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Updated: Mon, 11 Aug 2014 17:32:35 GMT | By CBC News, cbc.ca

Justice Department lawyers stretched thin, internal report finds



Federal Justice Minister Peter MacKay reacts to comments on a decision by Ontario's Ministry of the Attorney General regarding the prosecution of people under three prostitution laws struck down by the Supreme Court, in Halifax on Thursday, Feb. 6, 2014. The Supreme Court of Canada struck down the country's anti-prostitution laws late last year. Prosecutions involving the three impugned laws will depend on a case-by-case review according to an Ontario government spokesman. Andrew Vaughan/Canadian Press

Federal Justice Minister Peter MacKay reacts to comments on a decision by Ontario's Ministry of the Attorney General regarding the prosecution of people under three prostitution laws struck down by the Supreme Court, in Halifax on Thursday, Feb. 6, 2014. The Supreme Court of Canada struck down the country's anti-prostitution laws late last year. Prosecutions involving the three impugned laws will depend on a case-by-case review according to an Ontario government spokesman. Andrew Vaughan/Canadian Press

The lawyers that craft Canada's laws and advise government on everything from criminal justice trends to national security are being forced to cut corners to cope with heavier workloads, tighter timelines and decreased funding and staff.

An evaluation of the Criminal Law Policy Section at the Department of Justice warns that while the group of legal experts has been meeting its objectives, the fast pace of policy development, a loss of senior counsel and tightening financial resources are "hindering its optimal effectiveness" — and warns the situation will only get worse.

"The section is achieving its expected outcomes using a limited amount of resources, though not in a manner that is sustainable," concludes the report by the Justice Department's evaluation division.

Thorough analysis, consultation with external stakeholders and development of policy options are "adversely affected," the report adds.

The evaluation — the first such review of the Criminal Law Policy Section — was conducted between November 2012 and December 2013 and covered the work of the department between 2008-09 and 2012-13. During that period, it experienced a "substantial decrease" in resources — with expenditures slashed by 21 per cent and full-time equivalent staff down 18 per cent due to attrition and salary cuts.

"This has the potential to affect the effectiveness and the efficiency of the section's services in complex matters, erode the experience and knowledge base of the section and affect the quality of legal work," reads the report that was completed in March 2014 and recently published online.

Critics warn the impact could be dire for the quality of Canadian laws and the justice system as a whole.

Too many demands, NDP says

The Criminal Law Policy Section is the federal government's hub of expertise on criminal law including offences, enforcement powers and sentencing. It also works with other units to advise government on areas such as national security and terrorism.

NDP justice critic Françoise Boivin said lawyers performing a critical function for Canada's justice system are stretched too thin and overworked, but narrowing the focus of their work is not a good solution.

"You're in front of professionals, but professionals who are getting tired because they have more and more demands on them," she said. "What it means is you get less clear laws, you don't have laws that have been researched and analyzed as much as they should have been."

In response to questions from CBC News, the Justice Department stressed that the section has been effective to date, achieving expected outcomes and garnering a high level of satisfaction with its work. Spokeswoman Carole Saindon said it is engaging in "targeted staffing" to better meet changing needs.

"The Criminal Law Policy Section has undertaken a number of steps to improve efficiency, including assigning files based on experience, expertise, workload and operational needs and will explore opportunities to re-align resources to more effectively and efficiently address the demand for services, including new priority issues," she said.

The report also says that consultation with the provinces and territories and external stakeholders is also being compromised. Boivin said the government is getting more and more outside advice as a way of controlling information and gaining "moral justification" for a politically driven agenda.

Liberal justice critic Sean Casey called it "troubling" that the government has cut funding in an area paramount to its legislative agenda.

"For a government that has as the centrepiece of its raison d'être, tough on crime, you would think and expect they would dedicate the resources to this particular department if any, to do a thorough job," he said. "It's happening everywhere, but that doesn't justify what they are doing here, where they are so radically changing the country's approach to criminal law."

'Don't let the facts get in the way'

Casey said the section is now being held together with "Herculean efforts" of dedicated public servants, but more lawyers will be lost due to burnout. Ultimately, he said, the quality of laws will suffer — reflected in the "losing streak" the government is on with cases before the Supreme Court.

"Given the right manpower, given the right budget, the government would be able to expect thorough, comprehensive advice that may have an impact on the constitutionality or the policy strength of the legislation they're bringing forward.

"But what we're seeing is that for them, it doesn't really matter. Solid, well-researched, timely criminal law policy advice isn't a necessity for them to do what they want to do. In fact, sometimes it just gets in the way and is expendable," Casey said.

"And I think that is the message that this sends, sadly. When you're driven by ideology, you don't want the facts to get in the way, and the degree to which this department has been cut is entirely consistent with that."

Steve Sullivan, executive director of Ottawa Victims Services and the former federal ombudsman for victims of crime, agrees that an expanding workload with a faster pace and stretched resources is having an impact on the quality of legislation.

"This is concerning given the number of times we are seeing government legislation being criticized or struck down by the courts," he said. "Maybe we are seeing the results of counsel not having enough time to undertake thorough analysis. It is not enough for laws to be popular — they have to respect the charter. The government is not interested in better options — only their own solutions."

Other highlights of the report:

- The fast-paced policy environment leaves limited time to consult within and outside the section, and some client departments and jurisdictions expressed concern they are not always consulted in a timely manner.

- A lack of minutes and records for meetings can result in misunderstanding or differing recollections of meeting outcomes.

- Multiple lines of evidence indicated the demanding work environment is beginning to have a negative impact on staff morale.

- Lawyers are dealing with additional workload from more private member's bills.

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