Section 1: Policy and Legislative Landscape #

There is a growing policy and legislative landscape addressing the use of software at the federal, provincial/territorial, and municipal levels. Some of these policies and laws directly specify the use of open source software, while others indirectly affect the use of open source software.

Open Source at the Federal Level #

There are numerous policies at the federal level that set out the Government of Canada’s approach to open source software.

• The Government of Canada is “mandated to release its own source codes under Open Source Licenses as long as it is compatible with core administrative law principles such as transparency, accountability, legality and procedural fairness.”¹

• In 2018, the Government of Canada adopted the Open Data Charter as a demonstration of its commitment to open data. While it is not a legally binding instrument, the Charter and its “open by default” principle lay the groundwork for the use and development of open source software.

• Additional guidance for government staff at the federal level includes the Directive on Service and Digital and the Government of Canada Digital Standards: Playbook.

Open Source at the Provincial Level #

Provinces have a significant degree of control over the specific software and services they use, as well as the interpretation and implementation of federal policies, in the form of provincial data policy.

• The Ontario Digital Service Standard directs provincial ministries and agencies to "use open standards, open source software and common government platforms where available" and to "favour open tools that are accessible and have strong developer community support."²

• The Province of British Columbia has published Guidelines on the Use of Open Source Software as well as a Policy Framework guiding employees’ use of GitHub.

• The Province of Quebec “advocates the use of free software when it is the best choice and will ensure that leaders have the necessary support for this purpose.” Its Open Source Software information resource includes a Reference Guide, Maturity Analysis Guide and Total Cost of Ownership Analysis Guide.³ Quebec has also developed the Québec Free License – an Open Source Software license validated by the Open Source Initiative and specifically designed for use in the public sector, with three degrees of restriction on use, application and modification.⁴

Even where there is no explicit province-wide policy promoting the use of open source software, several provinces have developed open source projects to meet specific needs. For example, the Government of Alberta has released an open source toolkit to support disclosures under Alberta's Public Sector Compensation Transparency Act. During the height of the COVID-19 pandemic, the Government of Nova Scotia released an open source tool to help citizens self-assess when to call the 8-1-1 non-urgent health services hotline.

Open Source at the Municipal Level #

Municipalities also have a significant degree of control over the specific software and services they use, and the primary lever is procurement. Staff should be familiar with the range of open source software in existence – and a good place to start is knowing how other jurisdictions have addressed similar needs.

• Several Canadian municipalities are active in developing and sharing open source projects on GitHub.

• Some municipalities have adopted policies that explicitly promote the use of open source software (e.g., Montreal, Vancouver, Toronto).

• The City of Montreal also maintains an inventory of open source software it uses.

As at the provincial level, the absence of open source software policies has not stopped several municipalities from developing open source projects to serve local use cases. The City of Sault Ste. Marie, which has been sharing its code via GitHub since 2017,⁵ has developed several open source tools to support day-to-day municipal operations across departments including a Contract Expiration Tracker, General License Manager, and Parking Ticket System.

Privacy Legislation #

In Canada, privacy legislation at the federal and provincial levels may impact how governments adopt open source software if there is any chance it will handle any personally-identifiable information about citizens. The legislation that applies to a given piece of open source software will depend on who is using the software and what they are using it for.⁶

Legislation enacted outside Canada may only have limited direct impact on the government open source activities in Canada, but it is nonetheless very important to consider in terms of understanding norms around how software is developed for global markets and how personal information is protected within software. For example, the European Union’s (EU) General Data Protection Regulation* (GDPR) imposes additional responsibilities on data controllers and data processors – these responsibilities may apply outside the EU in cases where data belonging to EU citizens is involved.

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