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1985 Report of the Auditor General of Canada

Overview

10.1 The Law Reform Commission of Canada (LRC) was established by the Law Reform Commission Act in 1971. The objective of the LRC is to study and keep under review, continually and systematically, the statutes and other laws comprising the laws of Canada with a view to making recommendations for improving, modernizing and reforming them. The LRC makes recommendations to Parliament through the Minister of Justice.

10.2 The Commission's research is organized under four major projects: Criminal Law (Substantive), Criminal Law (Procedure), Administrative Law, and Protection of Life. The Commission also performs sporadic work in the area of modernizing statutes.

10.3 The LRC consists of a President, a Vice-President and three other Commissioners, all appointed by the Governor in Council on the recommendation of the Minister of Justice. The Vice-President and the three Commissioners each has direct responsibility for supervising a specific main project; the President provides general direction to the whole program.

10.4 In 1984-85 the Commission had 47 person-years and a budget of $5 million. It also engaged consultants under contract, representing the equivalent of about 50 additional person-years. Approximately 70 per cent of LRC expenditures are for salaries and professional and special services.

10.5 The major outputs of the Commission are study papers, working papers and reports to Parliament. Study papers are prepared by the Commission to collect and collate current knowledge concerning a particular topic and contain the research leading to a working paper. Working papers are statements setting out the status of the Commission's law reform research in a given area at the time of publication, and they contain tentative recommendations for reform in that area. Their purpose is to elicit comment and provide a vehicle for public consultation. Reports to Parliament contain the final recommendations of the Commission for reform in a particular area.

10.6 Since its establishment in 1971, the Commission has produced over 60 published and over 100 unpublished study papers. This research helped to produce 34 working papers and 22 reports to Parliament.

10.7 The Commission's work covers a wide range of interesting topics in the four major project areas. For example, in the past year, the Commission presented reports to Parliament on the subjects of Writs of Assistance and Telewarrants; Euthanasia - Aiding Suicide and Cessation of Treatment; Alcohol, Drugs and Driving Offences; and Disclosure by the Prosecution. It also published working papers relating to Police Powers - Search and Seizure in Criminal Law Enforcement; Vandalism; Questioning Suspects; Homicide and Investigative Tests. Recent study papers included topics such as Pre-trial Eyewitness Identification, and Origins of Writs of Assistance in English and their Historical Background.

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Audit Scope

10.8 We examined the implementation of LRC's Research Program, project management, use of consultants, and related financial and administrative controls. We examined particularly the systems and procedures used in managing research in the areas of Criminal Law and Administrative Law. Our audit was concerned with the issues of economy and efficiency. We did not examine the quality of the research work carried out by the Commission.

10.9 We examined the Criminal Law Review Project as a case study. The Department of Justice and the Ministry of the Solicitor General participate in these projects and, therefore, our work incorporated information about their respective roles and responsibilities.

Observations and Recommendations

10.10 We acknowledge the special nature of the environment in which the Commission conducts research projects. It is a small organization relying primarily on academics and lawyers working on short consulting assignments. In this environment the emphasis is on the quality of research. While internal reviews and discussions, external consultations and other methods focus on enhancing quality, there is, in our opinion, insufficient emphasis on economy and efficiency, as shown by our findings on project management and the use of consultants.

Research Program

10.11 Section 12(1)(c) of the Law Reform Commission Act states that the Commission

shall prepare and submit to the Minister from time to time detailed programs for the study of particular laws or branches of the law with a view to making recommendations for their improvement, modernization and reform, and shall include in any such programs prepared by it an estimate of the resources that will be required to carry out any such studies and the time that will be required for their completion.
Section 18 of the LRC Act provides for the Minister to table the program before Parliament together with a statement indicating any item the Commission proposes to examine that the Minister does not approve of. The Commission submitted its first program to the Minister in March 1972 who tabled it before Parliament without reservation.

10.12 The Commission estimated three years would be needed to complete its first research program encompassing topics related to both Criminal and Administrative law. It also envisaged submitting supplementary programs from time to time relating to further specific areas requiring or inviting reform. Parliament, by requiring the LRC to submit a plan and related resources under the LRC Act and by requiring the Minister to report annually on its activity, intended that it be informed on a timely basis about the progress that the Commission made. These requirements therefore are important tools in holding the Commission accountable for the use of its resources.

10.13 Since 1972 the Commission has not revised its original research program or submitted a supplementary or a second program, despite extensive changes in its work. For example, its current major projects of Protection of Life and Accelerated Criminal Law Review were not specifically identified in its 1972 research program. Also significant delays have occurred in carrying out its research program and significantly more resources have been committed to it than were envisaged in 1972. For example, none of the estimated completion dates was met, and many of the original projects are still in progress 10 years after their originally stated completion dates. The Commission maintains that a revised or second program was not necessary because all projects, including the current ones, were within the areas generally identified in the original research plan.

10.14 In our view, the failure of the Commission to update and submit research programs periodically has been one of the reasons why its work so far has had a minor impact on legislation. Frequent updates and periodic submissions could have helped to improve the focus of the Commission's research efforts toward areas of legislative priority to the government. Only in recent years has the Commission concentrated its attention and resources on projects and mechanisms that would enable it to be more focused.

10.15 The Law Reform Commission should formally revise and update its research program to reflect its current areas of research. The revised program should specify the estimated resource requirements and revised completion dates of the proposed projects and sub-projects.

Commission's response: The Commission recognizes the need for presenting a new research program to Parliament and had already planned to do so coincidentally with the winding down of the Accelerated Review of the Criminal Code in 1986. The Commission notes the remarks concerning specifying resource requirements and completion dates and will endeavour to incorporate such forecasting in the program.

Evaluating Program Effectiveness

10.16 At the time of our audit, some recommendations from five of the Commission's 22 reports had been reflected in new or amended legislation. For example, Commission's Report 10 on Sexual Offences and Report 4, entitled Expropriation, contributed respectively to Bills C-127, an Act amending the Criminal Code, and C-60, the National Energy Board Act. Recommendations from many other reports were included in bills that died at the end of various sessions of Parliament. For example, several proposals in Bill C-19, an Act to Amend the Criminal Code, tabled by the government in 1984, included work from several Commission's Reports on the subjects of the Jury, Theft and Fraud, Contempt of Court, Alcohol, Drugs and Driving Offences, and so on.

10.17 The Commission, however, is not satisfied with its impact on legislative changes and readily acknowledges its modest record in comparison with that of other law reform commissions both inside and outside Canada. It explains, however, that while other law reform commissions mostly do work referred to them by their attorneys general, the LRC, because of its statutory independence, establishes its own programs and has not been asked by the Minister of Justice to carry out specific research activities. Therefore, the Commission's areas of research and study often have not been high priority areas for government legislative agendas.

10.18 The Law Reform Commission of Canada points out that new or amended legislation resulting from its recommendations is only one measure of its success and usefulness. It states that the impact the Commission has on judicial decisions, many of them by Appeal Courts including the Supreme Court of Canada, and the influence it has on law reform through research, education and changing public conduct are also important results, albeit some of them difficult to measure.

10.19 In its 1984 annual report to Parliament, the Commission identified as an achievement its impact in various areas of legal thought and practice. It is not clear, however, whether this impact was in line with the objectives of the Commission. If this impact was an objective of the Commission, then the degree to which it has been achieved has not been measured. In our opinion, as the Commission is nearing the completion of its first research program, it could benefit from an evaluation of program effectiveness. This would also enable it to clarify its objectives, help focus its activities, identify performance indicators and help establish performance targets.

10.20 The Law Reform Commission should carry out an effectiveness evaluation of its program.

Commission's response: In June 1985, Bill C-18, which contains recommendations from five different Commission reports, was enacted. This brings to 10 the total of Commission reports that have been acted on in whole or in part. Performance in the Commission's primary objective of making recommendations to Parliament is readily indicated in the number of its Reports, and its achievements in its secondary objective of influencing judicial decision-making are recorded in a cumulative record of such cases. Performance in public information and in influencing the teaching of law can be measured to a degree, but an accurate evaluation of the effectiveness in those objectives is difficult. The Commission recognizes the need to develop performance indicators for the longer-term objectives and will seek improvements as its resources allow.

Project Management

10.21 The Commission's work is currently divided into four major projects -- Criminal Law (Substantive), Criminal Law (Procedure), Administrative Law and Protection of Life. Each of these is divided into sub-projects or topics on which a number of research consultants work under contract.

10.22 The Commission has managed many research and study sub-projects conducted by outside consultants. Research work on topics such as Crimes Against the Environment, Corporate Criminal Liability, Offences Against Safety and Security of State, and so on, each represents a sub-project. However, the Commission still has not developed a system and a methodology that would provide for the use of at least minimum project management standards and the application of consistent project management procedures and discipline. These project management tools need to be identified in the context of the Commission's operations and environment, and their use would improve the accountability of the consultants and the co-ordinators for their projects. A project management guide or a directive would be a useful starting point for this purpose.

10.23 Our audit revealed that there is little documented guidance or direction given to project co-ordinators for:

    - identifying and assessing potential sub-projects;
    - documenting sub-project proposals and plans;
    - approving sub-project proposals and plans;
    - resourcing sub-projects (dollars and research personnel);
    - setting priorities for undertaking and completing sub-projects;
    - monitoring and controlling sub-projects;
    - reporting the status of sub-projects; or
    - providing evaluation and feedback.
10.24 The absence of specific direction leads to inconsistencies and a lack of understanding by the co-ordinators as to what is expected of them. In general, we noted a lack of clear project management accountability. Examples of some of the most common deficiencies are:

    - Research objectives stated in contracts are vague; for example, "legal research in the field of administrative law". The Commission explains that it is so by choice, because it gives the LRC more flexibility in respect of work assignments. In our opinion, vague research objectives and a lack of detailed workplans do not permit the Commission to monitor and control the work of consultants or evaluate their performance.
    - Workplans are not always prepared for sub-projects. This was especially the case in the Administrative Law Project. For the Criminal Law Review Projects, some were prepared, but they lacked detailed tasks and resource plans.
    - Individual sub-projects do not have budgets nor is a record maintained of the resources devoted to specific projects or sub-projects.
    - There is a lack of firm commitment to deadlines and no requirement to account for variations. Monthly schedules of deadlines have shown frequent changes.
10.25 The Law Reform Commission should develop an appropriate guide and methodology for project management to ensure better planning, monitoring and assessment of its projects and sub-projects.

Commission's response: The Commission recognizes a potential for improvement in project management and will investigate the possibility of developing a more formal methodology and guide to the extent that current resources permit.

Use of Consultants

10.26 All the research on legal matters carried out by the Commission is conducted by consultants under contract. The consultants work under the direction of project co-ordinators who are also consultants working under longer-term contracts. Each of the four project co-ordinators reports to a Commissioner for the project and to the Commission Secretary for administration purposes. Annually, the Commission uses the services of about 100 different consultants, many of whom come from Canadian universities. The cost of these research contracts is approximately $1.5 million. This is a major expenditure for the Commission.

10.27 In accordance with section 7.2 of its Act, the Commission can engage the services of consultants and, with the approval of the Minister of Justice, fix and pay their remuneration and expenses. In 1971, the Deputy Minister of Justice concluded that the Commission is not an agent of the Crown and that, because of this, the Government Contract Regulations do not apply to contracts entered into by the Commission.

10.28 We reviewed a sample of the files of 20 consultants to assess the Commission's process for selecting and hiring consultants as well as its method of monitoring and assessing their performance.

10.29 In relation to contract administration, the role and responsibilities of the Administrative Committee, comprising the President, the Vice-President, the Secretary and the Director of Operations, are not documented. The Commission has also not documented its contracting procedures. Nor are its minimum expectations for project co-ordinators and Commissioners set out regarding:

    - documentation required when recommending a consultant;
    - development of objectives or workplans for a consultant's assignment;
    - establishment of timetables and deadlines; and
    - assessment of performance.
10.30 The lack of documented procedures and guidelines has resulted in deficiencies in the contracting practices of the Commission. For example:

    - Justification for choosing a particular consultant or a researcher is not documented. In the absence of tendering, this would be a necessary procedure to ensure reasonableness of a particular choice.
    - Most contracts do not include specific objectives or require the development of workplans.
    - No formal assessment of the contractor's performance is on file. Evaluations of contractors' performance, as well as serving as an essential feedback mechanism, can lead to improvements in the selection process.
10.31 The Law Reform Commission should document its contracting procedures, the terms of reference of the Administrative Committee in respect of contracting, and its minimum expectations from project co-ordinators and Commissioners in relation to procedures to be followed in employing consultants.

10.32 The Law Reform Commission should ensure that consultants are given specific assignment objectives and workplans and that their performance is assessed.

Commission's response: The Commission agrees to the merits of recording in documentary form the procedures it employs for contracting, including the terms of reference of the Administrative Committee and the roles of the project co- ordinators relative to employing consultants.

The Commission agrees that it is desirable that all consultants be given specific assignment objectives and workplans, but notes it is difficult to do so in advance and that such a procedure would inhibit flexibility in re-assigning consultants at the Commission's discretion. The Commission prefers to remain selective as to the degree of specificity to be incorporated in work statements and in contracts. The Commission will study the feasibility and potential value of a formal performance assessment of consultants.

An Audit of Management Procedures of the Criminal Law Review

10.33 Our audit of the Criminal Law Review formed part of the comprehensive audit of the Law Reform Commission. However, in the interest of providing a rounded picture of the Review, we also audited the processes and management systems used by the Department of Justice and the Ministry of the Solicitor General in the Criminal Law Review. This chapter, therefore, incorporates some information about their participation in this project.

10.34 The purpose of the audit was to assess the appropriateness of the processes followed by the three organizations in carrying out the Criminal Law Review Project and in attempting to achieve its objectives.

10.35 We did not audit the appropriateness or quality of the research or draft legislation produced by the project.

History of the Criminal Law Review

10.36 The Criminal Code of Canada was first approved by Parliament in 1892. By 1938, the Archambault Report recommended undertaking a complete revision to the Code. In 1947, the Criminal Law Section of the Commissioners on the Uniformity of Legislation called for the establishment of a commission to revise the Criminal Code. A Royal Commission was appointed in 1949 and its work resulted in the Criminal Code of 1955. However, the Royal Commission's mandate was limited to a review of the organization and format of the Code, rather than its substance. In 1969, the Report of the Canadian Committee on Corrections (the Ouimet Report) recommended that a Committee or a Royal Commission be established to examine the substantive aspects of Criminal Law.

10.37 The Criminal Law Review began in 1971, when Parliament enacted legislation establishing the Law Reform Commission of Canada to keep under review the federal laws of Canada, with a view to making recommendations to improve, modernize and reform them. In 1976, the Commission published a report called "Our Criminal Law" which was a major philosophical examination of the basis of criminal law in Canada.

10.38 In a report tabled in the House in 1977, the Parliamentary Subcommittee on the Penitentiary System in Canada called for a fundamental reform of the criminal justice system. In October 1979, the federal and provincial ministers responsible for criminal justice agreed that an accelerated review of criminal law encompassing substantive law and procedure should be undertaken. On 27 November 1980, the Minister of Justice announced that he was setting in place a mechanism for the review of the criminal law that would expedite the enactment of a modern Canadian Criminal Code and amendments to related federal statutes. In June 1981, Treasury Board approved additional resources for the Review.

10.39 The Review was planned as a joint undertaking by the Department of Justice, the Ministry of the Solicitor General and the Law Reform Commission of Canada, with close working relationships with the provincial and territorial governments. In April 1981, the Law Reform Commission began to implement a workplan with a target for completing its share of the research work on the Review by September 1985. The target date for completing the Criminal Law Review is October 1986.

10.40 The overall management of the Criminal Law Review is the responsibility of an Executive Committee chaired by the Deputy Minister of the Department of Justice and including the Deputy Solicitor General and the President of the Commission. The Executive Committee is to monitor work progress and make recommendations on policy issues and options requiring ministerial approval. The Committee has delegated many of its responsibilities to a Program Management Group which has the Assistant Deputy Minister, Policy Programs and Research (Department of Justice) as chairman and includes the Assistant Deputy Solicitor General and the co-ordinators for this project, representing all three organizations. These co-ordinators have specific responsibilities for planning, controlling and co-ordinating activities in specific project areas. They and the Assistant Deputy Ministers and Commissioners to whom they report are the principal managers of the Criminal Law Review.

Constraints in a Review of the Criminal Law

10.41 A comprehensive review of the Criminal Code, both in form and substance, is a complex and difficult undertaking. If a coherent approach is to emerge, it requires the dedicated work of a number of legal scholars and experienced practitioners over several years. This work has to proceed in a context of several separate jurisdictions, differing interests, and changing political priorities. In addition to the inherent difficulties of the task, other problems of planning, controlling and co-ordinating have been created by the fact that the Criminal Law Review is a joint venture of three organizations.

Present Status of the Criminal Law Review

10.42 When the accelerated Criminal Law Review was begun in 1981, the operational objectives of the Review, as compared with its general intent, were not stated with precision. The objectives of the Review, as stated in November 1980, were broad statements that provided little specific guidance to the parties involved. The objective of the Review is defined only in so far as it will produce a substantive new Code comprising a general part (principles) and a special part. This Code may have a procedural part, or there may be a separate procedural Code. There may be other major pieces of law reform (in "corrections" or "clemency", or "sentencing", for example) produced in association with the new Code. In the absence of operational objectives, it is difficult for those responsible to determine whether the work completed and under way is adequate to produce the expected, although still undefined, final product of the Review. Many of the projects listed in the 1981 workplans will not be complete before the first draft of a new Code is written in 1985. For example, on 24 of the 34 projects in Substantive Law to be prepared by LRC much work remains to be done. Of the 34 projects, work on about 15 is in early stages or has not started. However, staff at the Law Reform Commission inform us that these remaining projects are, on the whole, less difficult and less important than those now completed. Also, in April 1985, of the 21 Procedural projects, work on 17 was in early stages or had not begun.

10.43 It is unlikely that the Criminal Law Review, as set out in the 1981 plans, will be completed by the revised target date of October 1986, given the present status of the Review and the work remaining to be done. Many of the sub-projects in the Review were first identified in the 1972 research program of the Law Reform Commission and have therefore been "active" for a long time. It is important that greater momentum be achieved to bring this work to completion.

10.44 The Law Reform Commission and the Department of Justice should revise and set a realistic completion date for the Criminal Law Review and should develop a stringent timetable and workplan to ensure that the Review is completed by the revised date.

Commission's response: The Law Reform Commission will co-operate in any review of the timetable and workplan for the Criminal Law Review.

Justice response: The Department of Justice will co-operate with the Law Reform Commission and the Ministry of the Solicitor General in any re-evaluation of the timetable and workplan for the Review. This should be done in the context of the Executive Committee (see infra para. 10.54). It must be recognized that any decisions respecting the timetable for phases 2 and 3 of the Review (see infra paras. 10.46-10.48) are subject to legislative and other priorities as set by the Government from time to time.

Accountability of the Management of the Criminal Law Review

10.45 One of the main areas of interest in this audit of the Criminal Law Review was whether management accountability for the work of the Review had been established and maintained. There are two aspects of this that are particularly important in a complex interdepartmental endeavour:

    - work planning and scheduling; and
    - control and monitoring.
10.46 Work planning and scheduling. The three organizations involved in the Criminal Law Review in 1981, agreed that each project in the Review was to be undertaken in three phases. Phase 1 was to consist of research and deliberations by the Law Reform Commission, culminating in a working paper on each major topic, consultations, and finally a report to Parliament with recommendations.

10.47 Phase 2 was, in the great majority of projects, to be the responsibility of the Department of Justice, comprising a detailed analysis of each recommendation in the Law Reform Commission reports, formulating a suggested course of action for the government (including specific proposals for further work in areas where a report was considered deficient), and a consultation program.

10.48 Phase 3 was left vague. It was described as the "implementation stage" that could result in legislation, program development, revised administrative arrangements, or revised procedures. Drafting legislation, where appropriate, was to be primarily the responsibility of the legal drafting experts at the Department of Justice, supported by the full analytical and decision-making capabilities of the Department.

10.49 The phased approach to the Review applied not so much to the Review as a whole as to each of the topics. That is, at any particular time, some projects in the Review might be at Phase 1, some at Phase 2, and some at Phase 3.

10.50 The workplans for Phase 1 developed by the Law Reform Commission, and those developed for subsequent phases by the Department of Justice and the Ministry of the Solicitor General, have had common limitations. Specifically, they have listed research topics and milestones for various products, but they did not include either detailed terms of reference for the work to be done or detailed tasks and resource requirements.

10.51 A complex research-based endeavour such as the Criminal Law Review has uncertainties and requires a flexible workplan. However, lists of project titles with target dates, unsupported by any detailed task and resource analysis, do not constitute adequate project planning. To proceed without adequately detailed work planning is to ensure misunderstandings and delays at later dates and additional costs.

10.52 The organizations involved in the Review have not applied the project management practices necessary to plan and manage an interdepartmental research, consultation and drafting effort of this duration and complexity. The workplans for the Criminal Law Review provide limited support to an interdepartmental project of this size and complexity. For example, milestones and deadlines set out in various workplans have not been firm and accountable commitments, and have been changed frequently. Therefore, management of the Review as a whole has suffered, and interdepartmental co-ordination of work activities has been difficult.

10.53 The parties involved in the Criminal Law Review should engage the services of an expert in research project planning to assist the Criminal Law Review Co-ordinators in developing a detailed plan, including tasks, resources and timetables for the remainder of the Review.

Commission's response: The Commission is prepared to consider proposals for preparation of detailed project plans for the remainder of the Accelerated Review of the Criminal Code, subject to its current budgetary constraints.

Justice response: The Department of Justice will give active consideration to this recommendation to see what could be gained by its acceptance. However, it challenges the finding that this Department's phase 2 workplans were ill-defined or that its schedules were subject to capricious change. The Auditor General has not indicated what standard he is using to assess the workplans of the Review. Standards for project administration vary according to the environment in which they operate. The Auditor General has not explored that environment in this Report; therefore, he cannot say that a change of administrative procedures would improve the quality of the product, or lead to greater satisfaction by the groups consulted, or reduce the cost of the Review. On the question of schedules, any changes in project timetables by the Department have been due primarily to delays in receipt of working papers and reports from the Commission on the one hand, or to decisions with respect to legislative priorities of the Government on the other.

10.54 The Executive Committee should formally approve milestones and deadlines for the Review.

Justice response: See response to paragraph 10.44.

10.55 Control and monitoring. The overall management of the Criminal Law Review is the responsibility of the Executive Committee established for this purpose. However, the Committee has delegated many of its responsibilities to the Program Management Group described previously, and the Committee has met infrequently.

10.56 There has been no detailed statement of the roles, responsibilities and procedures for either the Executive Committee or the Program Management Group. Informal communications and procedures may have filled this gap to some extent, but they have not solved the problem of providing overall planning, direction and control to the Review.

10.57 In addition, there is a lack of formal decision-making procedures in both groups. The Committees have functioned more as focal points for discussion than as decision-making groups. The Review is guided by general discussions at Committee meetings.

10.58 Month to month, the most important management roles in the Criminal Law Review are those of the Co-ordinators. The Co-ordinators cannot determine the overall policy direction of the Review or the overall level of resources, but otherwise they are in control of detailed work planning and management. Their capabilities as managers and their ability to work together are central to the success of the Review.

10.59 In conducting this audit we heard mutual criticism among the staff of the organizations involved. There was also little day-to-day working contact. Some mechanism for reflecting joint responsibility and some greater incentive for the staff in the three organizations to work together in mutually supportive ways are required.

10.60 The Department of Justice was designated as the lead agency for the Criminal Law Review. The Minister of Justice, in close collaboration with the Solicitor General and the Law Reform Commission of Canada, was designated to have overall responsibility for the management of the Review.

10.61 There is some ambiguity to this lead role by Justice, because the Law Reform Commission is autonomous and reports direct to Parliament. Also, in its main areas of responsibility, the Ministry of the Solicitor General is autonomous. The Department of Justice, therefore, has no authority to compel compliance to any decisions of the Executive Committee or workplans by other members of the Review.

10.62 Despite these uncertainties and ambiguities regarding the lead role, we believe that the Department of Justice has an important responsibility to provide overall management and direction to the Review. So far, the Department has not actively pursued this lead role. Specifically, the Department of Justice has provided insufficient interdepartmental work planning and monitoring of progress in support of the Executive Committee of the Criminal Law Review. Unless the Department assumes its responsibility, management of the Review will continue to be uneven and effective overall control will not be established.

10.63 The Department of Justice should actively pursue the lead role in the Review, through the Executive Committee, and should have primary responsibility for the successful and prompt completion of the Review.

Commission's response: The Commission has always recognized the leading role of the Department of Justice in the overall Accelerated Review of the Criminal Code.

Justice response: The Department of Justice accepts that it has the lead role with respect to the ultimate presentation to Parliament of a new Criminal Code or amendments to the existing Code. It has not interpreted this lead role as including responsibility for the overall workplanning and monitoring of the Review as suggested in paragraph 10.62. As noted in paragraph 10.61, the Department of Justice "has no authority to compel compliance to any decisions of the Executive Committee or workplans by other members of the Review". The Department, therefore, cannot accept responsibility for the "successful and prompt completion of the Review". It is, however, willing to assume a more active role in terms of attempting to coordinate the activities of the members of the Review.

The Basis for a New Code: Policy Development and Empirical Research

10.64 In 1981-82, proponents of the Criminal Law Review claimed that several policy development and empirical research projects were necessary before a coherent new Code could be drafted. By March 1985, a number of policy development projects had been completed, but many others scheduled for completion by this stage remained unfinished. Hardly any empirical research projects had been completed in support of the Review.

10.65 In 1981 the Department of Justice identified several empirical research topics that staff believed were necessary to provide a solid basis for the Criminal Law Review. A funding request was made in the Multi-year Operational Plan and in a document dated 8 March 1982, "Research in Support of the Review of the Criminal Code". The resources requested for the four years 1982-86 ranged between $1 million to $2 million for each year. The empirical research plan included many topics in criminal procedures and sentencing.

10.66 The proposal was aborted before presentation to Cabinet. Reasons for this included the cost, the belief that the research could not be completed in time to influence the Criminal Law Review, and LRC's lack of inclination to be involved.

10.67 There are differences of opinion about the importance of empirical research in support of the Criminal Law Review. However, those who believe that such research is necessary hold the opinion strongly. The original discussion paper for the Review stated that, without such research the whole process of the Code Review could be criticized, and the proposals for change in law could be seen as capricious. It also noted that the changes could lead to undesirable effects, with consequent public disaffection from law reform and related political processes.

10.68 In March 1985, many policy development, and most empirical, research projects originally proposed as essential to the Review had not been completed.

10.69 In summary, there has been no clear agreement on how much policy development and how much empirical research on reform of the substance and procedures of the Criminal Code needs to be completed before the drafting of a new integrated Code can proceed successfully.

10.70 The Executive Committee for the Criminal Law Review should re-assess the empirical research requirements of the Review.

Commission's response: The Commission has seen no need for empirical research in phase I of the Accelerated Review. However, it is prepared to participate in a re-assessment of the requirement for empirical research in the later phases.

Justice response: The Department of Justice concurs in this recommendation.

Consultations

10.71 The Criminal Law Review has consisted of two main activities: writing policy and working papers, and consulting on these papers.

10.72 Consultations have been conducted by all the organizations involved in the Review. The Law Reform Commission and the Department of Justice have convened meetings in different locations in Canada to discuss one or sometimes several of the papers produced by the Commission. The Ministry of the Solicitor General has participated in these discussions, and, in the case of the Correctional Law component/sub-project, distributed a "consultation paper" to individuals and organizations together with a letter asking for written comments.

10.73 Our observations on the consultations are as follows:

    - There are no specific guidelines for the consultation process that have been approved by the Executive Committee or the LRC.
    - The overall planning of consultations for the Review has been inadequate. The planning of consultations has been informal or non-existent. There is no master plan, and individual consultation plans are not routinely or consistently monitored to ensure that they were executed and that benefits from such consultations were fully realized.
    - The lack of co-ordination of activities has led to some duplication of consultations.
10.74 The Executive Committee should require that an overall consultation plan be drafted, should approve a set of guidelines for consultations, should approve a specific proposal and plan for each consultation exercise, and should receive a report on the conduct and results of the exercise once it is completed.

Justice response: One of the first things that the Executive Committee did was to identify those groups that should always be consulted and other groups that merely should be kept informed of the progress of the Review. Therefore, general guidelines for consultations have, in fact, been established. Given that the mandate of the Executive Committee is "to monitor work progress and make recommendations on policy issues and options requiring ministerial approval" (see supra , para. 10.40), it is questionable whether the Executive Committee should become involved in approving specific proposals and plans for individual consultations. This is surely the responsibility of the Program Management Group which is charged with the day-to-day administration of the Review. Contrary to the finding on which this recommendation is based, the Program Management Group does examine consultations strategy in some detail for each project. A report on the consultations is received as a background document to any recommendations emanating from phase 2 of the Review.