Litigation: Roles and Processes
Process Overview: Litigation
A key feature of Canada is the “rule of law” which means that governmental actions must be authorized by law. This also means that any person may challenge a Ministerial decision or a regulation or statute. This can be by way of “judicial review” (allegation that a government action lacked authority or fairness or breached Charter rights), or by a “civil action” (allegation that government action caused harm by breaching duties of care), including a “class action” (allegation that government action caused harm to discrete groups of persons).
Key litigation process steps in Courts include obligations on all parties, including Government, to explore alternative dispute resolution, to inform the Court of their substantive positions, to submit evidence to the Court or provide disclosure to other parties (and sometimes to be examined on that evidence), to submit written legal arguments, and sometimes to appear to make oral arguments at public hearings. In class actions, there is an additional procedural step of “certifying” the proposed class. Once a Court decision is rendered, any party (including Government) may seek to appeal that decision to a higher Court.
Key litigation process steps internally within Government include Governmental decisions on the Court process steps noted above. Where a range of policy options are possible in a litigation case, a final authoritative policy decision may be required by the Minister, or sometimes Cabinet or the Prime Minister. Internal Government process steps can include assessment of the legal or operational impact of pending litigation on other government programs not directly challenged, preparation of communications products, and provision of Parliamentary support.
A list of litigation of significant interest to Public Safety and portfolio partners in the next 6 months is annexed to this document.
Roles and Responsibilities: Attorney General
To ensure a whole-of-Government approach with respect Canada’s positions in Courts and litigation, Parliament has assigned responsibility for all litigation for or against the Government of Canada to the Attorney General of Canada (AGC), who is also the Minister of Justice.
The Attorney General conducts litigation on behalf of the Government and provides legal advice and legislative services to government departments and agencies. The Attorney General protects the interests of the Crown by litigating on behalf of the Crown and by providing legal advice to the Government, departments and agencies of government. This includes litigation against the Minister of Public Safety and Emergency Preparedness, Public Safety Canada (PS), or any of the Agencies for which the Minister is responsible. The Attorney General provides legal services to the government and its departments and agencies. These services include the provision of legal advice, the conduct of litigation and the drafting of legislation and regulations.
While client departments generally provide instructions to the Attorney General in civil litigation matters, the Attorney General represents the Crown and not individual departments or agencies. Therefore, the Attorney General seeks to protect interests for the whole of government when providing legal advice and conducting litigation.
Some litigation cases are purely operational, and not precedential. Such cases can involve challenges to routine departmental decisions, or challenges to departmental positions which are already well-established, and already approved by Cabinet or the Minister. In such cases, departments can simply advise Justice litigation counsel of the Departmental positions, while keeping Ministers and their offices well informed of any litigation cases likely to have significant impact on government policy, operations, finances, or communications.
Other litigation cases inherently involve major policy issues and thus can be very precedential. Such cases can involve cases alleging novel statutory interpretations, or allegations of novel tort obligations or Charter obligations. In these few rare cases, the Attorney General will seek the policy input of departments, who would likely want to seek policy direction from the Minister, or potentially Cabinet, or a Cabinet Committee or Subcommittee.
Role and Responsibilities: Ministers
With respect to Departmental or Portfolio policy, all Ministers are expected to ensure that the legal issues and risks associated with proposals being brought forward for Cabinet consideration are clearly identified and fully considered and that the proposals are compliant with the Canadian Charter of Rights and Freedoms. The Attorney General and the Department of Justice provide support to the whole of government in this regard.
With respect to litigation, there is no legal requirement that the Minister or the Minister’s Office personally give instructions in a litigation matter. Departmental and Agency officials responsible for a program are authorized to give instructions on behalf of the Minister with respect to litigation involving that program.
However, as a matter of practice, the PS Department and PS Portfolio Agencies, such as Royal Canadian Mounted Police (RCMP), Canada Border Services Agency (CBSA), Correctional Services Canada (CSC) and Canadian Security Intelligence Service (CSIS), may consult with, and seek direction from, the PS Minister and the Minister’s Office before giving instructions to Justice counsel. This is most frequently the case with respect to litigation cases with significant impact on government policy, operations, finances, or communications. In such cases, it as the responsibility of the Minister to provide policy input on the issues raised with the Minister by the Department as being required by the litigation, and to do so in a time frame that allows Justice counsel to effectively advance Government policy positions in the litigation.
Further, a Minister may give an indication of their expectations to the Department or to an Agency as to the nature of litigation cases on which the Minister would wish at an early stage to be briefed or give direction. Departmental and Agency officials responsible for a program, and the Deputy Minister or relevant Deputy Head, will respect this wish and involve the Minister and the Minister’s Office as requested.
In addition to providing instructions on the overall position to be taken by Canada in litigation, the PS Department or a PS Agency (or the PS Minister or the Minister’s Office) may also wish to review the content of significant Court pleadings in advance of their filing by Canada, for the purpose of identifying communications challenges, Parliamentary impact, or other issues.
The Courts establish fixed deadlines for filing, which must be respected. Further, Justice litigation counsel require time to draft materials to implement Canada’s position, once instructions have been provided. Internal consultation within departments, agencies, and Ministers’ Offices, must therefore respect such deadlines. Ultimately, decisions must be made within the timeframes established by the Courts.
Roles and Responsibilities: Departmental and Agency “Clients”
The AGC and Justice counsel seek the input and views of individual departments and agencies on litigation matters. In the context of civil litigation, and judicial reviews, the AGC will turn to individual departments, such as PS, or individual agencies such as RCMP, CBSA, CSC or CSIS, to act as “clients” providing instructions on the litigation approaches and positions to be taken. Most litigation involves only a single department or agency. In such a case, the relevant department or agency would act as instructing “client”, seeking direction from the department or agency’s Deputy Head and Minister as required or as requested.
Other litigation involves more than one department or agency. Here, each of the relevant departments or agencies would be separately consulted for input and direction, and each may seek direction from their own Deputy Head or Minister. Each entity might choose to send its own note to the Minister informing the Minister solely of their unique perspective. Alternatively, agencies could collaborate on a single note to the Minister, setting out the position of all relevant PS agencies. A “multi-client” matter may even involve departments or ministers outside the PS Portfolio. In such cases, each department will want to consult with its own Minister. Efforts are frequently made to provide common briefing materials.
In any type of litigation relevant to the Minister, the Minister or the Minister’s Office may consult with PS departmental staff, Agency staff and Deputy Heads, or other Ministers and their Offices, as required, in order to determine the litigation position or instructions to be advanced. Litigation strategy may further be discussed in the Cabinet Sub-Committee on Litigation Management.
Roles and Responsibilities: Criminal Prosecutions and Penal Proceedings
Criminal prosecutions and penal proceedings are initiated and conducted by the Director of Public Prosecutions pursuant to the Director of Public Prosecutions Act, which provides for independent prosecutorial decision-making free from inappropriate political or partisan control or influence. The PS Minister thus may not, personally or through ministerial staff, recommend or direct the initiation, conduct, or discontinuance of a prosecution.
Roles and Responsibilities: Ministerial Support
Given the size of the Public Safety and Emergency Preparedness Portfolio and the nature of its activities, the legal responsibilities of the Minister of Public Safety and Emergency Preparedness (Minister) are among the most sensitive and complex in the entire Government. In light of the legal complexities arising under this broad ministerial mandate, it is recommended that case-specific advice be sought from the Department and its Legal Services Unit.
- Date modified: