New CMHC rule could have impact in Toronto, Vancouver markets

New CMHC rule could have impact in Toronto, Vancouver markets

December 31, 2007

OTTAWA — Newly released documents show the country's highest court is ready to launch a legal battle with the federal government over new IT rules which the Supreme Court of Canada fears would threaten its independence.

The Supreme Court is not alone in these concerns: the Federal Court, Federal Court of Appeal, Court Martial Appeal Court and Tax Court are all prepared to launch a constitutional challenge against having the government's super-IT department involved in their digital affairs.

The federal Liberals are now left to decide how to handle an issue created by a decision of the previous Conservative government that came into effect during the federal election.

That decision forced the courts to go through Shared Services Canada for all IT purchases, such as servers, routers and software, rather than letting them make the procurements on their own. The courts had that power until Sept. 1, when the new rules kicked in and made them a ``mandatory client'' of Shared Services Canada, which oversees purchases and digital services for 43 of the heaviest IT users in the federal government.

The move, approved by the Conservative cabinet in May 2015, was supposed to save money, since Shared Services Canada buys in bulk for the federal government, and improve digital security, because Shared Services Canada buys from safe suppliers.

Briefing material provided to Prime Minister Justin Trudeau shortly after he took office shows the courts were worried that having a government department involved in their IT services ""and the perceived implications for control of their data'' infringed on judicial independence.

"They must maintain control of their data, not only because of concerns about confidentiality, but also because an independent judiciary cannot tolerate having its sensitive information controlled by a separate branch of government,'' reads part of Trudeau's briefing on urgent issues facing the new government.

In an interview with AdvocateDaily.com, Toronto business and IT lawyer Peter Murphy says the use of shared services departments to achieve economies of scale and reduce costs in IT procurement is increasingly common, particularly among multinational business organizations.

He says that, by imposing shared IT services, the previous Conservative federal cabinet appeared to be pursuing greater efficiencies and data protections consistently with best industry practices. However, according to Murphy, the implications for judicial independence resulting from the imposition of shared IT services on our federal courts do not appear to have been considered.

"The federal courts have legitimate concerns that the imposition of shared IT services may challenge their judicial independence," says Murphy, who is not involved in the matter and makes his comments generally.

"Our Constitution, including the Charter of Rights and Freedoms, and our common law have recognized judicial independence with respect to the courts as legal decision-makers and as institutions in our legal system,"" he says.

Murphy, a partner with Shibley Righton LLP — whose practice includes technology and commercial contracting, intellectual property licensing, commercial transactions and privacy, data protection, anti-spam and marketing law — says shared IT services could be inconsistent with these forms of judicial independence.

"For example, the federal government's shared services administrators might have access, through shared data storage and management infrastructure, to a federal court's records pertaining to an ongoing legal challenge against a federal law or the federal government," he tells the online legal news publication.

"That would seem to pose a significant threat to the court's independence," he adds.

In an August letter to the government's top bureaucrat, officials for the courts argued that they shouldn't be subject to Shared Services Canada's oversight and should be exempt like agents of Parliament, including the auditor general, privacy commissioner and information commissioner.

If the government doesn't backtrack on the cabinet decision, the country's top judges "are prepared to take legal action,'' Trudeau was warned.

The advice Trudeau received in the secret briefing material has been blacked out from the documents obtained by The Canadian Press under the Access to Information Act.

A spokeswoman for Public Services Minister Judy Foote, who oversees Shared Services Canada, has yet to respond to questions about what the Liberals plan to do with the courts' complaint.

Shared Services Canada, in an email, would only say that everything the agency does is "aligned with all legislative and legal requirements,' including "the need to maintain judicial independence.' The department didn't say how exactly that works.