just to understand your question, you're picturing a client calling the Department of Justice and wanting--

[David Christopherson, NDP, Hamilton Centre, ON]

Yes. For us and for anybody who is watching on TV, exactly what is the process? You get a call from someone who needs legal help; after that, what are the key steps, without going into any great detail? When the Auditor General has made recommendations on those steps and you're going to act on them, at what points in those steps have you been less than ideally effective?

[John Sims]

So a client speaks to one of our lawyers, probably a lawyer who is co-located with the client in one of the departmental legal services units. Let's imagine it's at the Department of Fisheries. Because it's a lawyer the client has a lot of dealings with, the first thing the lawyer will do will be to try to identify with the client what legal questions this raises. Chances are high in the Government of Canada that the issues will touch more than just the Department of Fisheries. It may well touch the Departrment of Indian Affairs, for example, if it's about a shared fishery involving aboriginal fishers, and so on. There may be constitutional issues.

So the lawyer, at the first instance, will try to figure out what all the legal issues are that have been raised and ensure that all the parts of the Department of Justice that ought to be brought to bear have a chance to feed into the analysis of this question. And by the same token, the lawyer will make sure other affected and touched client departments are also made aware that this issue is arising and they are given a chance to come in.

One of the issues that the Auditor General mentions in her report is that what we have not done in the past is, at an early stage in this process, sit down with the client to say, “Okay, we can now ballpark that it's going to take so many hours to get this piece of work done, and we estimate it's going to cost so much money for us to continue to do this work”, and have a conversation about whether the department, the client, wants the work to continue or whether, knowing that's the cost, it might make a decision not to go ahead with it at this time.

Much of the work we do, of course, is not discretionary. Much of the work the government faces involves legal issues that arrive on its doorstep. It didn't go looking for them. So it may have no choice but to proceed, but we haven't in many cases in the past had that kind of conversation, unless the file is really big. If the issue is enormous, we have had those conversations, but for smaller kinds of files, we have not done that.

We've developed tools, which are referred to in the audit report, in particular the legal risk management as an approach for analyzing the degree of risk in the issue that's been brought to the attention of the lawyer. So we would assess whether a bad outcome is likely to occur and, if that bad outcome does occur, precisely how bad it would be for the Government of Canada. So there's a problem, but it's almost certainly not going to happen, and if it does it's minor anyway. If you make that assessment early on, you're not going to spend much time on the file. If it is going to happen for sure and there's going to be a big, bad, adverse outcome for the government, then you'll spend a lot of attention on the file. You'll make sure that more resources are devoted to the management of that issue. That kind of analysis is made at the same time.

[The Chair, Liberal, Shawn Murphy]

Mr. Sims, we're going to go to the next questioner. Thank you very much.

Thank you, Mr. Christopherson.

Mr. Wrzesnewskyj, you have seven minutes.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you, Chair.

Mr. Sims, I understand your department's budget is approximately a billion dollars. Is that correct?

[John Sims]

It was a billion dollars at the time of the audit, but since then the office of the Public Prosecution Service of Canada has left, taking money with it, so the budget is closer to $600 million.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Now, between the period of 1998 and 2005, the report notes that your operating expenses basically doubled. Is that correct?

[John Sims]

Yes.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Madame Fraser, would you be aware of any other major government department whose operating expenses would have doubled during that same timeframe, or is this a one-off?

[Sheila Fraser]

I'm sorry, Chair, I don't have that kind of information.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

But I think most likely it would come to our attention in this committee. In fact, if all major government departments' budgets, operating expenses, had doubled during that 1998-2005 period, most likely we'd be rocking the fiscal foundations of the country. So I find it quite strange that this particular department would have a doubling of its expenses. Have we seen that in any other sectors?

Mr. Sims, have we seen a doubling of budgets in your provincial counterparts' departments? Have we seen it in the corporate sector, or is this just specific and unique to the Department of Justice federally?

[John Sims]

I don't have that information. I have some information from other sectors that goes to a recognition that the nature of legal problems in the last period of time has increased in complexity tremendously. Certain court processes now take more time and court days than they used to, and so on. There is data like that.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

So your explanation seems to be that society has become more litigious during the last seven years. But I note, in the actual report, that there are other issues raised, just simple accounting issues, such as substandard timekeeping by your lawyers. Are those sorts of issues now being addressed? Also, is it a reflection, perhaps, of ineffective alternative dispute resolution? There were some questions as to the effectiveness of those processes.

Is it just because everyone is more litigious, or is it because of lack of controls within your department?

[John Sims]

I think you ask a really interesting question, and I don't think I have a complete answer. I'm not sure if anybody does. First of all, it's important to recognize that we respond to demands for service. So we were getting bigger--we're not now--in response to increased demand from the departments that run programs that were suddenly attracting many legal issues. The classic example, I suppose, would be at the Department of Indian Affairs during the period when there were 13,000 or 15,000 cases coming out of the Indian residential schools. That created a bubble of work, an enormous amount of work, both from INAC and the Department of Justice, as they tried to deal fairly and expeditiously with those cases.

We've seen the whole phenomenon of class actions growing in recent times, which is a factor that affects society as a whole. We had only a handful some years ago. They were virtually unknown. And now we have 150 class actions, I believe, against the federal government. By their nature, they are very time-consuming.

We have a number of public inquiries, which you would know about very well. Public inquiries have a way of demanding a great deal of attention from the Department of Justice.

But the Auditor General makes a point, which I think we really have to understand well and try to think through, which is whether we can design incentives for the departments that give us the work or ask for our services to help them, together, find ways to control the demand. I don't create the demand. They do. Can I help them find an incentive mechanism that will hold this down?