Public Accounts Committee on April 8th, 2008

[John Sims]

Yes, sir. We are going to act much more quickly than that. I may stumble a little because I am going to try to answer you in French using notes that are written in English.

We have done a lot since the Auditor General's report was tabled. We have made significant improvements in strategic planning and in linking operational plans to strategic plans. We have done a lot of work in managing our outside legal agents, in alternative dispute resolution.

As I just mentioned to Mr. Murphy, we have started pilots to assess the effectiveness of these projects. In reports to Parliament, we have integrated the DPR and the RPP. They are much more integrated than they were previously. We have created a sector to look after the management of the department and it brings together elements that were once scattered all over.

Mr. Terry McAuley is the acting head of this group because the official in charge is ill at the moment. We have also created the Law Practice Management Committee, a group that previously did not exist, that will manage the provision of legal services. The report often mentions that there is no national system to provide these services, for example. The group has just begun to look at a framework of quality from which legal services will be delivered, including definitions of "quality".

The management of litigation risk is working very well, but progress has been slower in...

[Jean-Yves Laforest, Bloc, Saint-Maurice—Champlain, QC]

I would just like to ask one question, because I know that the clock is ticking.

I understand that you are taking steps. I come back to the matter of outside legal agents. The point has been made that, normally, when the Department of Justice engages outside lawyers to handle cases, it is because no lawyer has the necessary expertise in a specific area, or because, if there is one, he is not available.

Ms. Fraser, you said that these 21 situations occurred in three different regions of Canada. I seem to remember reading that somewhere in the report. Does that mean that the same sort of situations also exist in other regions? Have you also looked at the expertise of lawyers in the department to see if it would be possible to free them up rather than to hire lawyers from outside?

[John Sims]

Department lawyers have the necessary expertise in 90% of our cases. Sometimes, an area of expertise is not normally handled by the public service. We may have fewer services, or less expertise, in certain commercial matters. That happens quite rarely, however. It is not normal to have to hire another lawyer, or an area, in the public service. In some specific and rare cases, we hire someone from outside. Sometimes, there is a conflict. The background of a case can create a conflict even though someone in the department has the expertise. So, to avoid the conflict, we hire legal agents.

But on the other hand, if we realize that we are hiring legal agents too frequently in a certain area, we have to ask ourselves if it might not be appropriate to create that capability in-house. We do that. We go to outside agents for 1% of our cases.

[Jean-Yves Laforest, Bloc, Saint-Maurice—Champlain, QC]

Right. Thank you.

[The Chair, Liberal, Shawn Murphy]

Thank you very much, Mr. Laforest.

Mr. Williams, for seven minutes.

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

Thank you, Mr. Chairman.

Good morning to our guests.

Mr. Sims, we have talked about quality. We have talked about the issues that have been raised by the Auditor General. One of the things I'm thinking about here is standards. Back in 1993, the last audit found, for example, “a lack of management information”. Here I'm talking about paragraph 5.64 in the Auditor General's report.

In 1993 you agreed to bring in time management for lawyers, and you finally got it going by 2006. It took 13 years to move on a fairly simple administrative program that lawyers would keep time sheets so they could charge their clients for the work they were doing--13 years.

How long will it be, Mr. Sims, before we get the department working properly?

[John Sims]

Mr. Williams, 13 years is a long time—

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

I know it's a long time.

[John Sims]

But I think, as I started to indicate in my answer to one of the previous questions, we have moved very rapidly to implement—or plan to implement—the recommendations of the last audit. Departments always say in their audit report that they agree and they'll do something about it. We're actually doing something about it. We've taken many active steps to address the issues that Ms. Fraser has raised, so I think we're not going to be taking an undue time to implement the remaining outstanding matters.

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

Okay, so if I go to paragraph 5.57 in the AG's report and if we're talking here about your trying to do something, you actually drafted some standards with client departments so that you could actually interact with the departments, but these haven't been implemented. So you actually went through the exercise, but you didn't implement the standards that you'd agreed to and negotiated with the departments. Why?

[John Sims]

Paragraph 5.57?

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

In the middle of the paragraph 5.57 it says that “Establishing services standards has been a work-in-progress at the Department since our 1993 audit.” That's another 13-year work-in-progress.

At the time of this audit, we found that not all of the portfolios, regions, and branches had service standards in place. Some standards were drafted with client departments, but had not been implemented.

So is this just another legal work to keep the lawyers busy so they don't have to do anything?

[John Sims]

No. I think part of the challenge in managing the Department of Justice, and this area, is that we work with a number of different clients. We see this issue—

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

But all lawyers deal with different clients.

[John Sims]

And we've had service standards and financial arrangements developed in different pockets historically, over time.

One of the big challenges that's been identified, I think, in the Auditor General's report is to get global standards, uniform standards, national standards, and that's where the focus is now. So that's what we're bent on getting done in the next short period of time.

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

Will that be 13 years?

[John Sims]

No.

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

Okay.

In paragraph 5.56 of the Auditor General's report, she says they “found isolated instances where clients received more than one opinion on the same issue from different Justice Canada lawyers”, and then it goes on to say that “departmental officials had expected and wanted a single national opinion from Justice Canada. We were told of one instance where the differing positions were played out in front of the client who then had to act as conciliator”, in deciding, well, do I go this way or that way? I've got two legal opinions: one says black and one says white.

Surely he asked the lawyers for a legal position, not a bunch of legal positions, so he could choose where to go.

[John Sims]

I think what the report says, as well, is that these are rare, isolated instances.

As I indicated in my opening statement, we have a huge volume of active files, 66,500 of them. We deliver services all over the country. We appear in court approximately 50 times a day nationally, and we have 2,500 lawyers servicing the vast machine of government, and most of the time—almost all of the time—we don't have inconsistencies. Lawyers disagree sometimes, but we have mechanisms to identify the disagreements and to find a way to reconcile the different points of view and to ensure that different parts of government and different interests are brought to bear in reaching a single point of view. So—

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

But I think about the gun registry—and you may recall that situation—where the department had overspent the money that had not been appropriated by Parliament and found themselves in a bit of a pickle. They asked for a legal opinion, and the legal opinion was quite short and sweet, saying, hey, you've broken the law; you'd better get it fixed. And they said, well, gee, this is politically embarrassing. So in another convoluted, long, twisted process of splitting of hairs ten times over, they came up with a decision that said, oh, it's okay; it's perfectly legitimate to ignore Parliament and spend money that Parliament hasn't appropriated.

So do the lawyers provide advice that the clients want, or do they actually provide legal advice?

[John Sims]

I think I'd give the same answer, that the example you're pointing to, happily, is an exceedingly rare example. The mechanism—

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

How often does it happen, though?

[John Sims]

I only know of isolated instances.

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

One, three, ten, twenty...?

[John Sims]

The Auditor General's report talks of two. I don't know. I know it happens all the time that colleagues disagree at the beginning of the analysis of a file, but at the end of the day, I don't know of examples today of contradictory advice, beyond the ones identified by Ms. Fraser. In fact, I'm not sure--