Technological Procurement as a Component of Judicial Independence

On January 6th, 2016, different media outlets reported that a certain number of federal courts, including the Supreme Court of Canada, were contesting the issue of a decree (2015-1071) stating that procurement for government IT services now needs to go through Shared Services Canada. As specified in the decree: “a department listed in Schedule I, I.1 or II of the Financial Administration Act must obtain the services specified in paragraph (b) exclusively from the Minister designated for the purposes of the Shared Services Canada Act through Shared Services Canada and is not permitted to meet its requirement for any of those services internally”. The text then goes on to exempt certain organisations from the application of the decree such as the Office of the Auditor General, the Office of the Chief Electoral Officer, the Office of the Commissioner of Lobbying, the Office of the Commissioner of Official Languages, the Office of the Public Sector Integrity Commissioner, and the Offices of the Information and Privacy Commissioners of Canada. Unfortunately, the Registrar of the Supreme Court of Canada and the Courts Administration Service, both included in Schedule I.1 of the Financial Administration Act, were left off the list of exempted departments and agencies, meaning that courts will be subject to these new procurement practices.

In a press release published on January 7th, 2016, Chief Justice Beverley McLachlin explained that: “The application of Order in Council PC 2015-1071 to the Supreme Court of Canada became a matter of concern to the Court before its entry into force in September 2015. The Registrar of the Supreme Court of Canada and other Court officials met with Department of Justice officials and others to explain the concern and emphasize the need to preserve the Court’s administrative independence from government.”

As stated in Valente v. The Queen, along with security of tenure and financial security, administrative independence is one of the cornerstones of judicial independence. Although there has been great debate as to the proper level of administrative independence that is required for courts to comply with the requirements of section 11 d) of the Charter, the Supreme Court’s objection to decree 2015-1071 seems to implicate that IT procurement falls within the definition of “matters of administration bearing directly on the exercise of [a court’s] judicial function”, to quote justice Le Dain in Valente.

Although some commenters have mocked the idea that being forced to acquire the latest version of Microsoft Office from Shared Services Canada would somehow impede judicial independence, those are not the only types of IT procurement contracts that the decree refers to. In fact, the decree addresses two main procurement categories:services related to email, data centres and networks”, as well as “services related to end-user information technology”, both of which are obvious causes for concern if the decree is applied to court services.

Forcing the courts to use services related to email, data centres and networks” that are hosted by Shared Services Canada or, more realistically, private service providers contracted by the government, implies that sensitive court data will no longer be under the control of the courts. This further entails that the courts will no longer be able to guarantee access to court records, since said records will be under the control of civil servants or even private parties that have no clear understanding of a court’s mandate and over which the court has no direct power.

Furthermore, imagine if the service provider is party to a trial while having control over all the court data – including the judge’s private emails (something that would be very common if the government offered hosting services itself). Even if all parties act in good faith, this situation seems problematic enough to warrant separate procurement contracts for the courts.

As for “services related to end-user information technology”, the category is broad enough to cover all sorts of hardware and software solutions, including videoconferencing tools, or efiling solutions. Since the goal of the decree is to limit procurement costs, there’s an underlying implication that the available technological tools will be limited to those offered by a handful of developers that have been preauthorised by Shared Services Canada through a call for tenders or other means. Although this sounds interesting in theory, it implies that the courts might wind up with technological solutions that, in the best-case scenario, do not comply with their needs or, in the worse case scenario, affect a litigant’s fundamental rights. It is a well-established principle that technology is not neutral; that it can impose or forbid certain practices through engineering (something Lawrence Lessig refers to as “Code”). The decree therefore implies that a court could be left to chose between forgoing the use technology – something that could have dire consequences for access to justice – or using technology that is incompatible with current procedures – forcing a procedural reform that would be dictated not by access to justice needs, but by software developers’ financial interests.

For all of these reasons, we fully endorse the Supreme court’s position that IT procurement should be construed as a component of judicial independence, and can only hope that the Liberal government will see things the same way. In fact, we were relieved to read that talks have been initiated between the Supreme Court and the government, and that[t]he Court was encouraged by the federal government’s response and is expecting a satisfactory resolution of the issue shortly”.

Regular readers might question what all of this has to do with online dispute resolution, the usual topic of our column. The answer is simple. As we’ve explained in previous posts, online dispute resolution is rapidly evolving past its classic “private online ADR” identity to represent the broader use of technology for conflict resolution, a reality we have chosen to christen “cyberjustice”. And for cyberjustice to grow, courts and legal stakeholders need to be the ones to dictate what is needed from software developers, not procurement experts who, although well intentioned, have little to no knowledge of the intricacies of the legal system…

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