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The Federal Prosecution Service DESKBOOK

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Part XII
NEW POLICIES
Chapter 55

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55 LEGAL RISK MANAGEMENT

55.1 Introduction

In 2000, the Department of Justice and Treasury Board jointly launched the Legal Risk Management (LRM) project in response to the growing volume, complexity, and cost of litigation against the Crown. Its objectives are the detection, avoidance, mitigation and management of legal risks.¹

In the criminal context, managing risk is not simply about avoiding negative financial consequences. It is something that we have always done, in that we have recognized the potential impact of individual cases may be far-reaching, and must be managed so as to ensure public safety and maintain public confidence in the administration of justice. In addition, “The Decision to Prosecute” policy² requires that considerable care be exercised before charges proceed, so risk is also managed through the judicious exercise of prosecutorial discretion. The more formal processes contemplated by the LRM initiative assist the FPS in demonstrating to the Attorney General how we are managing risk in our most contentious cases.

55.2 Purpose and Scope of the Policy

This policy has three main objectives:

1. enhancing the accountability of the Federal Prosecution Service to the Attorney General³, to the government as a whole, and to the public;
2. giving guidance as to how to identify and manage risks; and
3. identifying the roles and responsibilities of members of the FPS in the LRM project.

Simply put, the policy is primarily aimed at avoiding unwelcome events, and mitigating the harmful consequences when they do occur. It also helps with planning by enabling us to develop consistent positions, manage important issues effectively, and identify trends.

The policy applies both to advisory work, including the provision of pre-charge advice to investigative agencies that assists them in minimizing risk⁴, and to litigation, where it seeks to avoid negative outcomes and manage them effectively.

55.3 The Process of Risk Assessment

55.3.1 What is a Risk Assessment?

A risk assessment is a legal assessment about the possible consequences of a given prosecution. It involves assessing the potential impacts of the case, including potential impacts on the law (e.g. the constitutionality of a law), potential impacts on prosecutorial or investigative agency operations, and the possible costs involved. The assessment will be used by managers in allocating resources and making other choices to minimize potential risks.

55.3.2 What distinguishes Risk Assessment from Deciding Whether to Prosecute?

Risk assessment is about measuring potential impacts, not outcomes. Assessing the likely outcome is one of the considerations for determining whether there is a “reasonable prospect of conviction” under the “Decision to Prosecute” policy⁵. Pursuant to that policy, all cases are assessed pre- or post-charge to determine whether the evidence is sufficient to warrant prosecution, and a prosecution is in the public interest. This exercise is fundamental for every file, and is done before LRM. LRM is directed at measuring the risk of potentially adverse impacts so that they can be effectively managed.

There is no necessary interrelationship between the two types of analysis, as shown by the following examples. First, Crown counsel may reach a point in a prosecution where it is reasonable to believe that a trial judge will exclude crucial evidence through a mistaken view of the law, resulting in an acquittal and necessitating an appeal. The “reasonable prospect of conviction” analysis would remain constant, but the level of risk would have risen as the case progressed. However, if in the same scenario the evidence was to be excluded because certain Crown witnesses no longer appeared to be credible, Crown counsel may feel not only that the risk assessment had changed, but that there was no longer a reasonable prospect of conviction or that the public interest demanded discontinuing the proceedings.

Second, a judge may make a ruling in the course of a trial that has a potentially large impact on the law or the investigative agency’s operations. While the prospect of such a ruling may increase the level of risk, the ruling itself may have no appreciable impact on the prospect of conviction in that case. Thus, if during the course of a trial a challenge is brought to the constitutionality of legislation concerning production orders, the overriding concern is not that the evidence might be lost in the specific case, but that an investigative tool may be lost.

It is important to stress that, particularly with criminal law, the legal risk issue will often relate to the impact of the ruling on other cases, as opposed to the legal impact on the specific case.

LRM and “decision to prosecute” analyses are similar in one important respect: both are ongoing processes that require re-assessment when circumstances change.

55.3.3 When do we Assess Risk?

Risk is assessed at the time a file is opened and after any development in the file that may affect the original assessment.

55.3.4 How do we assess risk?

Files opened in the Department’s “iCase” case management system require an assessment of: a) their complexity; b) their level of risk; and c) the potential impact on “clients” (usually the investigative agency). “Complexity” and “risk analysis” are not synonymous, since not all complex files are necessarily risky. Initial assessments of both complexity and risk may be entered on the system by paralegals or other trained individuals. Counsel must review those assessments when the file is assigned to them.

Risk is treated in iCase as existing along a continuum and assigned a numerical value between 1 and 9, 1 being the lowest risk. There are three categories: “minor risk”, consisting of levels 1-3, “moderate risk”, being levels 4-6, and “significant risk”, levels 7-9. Two factors must be considered: the probability of receiving an adverse ruling, and the impact if that ruling should occur.

Cases that are properly categorized as “significant risk” are the focus of the LRM initiative: reports are generated based on that assessment, and the information required by iCase is more extensive. Counsel’s judgment is essential to the process. Identifying “significant risk” cases requires consideration of the following criteria:

a) Significant legal risks

The key identifiers of legal risk are:

• cases which will have an impact on international relations;
• cases that will have an impact on federal/provincial/territorial relations;
• cases that will have an impact on a federal policy or program;
• cases in which the constitutionality of a federal statute or a common law rule is at stake;
• cases in which police operations may be significantly affected, as where an investigative technique is being challenged; and
• cases in which issues are raised which may affect public confidence in the administration of justice.

b) High cost cases

High costs can refer to the cost of litigation itself for the Department of Justice or other government departments, or costs related to the litigation that might be borne by others within the administration of justice (e.g., the building of a specialized courtroom). The key identifiers are:

• megacases⁶;
• cases in which a court is likely to, or does, order state funding for the defence;
• complex cases or cases involving the interests of several government departments, for example, those in which aboriginal treaty rights are to be litigated;
• any other case in which the costs of prosecuting can reasonably expected to be unusually high, or consume a disproportionate share of a regional office’s resources, or the resources of the investigating agency or government department.

c) High visibility cases

The key identifier here is:

• an unusually high level of media interest, which will significantly increase the desire of senior officials to be promptly informed of developments and may result in questions being posed to the Attorney General in the House of Commons

Not all of these cases will be considered to be “significant risk”, but they are likely to trigger reporting obligations.

d) National Security cases

All of these cases will be regarded as high risk cases.

Given the foregoing, the type of cases most likely to fall into the “significant risk” category includes the following:

• megacases;
• Supreme Court of Canada files;
• challenges to the constitutionality of legislation or programs;
• aboriginal rights cases;
• international assistance files that affect our ability to meet treaty obligations;
• prosecutions against the Crown (“R. v. R”);
• major tax evasion prosecutions that threaten Canadian Revenue Agency programs;
• appeals that raise an important question of law;
• national security matters (including s.38 Canada Evidence Act cases);
• cases where funding orders have been made;
• cases in which the Attorney General’s consent to prosecute is required; and
• cases that involve a Minister or senior official (including foreign officials).

55.4 Contingency Planning

For “significant risk” FPS cases, counsel may be required to prepare a “Contingency Plan”. The purpose of such a plan is to ensure that counsel has assessed the likelihood of an adverse impact and has a plan to manage any potential adverse effects, so that the level of uncertainty is kept to a minimum.⁷ It demonstrates a professional approach to case management by supporting the Attorney General/Minister of Justice and other government actors.

Contingency plans, though exceptional, will usually be required in the following circumstances:

• where a constitutional challenge to federal legislation, if successful, may compromise public safety;
• where a constitutional challenge to investigative powers may compromise effective law enforcement;
• where a constitutional challenge, if successful, may compromise Canada’s ability to meet our international obligations;
• where there is a high probability of legal or other risks materializing (e.g., cases involving large costs, cases which receive extensive media or Parliamentary scrutiny).

Not every case raising a constitutional challenge will require a contingency plan. Some challenges, even if successful, may have little impact; other challenges may be frivolous or unlikely to proceed.

A template for the preparation of a Contingency Plan is included as Appendix “A” to this policy. The plan includes a critical path, which describes who will do what, and when, to ensure that there is a fully coordinated response to adverse decisions. The plan will often include a communications strategy.

A Contingency Plan requires approval by the appropriate FPS manager, who forwards the approved document to the ADAG (Criminal Law), who in turn forwards the approved document to the Minister or DM’s office, and to the office of the Special Counsel, Legal Risk Management. Copies of the approved plan must be distributed to all persons relevant to fulfilment of the plan.

55.5 Roles and Responsibilities

LRM is an integral part of our business. All employees are responsible for knowing and applying the LRM principles and methods appropriate to their particular areas of responsibility.

55.5.1 Role of the ADAG (Criminal Law)

The ADAG (Criminal Law) has functional responsibility for prosecutions.⁸ Because of this, the ADAG needs to be aware of the significant cases within the portfolio, and LRM is an important tool in informing the ADAG about these cases. Thus the ADAG is responsible for ensuring that LRM principles and methods are appropriately implemented by managers and Crown counsel. This is a key obligation owed by the ADAG to the Deputy Minister. It involves:

• ensuring roles and responsibilities are understood within the organization;
• keeping abreast of all significant risk cases within the FPS;
• informing and engaging senior officials, including Ministers, on significant risk cases and key LRM issues;
• identifying and analyzing government-wide trends; and
• encouraging the use of appropriate instruments, including alternative dispute resolution

It is essential that the ADAG be made aware of the existence of significant risk cases, and any developments in those cases that might make a bad outcome imminent. The following sections detail the responsibilities of FPS managers and counsel in making sure the ADAG has the necessary information.

55.5.2 Role of FPS Directors/Managers

FPS Directors must ensure that cases are properly evaluated according to the level of risk they entail, and that a monthly Significant Risk Report is prepared and sent to headquarters in which cases are identified.⁹

The Significant Risk Report is the Department’s primary tool for LRM, and is intended to be a comprehensive guide to significant risk litigation to which the FPS is a party. The report is written in layperson’s language and gives a succinct summary of the essential information in the case, including descriptions of: the type of risk; the level of risk; the government departments or agencies potentially affected; and the management strategy for dealing with the risk.

The Report is subject to ongoing review, so that the ADAG (Criminal Law) can remain accountable for all litigation involving the FPS. FPS Directors are accountable to the ADAG (Criminal Law) for its preparation. Directors may rely on their local litigation committees for assistance in identifying cases that are truly “significant risk”.

At the discretion of the Senior Regional Director, reports may also be prepared on cases of moderate risk, in order to capture cases that may be complex or resource-intensive, for example.

55.5.3 Role of Crown Counsel

Crown counsel have the obligation to assess the risk of a case. The intention of the LRM initiative is that proper assessment of the file will reduce the reporting burden on counsel, since the information will be simply extracted from iCase by their managers and others to fulfil reporting obligations, especially where Crown counsel may be unavailable. Crown Counsel’s primary obligation is to ensure that the “Background”, “Impact” and “Status” fields in iCase are completed and updated on a regular basis for all “moderate” and “significant” risk cases. Fulfilling this obligation is an essential means by which the FPS is accountable to the Attorney General.

Any development in that case which brings it into, or takes it out of, the “significant risk” category must be promptly noted. Because the LRM will be used for varied purposes by a broad audience, the iCase information is to be entered in clear and simple language, while ensuring the legal issue is adequately described.

55.5.4 Role of the Special Counsel, Legal Risk Management

Though not a member of the FPS, the Special Counsel, LRM occupies an important position in the Department’s LRM initiative, and FPS Counsel should be aware of the Special Counsel’s responsibilities.

The Special Counsel provides functional operational leadership for LRM in the Department and serves as a key point of contact across the Department. The Special Counsel reports and provides support to the ADAG (Civil Litigation), and reports functionally to the Associate DM with responsibility for LRM. The LRM Special Counsel plays a challenge function with Portfolio Heads and others to ensure that LRM is being effectively carried out. This includes ensuring that contingency planning is undertaken in appropriate cases, and managing responses to legal risks that materialize.

The LRM Special Counsel attends the Deputy Minister’s daily meeting as the key point of contact on LRM information, is a member of Litigation Committee and chairs the Thursday Morning Group, a committee which looks at upcoming matters. The LRM Special Counsel has a direct relationship to the DM Team Secretariat on LRM.

The LRM Special Counsel is supported by a counsel, a paralegal and support staff.

55.6 Identification of Trends

One of the key goals of LRM is to identify emerging prosecutions and issues that may require an FPS role. Identifying legal trends and issues may allow for more effective long-term planning, rather than managing the issues on an ad hoc basis. For example, it can enable a more effective alignment of resources and needs, identify the need for legislative change, and highlight the need for new prosecution policies or practice notes.

Identifying trends is particularly important where issues emerge in litigation which transcend portfolio boundaries, e.g. where there are both civil and criminal components to the litigation, or in regulatory prosecutions where the interests of a number of government departments may be affected. It will also arise where the issue could mean a significant new or increased financial commitment for the government, e.g., the state funding of the defence.

55.7 Appendix “A” - Contingency Planning

Contingency Planning requires the preparation of two documents, the “Risk Assessment” and the “Critical Path.”

55.7.1 Risk Assessment

The “Risk Assessment” document consists of two parts. The first, headed “Background,” provides general information on the case, including its history and present status, key future dates, and identification of the issues/risks in the case.

The second part of the document is headed “Possible Outcomes”. Here, all realistic outcomes are identified, the likelihood of each is assessed, and the strategy to manage each of the outcomes is described. The strategy will address matters such as the existence of working groups to deal with the outcomes, and the possibility of further appeals.

55.7.2 Critical Path

The “Critical Path” document deals with the detailed plan to deal with a key event, most often the release of a decision. It describes the roles and responsibilities of each of the major participants involved in dealing with the outcome of the case: who will do what, when, and how. For example, it will describe in a detailed way what steps will be taken and who will take them: who will obtain the decision, how the result will be communicated to the other participants, who will be briefed how and when. The document will establish a time line for the performance of key functions.

55.7.3 Communications Plan

Communications are often a key part of managing impacts in criminal law, because of the importance of maintaining public safety, and confidence in the administration of justice. Accordingly, communications strategies may be frequently part of the contingency plan. Communications personnel should have primary responsibility for preparing such plans, based on information provided by counsel or their managers.

55.8 Appendix “B” - Reporting Requirements

Special reporting requirements exist to ensure that information can be effectively shared, and senior officials are aware of, and speak knowledgeably about, high impact cases. Some of these reports may involve simply repackaging material in the Scanning Report.

55.8.1 Early Warning Notes

Early Warning Notes (EW Notes) are the Department’s mechanism for alerting senior officials to developments in high-impact cases. Lead counsel are responsible for advising senior officials of anticipated milestones or activity in high-impact cases (an upcoming trial, anticipated decision, sentencing, etc.) by means of an EW Note submitted to the DM Team Secretariat at ewr.cases@justice.gc.ca .

On the basis of information received via EW Notes, the DM Team Secretariat:

1. prepares the litigation section of the weekly Early Warning Report for the Minister, which highlights significant litigation activity anticipated for the coming week;
2. prepares the Radar Screen, distributed throughout the Department, which provides an overview of anticipated litigation activity in high-impact cases, as well as notable decisions rendered the previous week; and
3. updates a database of high-impact litigation, from which periodic reports are produced for senior officials.

The deadline for submission of Early Warning Notes for the following week is Thursday at noon, Ottawa time. They can be submitted in either English or French; when translation is required, it is handled by the Secretariat. More detailed instructions and suggested formats for EW Notes can be found on the DOJ intranet or from the FPS LRM Centre.

EW Notes must be approved by the Senior Regional Director (for cases in the regions), or the Senior General Counsel, Criminal Law or SPPS (for headquarters cases). All EW Notes should be copied to the ADAG (Criminal Law).

55.8.2 Periodic updating on the status of the case

Lead counsel may be asked periodically for updates on the status of significant risk cases, to ensure that information in summary reports on high-impact litigation for senior and elected officials is accurate and up to date.

55.8.3 Question Period (QP) Notes

These notes are requested by the Minister’s Office for use by the Minister in answering questions in the House of Commons or at media scrums. They are a key accountability tool for the Attorney General/Minister of Justice. Question Period is held at 2:00 P.M. each day except, Friday, when it is held at 11:00 A.M. The notes are usually a single page in which the issue is identified, background provided, and suggestions made as to what the Minister may say, if anything, about the issue. Crown counsel (for example, counsel who was linked to the issue in the Early Warning Report) normally prepares the QP Note, which requires the approval of the counsel’s manager and the ADAG (Criminal Law).The notes are usually required by the Minister’s office by 11:30 A.M. Monday through Thursday, and by 9:00 A.M. on Friday.

55.9 Appendix “C” - Departmental LRM Structure

55.9.1 The DM Team Secretariat

The Strategic Analysis Unit of the Deputy Minister's Team Secretariat coordinates information on high-impact litigation to ensure that senior officials are aware of developments in significant cases. The Unit produces weekly reports for the Minister, the Department’s management team, and for the Department as a whole, profiling significant litigation activity

55.9.2 Thursday Morning Group

The Thursday Morning Group consists of representatives from various portfolios. Each Thursday morning, the group meets to informally discuss the week ahead and share information on issues and cases relating to the Early Warning System. The Thursday Morning Group also works on other projects, as needed on an ad hoc basis, such as the Forward Agenda. It is intended to support the Department’s Legal Risk Management initiative. The Thursday Morning Group is chaired by Special Legal Risk Management Counsel. The FPS is represented at this meeting.

55.9.3 National Litigation Committee

The National Litigation Committee has a broad mandate to manage significant litigation in which the Government of Canada is, or should be, a party. In this regard, the Committee: reviews all facta to be filed in the Supreme Court of Canada (and exceptionally, in other courts); considers whether the A.G. Canada should intervene in any litigation in the Supreme Court or other courts; and considers other issues of importance referred to it by portfolio heads. Membership consists of portfolio heads, senior litigators, the heads of regional litigation committees, and representatives of the Minister and Deputy Minister. Meetings are held each Tuesday at 11 A.M Ottawa time, and background material is distributed on Thursdays. Any matter referred to the Committee by the FPS must be approved by the ADAG (Criminal Law). Counsel having a matter for the Committee’s attention should consult with the Supreme Court Criminal Appeals Co-ordinator.

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Date Modified:

2008-12-24