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Evidence Based Upon National Standards Might Thereby Be Unreliable

I’ve endured a very worrisome and incompetent drafting of an intended second edition of this National Standard of Canada (an NSC): Electronic Records as Documentary Evidence CAN/CGSB-72.34-2005 (“72.34,” developed by the Canadian General Standards Board (CGSB)). Its intended purpose is, to be Canada’s most authoritative standard as to the proper operation and maintenance of electronic records management systems (ERMSs). Therefore it can be used to test the “integrity” that provisions such as, s. 31.2(1)(a) of the Canada Evidence Act (CEA), and s. 34.1(5),(5.1) of the Ontario Evidence Act (OEA), require of ERMSs, for the purpose of determining the admissibility of electronic records as evidence; e.g., R. v. Oler, 2014 ABPC 130.[i] Records are the most frequently used kind of evidence. CGSB’s conduct caused me, along with another lawyer specialized in the area of law essential to the project, (a senior lawyer from a large corporate-commercial law firm), to resign from the drafting committee and its working group.

I complained at length to the Standards Council of Canada, providing great detail in more than 160 pages of evidence and commentary. But the Council has refused to take any action against the Standards Development Organization (the SDO) accountable for those very faulty procedures used. The SDO is the Canadian General Standards Board (CGSB). But for my complaint, they could have succeeded in defrauding the Council itself into declaring that inferior draft to be an NSC. There was very strong evidence that, that was their intention in order to fulfill a time-limited agreement with a government department.

Therefore, if no further action is taken, I will have made matters worse by complaining. All SDO’s will know from this occurrence that they can proceed as they wish, inter alia, accepting funding from, and granting supervisory authority and drafting choices to whomever they wish, without fear of discipline by the Council. And given that CGSB’s wide jurisdiction for developing NSCs includes the development of electronic information technology, important legislation dependent upon the NSCs it will develop will be rendered useless, if not declared void.

Much legislation, federal, provincial and territorial, is dependent upon NSCs. For example, section 5 of PIPEDA (the Personal Information Protection and Electronic Documents Act), in Part 1, “Protection of Personal Information in the Private Sector,” concerning privacy, states that all organizations shall comply with the NSC entitled, Model Code for the Protection of Personal Information, CAN/CSA-Q830-96 (in Schedule 1 of PIPEDA). And s. 31.5 CEA, and s. 34.1(8) OEA, state that NSCs may be used in determining the admissibility of electronic records in accordance with the “systems integrity” concept set out in s. 31.2(1)(a) CEA, and 34.1(5),(5.1) OEA, i.e., the integrity of an electronic record depends upon proof of the integrity of ERMS by or in which the electronic record was recorded or stored. And all such federal legislation has its provincial and territorial counterparts. For example, s. 8 of the Ontario Electronic Commerce Act (being a provincial equivalent of Part 2 of PIPEDA, “Electronic Documents”), makes necessary, proof of the “integrity” of the information in an electronic document that is to be provided as an original document. And, The Sedona Canada Principles—Addressing Electronic Discovery 2d. ed., cites for available assistance, the two NSCs concerning the required principles and practices for ERMSs; (see footnote 247 at page 78).[ii]

The Standard Council’s 2014-2015 Annual Report, entitled, Strengthening, Leading, Delivering Value to Canada, states (at pages 5 and 28):

“There are approximately 5,000 references to standards in Canadian (including federal, provincial and territorial) regulations, which shows the major impact that standards have on our daily lives.”

In order for an expert in ERMS technology to certify compliance of an institution’s ERMS with the following two NSCs, 265 tests have to be applied: (1) Electronic Records as Documentary Evidence CAN/CGSB-72.34-2005 (referred to as, “72.34,” requires the application of 208 tests); and, (2) Microfilm and Electronic Images as Documentary Evidence CAN/CGSB-72.11-93 (“72.11” requires 57 tests). They incorporate by reference several international standards of the ISO (International Organization for Standardization in Geneva, Switzerland).[iii] NSCs are developed by SDOs accredited by the Standards Council. Draft standards are then submitted to the Council for its approval and its public declaration as NSCs, and then commercially published by the SDOs, in this case, CGSB. These standards are written by Technical Committees composed of experts from the records and information management field, including lawyers. They can be obtained from CGSB’s “Purchase Standards” webpage.

Since 1978, I have acted as a legal advisor in relation to drafting and updating these NSCs. And since 1988, I have worked with ERMS experts servicing institutional clients of many kinds. All such projects involve certification of compliance with 72.34 and 72.11. My part is to write legal opinions as to the ability of clients’ ERMSs to satisfy the legal requirements of, discovery and admissibility proceedings, and of various statutes for electronic records, and those of 72.34 as well. A much larger project would be, for example, to meld two large, complex ERMSs into one, as might be made necessary by a merger or acquisition between organizations.

The improper procedures were prompted by an agreement entered into by CGSB with the federal Treasury Board of Canada Secretariat in 2013. In exchange for Treasury Board’s funding, CGSB agreed to sponsor the development of a second edition of 72.34 within 18 months from December 2013. Treasury Board was acting on behalf of a number of federal government departments. They had a pressing records management problem they didn’t want to deal with until a new edition of 72.34 had been proclaimed an NSC, the current one then being almost ten years old (proclaimed in December 2005). In comparison, only after more than three years of deliberations by its large Technical Committee, was the final draft of the current edition of 72.34 able to be submitted to the Council to be proclaimed an NSC.

However, with time taken to create the Technical Committee, our first Committee meeting was not held until May 16, 2014, in Ottawa. I had been chosen to be Chair by the Committee. We were not told then of CBSB’s agreement with Treasury Board or its time requirements as to completion. The 18 months from December 2013 would end in May, 2015.

It appeared that the 72.34(2d) project would not have happened when it did without Treasury Board’s involvement and money. And given the intense but very inappropriate procedures imposed by CGSB, Treasury Board bought itself an agreed-upon opportunity to have one of its employees be a member of the Technical Committee’s Working Group, and also the Working Group’s Chair. He was allowed to act with directing authority, but he wouldn’t answer my questions as to his qualifications. So, as Chair of the Committee, I served no purpose. CGSB’s secretary to the Committee raced through and corrupted the required procedures without regard to their negative effect upon the quality of the draft standard.

All procedures were imposed by CGSB instead of being determined by the Committee itself. CGSB violated the three foundation principles required by the Council’s procedures and practices, which are based upon the process of “voluntary standardization” established by the Standards Council of Canada Act. They are: (1) NSCs are to be developed independently from government; (2) to serve the public interest (not government interest); and, (3) developed as the product of “a consensus of all interested parties,” being the experts needed to draft each NSC. Such experts make up the Technical Committees convened by CGSB. SDO’s are developers of, but not experts in the subject matter of the draft NSCs they develop. The eight accredited SDO’s have separate subject-matter jurisdictions as accredited by the Council.

“Voluntary standardization” means that the Committee members are not paid for their work and time. Therefore all procedures should be decided by the committee members themselves because: (1) they know best how to apply the expertise of their various professions; and, (2) they know best how to cope with their limited time and uncertain availability. Instead, right from our first meeting, CGSB determined all procedures, regardless the needs of committee members. They imposed a working group upon our deliberations and controlled timing. Having been a member of the Technical Committee that drafted the existing first edition of 72.34 more than ten years earlier, I knew there was no need to use a working group to so minimize the participation of the full Committee. CGSB left us alone to determine all procedures and the timetable.

In contrast, CGSB’s control had unqualified people write portions of the 72.34(2d) draft standard, and the Committee was not consulted on the decisions that should have been theirs to make. The full Committee, being allowed to do no more than review the drafts produced by the Working Group, with long intervals in between drafts, lost many members who fell away from participation. “Corners were cut,” and time taken intensely minimized. Quality suffered. But for my complaint causing the Council to “stay” the project and its rush to completion, the Council could have been induced to declare a bad draft, produced by a bad procedure, to be an NSC. But only the rush was stayed while my formal complaint was dealt with. The project was not ended.

By June, 2015, it was clear to me that CGSB intended to put out for its mandatory public review stage, a draft standard that had been very improperly created and contained misstatements of law due to the re-writing of the legal section because of CGSB’s declared “right of last edit,” i.e., editing without providing an opportunity for the lawyer-drafters of the legal section to review the results of such “last edit.” We lawyers were alleged to have been guilty of “redundancy” in the legal section when compared with the Introduction. And our wordings were changed, and the order of what paragraphs were left was altered.[iv] I could not allow myself to be connected to such intended public misrepresentations. Therefore I resigned from the project, as did the other lawyer-member of the Working Group specialized in the use of electronic records as evidence. That being only one of several reasons for our resignations.

Such a public review is a public declaration that: (1) the text is the product of a proper procedure; and, (2) contains no known errors. CGSB knew that it was misrepresenting both. All steps after such public review would be void. Aggravating their wrong-doing, CGSB’s secretary to the Committee was not subtle in the use of intentional mismanagement. No attention was paid to our complaints, including complaints that lawyers cannot do their work in the very simplistic way required, i.e., drafting by putting very briefly worded comments in the narrow columns of an on-line template page.

On December 13, 2016, the Standards Council rejected, without providing reasons, my appeal from CGSB’s Director’s decision, of March 23, 2016, rejecting my appeal on all counts, from a CGSB manager’s report of December 15, 2015, rejecting all of my accusations against CGSB. All three used “alternative facts” for their conclusions. The Council’s rejection stated nothing more than that all required procedures had been followed, and, “As a result we consider the complaint to be closed.”

In response, on December 15, 2016, I requested a copy of the decision explaining its rejection, and the name and contact information of the Council’s “assessor.” I also asked: (1) from what stage would the 72.34(2d) project be allowed to continue; and, (2) if my suggestion that an affidavit procedure be imposed had been rejected, i.e., that affidavits as to the use of proper procedures, sworn to by CGSB’s Director (its CEO), and by CGSB’s secretaries to Technical Committees, accompany the draft standards submitted to the Council to be declared NSCs. They are necessary because there is no effective disciplinary mechanism used by the Council, and the Council is not responsible for the content of the draft standards submitted to it. Receiving no answer, I asked again on January 16, 2017. I have received no reply.

CGSB should have lost its accreditation as an SDO, and the 72.34(2d) project started again. Clearly, a much more competent and professional standards-development process is needed immediately.

When 72.34(2d) becomes an NSC, we can all oppose the production at discovery, and use of electronic records as admissible evidence, on the grounds that the ERMSs that produced them have not been certified as being in compliance with any authoritative ERMS standard. (Until the second edition of 72.34 replaces the first, ask opposing counsel and witnesses, “has your electronic records management system been certified as being in compliance with the National Standards of Canada, and if so when?)

ERMS technology is very complex and subject to high software code error rates, and defects in records management, because: (1) of that complexity, which is, (2) used in Canada without any regulatory law of general application; and, (3) many organizations neglect maintenance and are content to preserve only their most recently made and received records. And all of these defects are ignored by electronic discovery’s “proportionality principle” (Principle 2, pp. 16-21 of The Sedona Canada Principles 2d ed.). As to the nature and defects of ERMS technology, see (for pdf. downloads): (1) “Records Management Law – A Necessary Major Field of the Practice of Law” (January 2016); (2) “Admissibility of Electronic Records Requires Proof of Records Management System Integrity” (December 2015); “Solving the High Cost of the ‘Review’ Stage of Electronic Discovery” (June 2015); and, (4) “Guilt by Mobile Phone Tracking Shouldn’t Make ‘Evidence to the Contrary’ Impossible” (October 2016).

And so I ask, do other SDOs conduct their standards-development projects in the way that CGSB does? As an abundantly necessary precaution, in the absence of evidence to the contrary, it must be presumed that they do, given the refusal of the Council to take disciplinary action against CGSB so as to protect the public, as well as the Council itself, from the drafting and proclamation of such inferior NSCs. Therefore matters cannot be left as they are.

Next: (1) because legislation will increasingly be dependent upon technology, the use of which must be controlled by national and international standards, which standards must therefore become an essential part of such legislation, all of the Attorneys General in Canada’s 14 jurisdictions should be informed of the above; (2) the ISO in Switzerland should be informed, because it is the world leader in standardization; the Standards Council of Canada being the ISO’s representative in Canada; and, (3) I shall publish a much fuller account concerning all of this on the SSRN.

Therefore, “voluntary” standardization is no longer an adequate process for creating such important national standards, and in Canada it may frequently lack competence.

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[i] 72.34 is cited in paragraphs 3, 6, 7, 11, 14, and 19 of Oler. But on the substantive issue as to the mandatory production to accused persons of the maintenance records for the relevant breathalyzer devices, Oler is overruled by, R. v. Vallentgoed; R. v. Gubbins, 2016 ABCA 358.

[ii] The use of this “Sedona Canada” electronic discovery text, “in preparing the discovery plan,” is required by Rule 29.1.03(4) of the Ontario Rules of Civil Procedure.

[iii] “ISO” is the acronym used in all languages by the International Organization for Standardization. “ISO” is derived from the Greek word isos, meaning ‘equal.’ See, “It’s all in the name” on ISO’s “About ISO” webpage.

[iv] Such editing should be made the most damaging example of the offence of “the unauthorized practice of law.” Because of the thousands of clients and employers that experts in records management serve every year using 72.34 and 72.11, it would be far more damaging than the instances that law societies prosecute. I asked, but the Law Society of Upper Canada’s Complaints Services couldn’t give me an answer as to whether such activity would constitute that offence; see: Ontario’s Law Society Act, ss. 26.1 & 26.2. It requires a, “holding out” as being authorized to provide a legal service when in fact one isn’t so authorized.

Comments

  1. Interesting and disturbing, but perhaps not surprising (I’m reminded in a way of some of the discussion around access to standards incorporated into law http://www.slaw.ca/2016/08/17/access-to-private-standards-incorporated-into-law/ ).

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