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3.  FINDINGS

(continued)

3.5  Ensuring the Opportunity for Quality Control

Ultimately, the efforts of the revisors and jurilinguists are directed to ensuring quality in the Government's legislation.  Their role is to assist drafters to achieve the highest possible quality of structure, form, and linguistic expression in both French and English texts.  Skilled editing and linguistic assistance can make important contributions in the quality of the language, clarity of expression, accuracy of terms, comprehensibility of legislative language and consistency of French and English language texts.  The value of their specific contribution can be difficult to assess from a review of final texts because it is largely reflected by an absence of errors and qualitative improvements that could only be detected by a detailed review of successive drafts.

The audit found that the contribution of revisors and jurilinguists was generally well-regarded by drafters in both the Legislation and Regulations sections.  These units are recognized as making a valuable and essential contribution to ensuring the highest possible quality of legislation produced by the Branch.

The audit team was told, however, that there have been some instances in which there was a breakdown of coordination and communication between jurilinguists and the French and English language revisors working on regulations. This situation creates the risk of non-concordance between English and French texts. In some cases, the problems appeared to be due to time constraints. The audit concluded that this does not appear to be an endemic problem in the preparation of regulations and no instance was cited of problems in relation to bills. However, in view of the importance and consistency in the French and English versions of federal legislation, the audit believes that it is essential that sufficient time be allowed so that an expert comparison can be made of the French and English language texts for all draft regulations.

Recommendations and Management Response

6.

In managing the regulations preparation and approval process, the Regulations Section should ensure that revisors and/or jurilinguists have sufficient opportunity to compare and review the final drafts of regulations in both languages to ensure consistency and freedom from error. I agree with this recommendation, which is just as applicable to the Legislation Section. We took steps last year to facilitate the comparison and review of final drafts of bills and regulations in both languages. However, we need to remind drafters that they must allow sufficient time to jurilinguists to do their final comparison, and this is in the process of being done.

3.6  Consistency of Service and Quality in Satellite Offices

No specific issues were raised about the use of revisors and jurilinguists in the satellite offices.  Generally, these revisors and jurilinguists work closely with the drafters, have extensive experience, and have gained subject matter expertise that helps to ensure the drafts are of high quality and have appropriate terminology.  In the Transport Canada Satellite unit, day to day supervision of all staff is provided by a manager from the Transport Canada Legal Services Unit who also serves in a dual function as part of the Legislative Services Branch management team.  Although the audit did not detect systemic problems with consistency of service and quality in the satellite offices, it did find some concern that staff in the units could become increasingly isolated from their colleagues in the "home" unit.  Although management has taken steps to ensure that lines of communication remain open, the audit believes that continuous effort will be necessary to ensure that consistent approaches to, and standards of, service are developed, disseminated, and maintained.  This will be particularly important if, in the future, less experienced staff are assigned to satellite offices.  The audit also notes that staff in the satellite units do carry an individual responsibility to ensure that they maintain linkages and take advantage of mechanisms that will help ensure consistency in service quality.

3.7  Use of Drafting Teams

In the Legislative Section, when Cabinet has approved drafting instructions for a new bill, French and English co-drafters are always assigned to prepare the bill.  The drafters work as a team (with the revisors and jurilinguists), preparing the two texts concurrently.  The Regulations Section, by contrast, does not have a single process that is applied in all instances, although French and English drafters are assigned to most projects.  Some regulations are drafted by Regulations Section counsel from client instructions, as is the case with bills.  Many regulations are initially drafted by the client department, however, in which case the role of the Regulations Section is to review and revise.  A variety of approaches are followed in these cases, depending on the circumstances.  In some instances, the drafters review and revise the texts before submitting them to the revisors and jurilinguists.  In other cases, efforts will focus on finalizing the text in one language only after which jurilinguists take responsibility for revising the other text, but never for translating the text that was finalized first.  The version prepared by the jurilinguist is then reviewed by the other drafter.

The sequence in which the revisors and jurilinguists become involved is also highly variable.  For example, a draft regulation requiring formatting and tables may be sent directly to an revisor while a draft requiring improvements in linguistic quality or new terminology may be sent directly to a jurilinguist.  The process followed is determined by a variety of considerations, including the nature of the draft material, the workload and drafting skills of the counsel involved, and the skill levels of available revisors and jurilinguists.

The audit examined the rationale for, and operational consequences of the lack of a consistent process model for preparation of regulations.  The audit concluded that, in general, it is entirely appropriate and, in fact, desirable to utilize different approaches for completing a regulation under different circumstances.  Regulations Section requires a more flexible approach because it must respond to a greater variety of circumstances: complete drafts, drafting instructions, technical regulations, routine regulations, regulations dealing with new subject matter, regulations with technical tables and notes, etc.  Arguably, the nature of regulations also provides greater opportunity for early involvement of specialist support services provided by revisors and jurilinguists.  There are risks, however, if flexibility is carried too far.  Management oversight of the portfolio of work being handled by the Section is far more complex when such a variety of processes is used.  The audit team believes that there is considerable value in emphasizing the use of explicitly designated teams with assigned responsibilities for the different stages of the process.  This would enhance quality control and reduce the risk of errors, such as those caused by lack of final coordination between the French and English drafts.  Moreover, greater reliance on designated teams for regulations may complement the use of a peer review mechanism, as recommended in Phase I of the audit.  In adopting a more team oriented approach, the Branch can continue to rely on a flexible method for selecting and deploying staff of the various units to specific projects, as is currently the case.

Recommendations and Management Response

7.

The current practice of the Legislative Services Branch is to utilize different approaches for preparing regulations, appropriate to the particular circumstances of client departments and the nature of the regulatory texts. While this approach is beneficial, the Branch should nevertheless identify, in a more explicit way, both the team and the process model that will be followed for the project particularly when drafting from instructions. I generally agree with this recommendation. It must be recognized, however, that, given the number and huge diversity of files the Regulations Section has to handle, the flexibility of the processes we currently apply in dealing with regulations files addresses clients' needs very effectively and should remain the rule. Formality in our approaches should be minimal.

3.8  Potential of Use of Legislative

In general, the audit found a belief among drafters that a cautious approach should be adopted regarding the broader introduction of legislative paralegals.  Drafters were unsure of the benefit of paralegals, although heavy reliance on revisors by some drafters in the Regulations Section would seem to indicate that experienced legislative paralegals could assume greater responsibilities for some functions such as preparation or review of routine regulations, re-formatting, and stylistic revisions.  The audit determined that some revisors are already successfully performing the functions of paralegals in that they are carrying out legal-type work that is later reviewed by a lawyer.  This includes not only revision of draft text, but also, in those cases that are clearly identified as cases to be dealt with through the paralegal stream, a preliminary assessment of potential vires of the provisions submitted by the client.  The audit team heard concerns expressed, however, about increasing the responsibilities of the revisors, who are already pressured by their workloads.  Drafters in both the Regulations and the Legislation sections expressed concern that converting revisors to paralegals might reduce the level of valuable editing services they now receive.

Notwithstanding these reservations, the audit concluded that greater consideration should be given by Legislative Services Branch management to the potential role of paralegals.  As was noted above, the audit found that revisors and jurilinguists already perform some functions that can be considered to be "paralegal" in nature.  The audit believes that it is important to examine what additional types of tasks could be carried out by paralegals.  It has been suggested that for bills, paralegals could handle a number of functions, including:

	Explanatory notes for bills
	Consequential amendments and schedules
	Routine or template-oriented bills
	Portions of miscellaneous statute amendment bills
	Amendments to some bills

In addition, as the Regulations Section drafts more regulations from drafting instructions, the role for paralegals may increase for routine regulations or consequential amendments (although these in fact may be the type of regulation most likely to be provided in draft form by departments).  Regulations can often be more technical and detailed than statutes, so the roles of paralegals may not be the same in both sections.

The efficiencies of paralegal use will be strengthened if there is a more conscious assignment of teams, particularly with respect to regulations, and if paralegals are given explicit roles on legislative drafting teams (see above).  Paralegals may be able to play a particularly strong role in a team environment when dealing with the new pressures that the shift to increased original drafting is placing on the Regulations Section.  The role of paralegals can further be enhanced if use is made of macros and templates, as recommended earlier, to prepare routine statutes and regulations (or routine sections).

Recommendations and Management Response

8.

Legislative Services Branch Management should recognize the paralegal functions currently being performed by revisors and should review other functions to determine the appropriate additional use of paralegals. Such a review should include the development of criteria to determine when tasks should be assigned to Paralegals. I agree. We are currently working on this. We have already classified a number of legislative paralegal positions. Our processes are slowly evolving in the right direction. The heads of the Legislation Section, the Regulations Section and the Editing and Publishing Services are currently working on establishing criteria to determine what files should be assigned to legislative paralegals. Our Branch Strategic Plan also covers this matter quite adequately.

 

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