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Innovation Canada, IP, and Dependence Upon the Standards Council of Canada

[Note: this is but a short summary of the full text posted on the SSRN, February 2, 2018, (pdf.)-Ken Chasse.]

Canada’s federal government will be looking to gain political points and praise in the next federal election, for its “Budget 2017” declaration last March, as to creating Innovation Canada. Its purpose, among others, is to promote and support business innovation, including educating organizations in regard to recognizing what is intellectual property (IP), and preserving, governing, and otherwise dealing with it as valuable property, e.g., teaching that databanks and information can be IP, essential to the “knowledge economy.” Necessary will be the creation of National Standards of Canada to provide authoritative, enforceable statements as to the required principles and practices. That will make Innovation Canada dependent upon the Standards Council of Canada for the creation of competent national standards.

But my experience with the Standards Council raises this risk: “Evidence Based Upon National Standards Might Thereby Be Unreliable” (Slaw, February 2, 2017). The Council declares draft standards submitted to it by standards development organizations (SDOs) such as the Canadian General Standards Board (CGSB),[1] to be National Standards of Canada (NSCs). The improper procedure imposed by CGSB caused me as the Chair, and the other senior lawyer specialized in the use of records as evidence, Martin Felsky,[2] to resign from the CGSB committee that drafted what is now this National Standard of Canada: Electronic Records as Documentary Evidence CAN/CGSB-72.34-2017 (“72.34-2017,” as of March 1, 2017, pdf.). It is supposed to be an authoritative statement of the principles and practices by which electronic records management systems (ERMSs) are to be maintained. As used in large institutions of all types, it is a very complex technology. Given that we all depend upon records of all types for all proper transactions, any one of which could become evidence related to a legal proceeding or service, or a decision made about any of us, there cannot be a national standard of greater importance.

We resigned shortly before the “public review” stage of the project (September 15-November 30, 2015), when we realized that CGSB would use a draft standard that was very inadequate in both its procedural creation and resulting content. The public review is a critically important and mandatory stage of the standards-development process. It is a formal, public invitation to participate in that important process, and an implied representation to the public: (1) that the draft standard was created by means of the required procedures; and, (2) that it contains no known errors. But CGSB was in a great hurry to meet the deadline required by the contract it had made with the Treasury Board of Canada Secretariat, a federal government department, to get a final draft to the Standards Council to be declared a National Standard. The public review increases the probability of creating the best content possible, and it serves the requirement of a democracy that those who will be subject to a law, regulation, or standard, be given an opportunity to participate in its creation.

But to the contrary, CGSB ran the project as one would when providing a service for a private client, instead of for the people of Canada, as is required by the Council’s terms of accrediting SDO’s, based upon the Standards Council of Canada Act. Thus committee members were misled in providing their expertise—expertise provided without compensation, i.e., the s. 4 process of “voluntary standardization.” We were repeatedly reminded that there was a “projected” finishing date. In fact, it was a contract-based deadline. CGSB should have made that clear at the beginning of the project, and, should not have agreed to allow such government control. National standards are to be created to serve the public interest, not government interest. Government representation on the drafting committee, yes: control, no. CGSB’s use of such a corrupted procedure should have caused the Standards Council to refuse to declare the final draft of 72.34-2017 to be a national standard. My 100-page, very detailed complaint, informed the Council of all of that, up to our resignations in June 2015. The full text contains that complaint text.

To announce Innovation Canada, the federal government’s “Budget 2017’s” Fact Sheet, Skills, Innovation and Middle Class Jobs, states in part—I quote from the following paragraphs in regard to: (1) helping “Canada realize its potential as a global leader in innovation”; (2) establishing Innovation Canada; (3) accelerating innovation through “superclusters” of innovators, such as Silicon Valley in California; and, (4) supporting Canadian Innovators through venture capital:

Budget 2017’s Innovation and Skills Plan advances an agenda to make Canada a world-leading centre for innovation, to help create more good, well-paying jobs, and help strengthen and grow the middle class.

. . .

Budget 2017 proposes to establish Innovation Canada, a new platform that will help to consolidate and simplify dozens of innovation programs situated across many departments. This will make it easier for Canadian innovators to access and benefit from Government-led innovation programs, reducing legwork and paperwork, providing more timely and relevant access to services, and ultimately putting more money in the hands of Canadian innovators to grow their businesses and create jobs. The Government will initiate a whole-of-government review of business innovation programs to ensure they are effectively geared to support Canada’s innovators in turning their ideas into thriving businesses.

Clusters—dense areas of business activity that contain large and small companies, post-secondary institutions and specialized talent and infrastructure—energize economies and act as engines of growth. They create jobs, encourage knowledge sharing, drive business specialization and help to attract “anchor” companies from around the world. Successful clusters like the ones in Silicon Valley, Berlin, Tel Aviv and the Toronto-Waterloo corridor contribute significantly to both regional and national economies.

. . .

Budget 2017 proposes to invest up to $950 million over five years, starting in 2017–18, to be provided on a competitive basis in support of a small number of business-led innovation superclusters that have the greatest potential to accelerate economic growth. The competition will launch in 2017 and focus on superclusters that enhance Canada’s global competitiveness by focusing on highly innovative industries such as clean technology, advanced manufacturing, digital technology, health/bio-sciences, clean resources and agri-food, as well as infrastructure and transportation.

The TV Ontario (TVO), program “The Agenda,” with moderator Steve Paikin, on October 25, 2017, entitled, “Canada’s Future Depends on IT,” discussed those federal budget commitments. The program’s webpage summary states:

About this Video [36:47 minutes long]

The innovation economy. The knowledge economy. No matter the name, it’s very likely the future economy. While Canadians are eagerly jumping into high innovation sectors, such as information technology and advanced manufacturing, there are indications that those efforts aren’t paying off, particularly because intellectual property is not being nurtured. The Agenda discusses innovation with experts in the field.

The discussion’s panelists were: (1) Professor Giuseppina D’Agostino, the Founder and Director of “IP Osgoode,” the Intellectual Property Law and Technology Program at Osgoode Hall Law School, York University, Toronto; (2) Professor Dan Breznitz, Co-Director of the Innovation Policy Lab Munk Chair of Innovation Studies, at the Munk School of Global Affairs, University of Toronto; “…known worldwide as an expert on rapid-innovation-based industries and their globalization…”; and, (3) Dan Ciuriak, a Centre for International Governance Innovation (CIGI) Senior Fellow; one part of his expertise being intellectual property rights and domestic innovation.

At minute, 25:12 of the panel discussion video, Dan Breznitz states: “… changing the rules of the game; through the Standards Council of Canada; through our organization in Ottawa, we can actually start to have an international voice about how you govern IP, and we have to, … .”

The Standard Council of Canada’s, Annual Report 2016-2017, Delivering Through Innovation, dated October 24, 2017 (52 pages), shows that it will be a critically important partner in the work of Innovation Canada. At p. 2/52, are these statements:

“Our Mission: To lead and facilitate the development and use of national and international standards and accreditation services in order to enhance Canada’s competitiveness and well-being.”

“Our Vision: To be a global leader driving prosperity and well-being for Canada through innovative standardization solutions.”

And at p. 4/52:

“Message from the Chair and the CEO,” states in part:

“Standards are critical to almost every product and service we use. … By partnering with Canadian businesses, research institutions, and key industries to identify the areas where our nation’s innovators have unique expertise, we can help them develop standards that tap into that expertise—and they can deliver their innovative products and services to the world.”

And at p. 16/52, is this important statement: “There are approximately 5,000 references to standards in Canadian federal, provincial and local regulations.”

CGSB is one of nine standards development organizations (SDOs), each having its own separate jurisdiction as to subject-matter for creating draft National Standards of Canada. The drafts are submitted to the Standards Council to be declared national standards. SDOs convene technical committees of experts to draft standards. Therefore the Standards Council is not responsible for the content of national standards, and SDOs are sponsoring agencies only and not themselves expert in the subject matter of any draft national standard that they submit to the Standards Council. But everyone should be able to depend upon the Standards Council to declare only those drafts to be national standards that are truly deserving of the designation, “National Standard of Canada.”

As set out in my full text, during the three years of the 72.34-2017 drafting project,[3] there were many violations of the required procedures. Among them were these:

(1) As part of its contract, CGSB allowed Treasury Board to have one of its policy officers be a member of the full committee’s Working Group that wrote the successive drafts involved, and to have directing power over the project. But he never informed us of his qualifications concerning the subject matter of the standard. Part way through the project he told us that he had resigned from the federal government. But he was allowed to continue on as the Chair of the Working Group because, as he said, “I do not represent any particular group, but I do have strong support for Government and its agencies.” His qualifications were never revealed. But the reverse side of the inside cover of the published 72.34-2017 national standard acknowledges him as, “leading the working group in the revision of this standard.”

(2) CGSB allowed unqualified people to draft portions of the standard, including altering my work and that of Martin Felsky on the legal section of the standard. We were told that it contained “redundancies with the content of the Introduction.” This was said to be part of, “CGSB’s right of last edit,” even though CGSB lacked the necessary expertise.

(3) We were required to submit our comments to each draft within the narrow columns of an online 8.5 x 11 inch single page template (turned on its side), even though we made clear that lawyers cannot do their work that way. The answer to our complaint was, “use the template.”

(4) I never received any report of comments made by the members of the full committee to any of the several drafts of the standard.

(5) CGSB marginalized the participation of the members of the full committee such that many of them ceased to participate. Therefore it cannot be said that the standard is the product of a properly participating committee as required in order to create a valid national standard.

Instead of the Standards Council’s dealing with my complaint itself, it sent it to CGSB, which was therefore allowed to be the judge of its own infractions, i.e., “the judge of its own case,” including its deceptive public review. I objected to the Standards Council, and I sent a copy of my complaint text (on October 21, 2015), and of my “objection text” (on November 13, 2015) to a Senior Assistant Deputy Minister (ADM) at the federal Department of Justice in Ottawa.

CGSB’s complaints procedure involved two levels of appeals, each of which produced only 2-pages of their responses that dealt directly with my accusations. In spite of my quotations from many email messages, CGSB dismissed my allegations as not having happened, and instead used their own “alternative facts.” Only then did the appeals process allow me to launch a final appeal to the Standards Council itself. In answer to my detailed 163 pages of complaint and appeals texts, I received the Council’s answer by way of a letter on December 13, 2016, which stated only this:

[The Council’s] assessor found CGSB to be in compliance with its own procedures and with the SCC’s [the Standards Council of Canada’s] requirements. Therefore we have concluded that no action can be taken that would affect CGSB’s accreditation. As a result, we consider the complaint to be closed.

In addition to the issue as to whether CGSB should lose its accreditation as an SDO, my complaint also attacked: (1) CGSB’s very improper procedures used to create the 72.34-2017 draft national standard; and, (2) the lack of competence and quality control in the whole process for creating national standards. However, “complaint closed” meant that my two separate requests (on Dec. 15, 2016, and Jan. 16, 2017), for a copy of the assessor’s report produced no reply; not even a polite refusal.

Nor did I receive an answer to my recommendation that affidavits, swearing to compliance with required procedures in detail, be required from CGSB officials involved in any project to create a national standard. Such affidavits would accompany any draft standard sent to the Council to be declared a National Standard of Canada. They are definitely necessary because the procedure for creating national standards is undisciplined and lacking in effective quality control, as is abundantly evidenced by: (1) the many procedural violations used by CGSB in the 72.34-2017 project; and, (2) the many errors in the 72.34-2017 National Standard of Canada. If I had not complained, the Council would have known none of it.

All matters of drafting procedure, as well as creating content, should be decided by the drafting committee members themselves, because: (1) they have the necessary expertise and know how to apply and use it for creating the content of a national standard that will be used by them in their field of expertise; and, (2) they are the ones best able to deal with the “limited time and availability” problem of a large committee of unpaid experts who have clients and employers, and therefore are uncertain as to when they can be available. I speak from the experience of having been the legal advisor to the committee that drafted the first edition of the 72.34 standard (72.34-2005), back in 2000-2003. Committee members must be kept continuously involved or there will be difficulties maintaining their participation.

That is in fact what happened this time, drafting the second edition, because CGSB imposed a Working Group structure upon the committee that caused many members to fall away from participating. That prevented the draft standard’s being the product of the required adequately representative committee. Committee members would receive the successive drafts only once every 2-3 months, without sufficient information as to why particular changes had been made from one draft to the next.

CGSB thereby imposed a procedure that enabled it to have complete and detailed control, i.e., it is much easier to control a small working group than it is a large full committee whose participation could instead, thus be greatly minimized. Such tight, close control facilitated meeting the deadline, and other terms, imposed by its contract with Treasury Board, which included money. But servicing Treasury Board that way, as a private client or customer, is contrary to the purposes and process of “voluntary standardization” created by the Standards Council of Canada Act, s. 4. Therefore, such servicing could not be within CGSB’s terms of accreditation as an SDO, granted it by the Standards Council.

On April 3, 2017, I informed the same Senior ADM of the federal Department of Justice of the existence of this new National Standard of Canada, (declared by the Standards Council the previous month), attaching a chronology listing all of the above events, and a copy of the Slaw article cited above. No action has been taken by the Department of Justice. But the phrase in the electronic records provisions of the Evidence Acts, “the integrity of the electronic records [or documents] system,” requires an authoritative national standard to give it a sufficiently precise meaning to be workable—e.g. s. 31.2(1)(a) of the Canada Evidence Act, and the reference to the use of standards in s. 31.5.

Nonetheless, 72.34-2017 with its defects of both content and the procedure of its creation, remains as a published National Standard of Canada. That leaves all of the hundreds of experts in ERMS technology who serve clients and employers, with a dilemma. How does one formally certify compliance with such a defective national standard? It should be declared to be void, and therefore of no force or effect. What does one tell the client? And the absence of a valid 72.34 national standard will leave legislation dealing with records that are dependent upon ERMSs, vague in its requirements, if not unworkable. And hundreds of transactions dependent upon certifications of ERMSs as being capable of producing reliable records, will be left without a method of certification—e.g., banks and governments require such certifications. What of “electronic discovery” and disclosure in legal proceedings from ERMSs that cannot, and perhaps should not be certified?

The federal Department of Justice having taken no action, on May 1, 2017, I launched a further complaint to the Office of the Public Sector Integrity Commissioner of Canada (bringing the total of my submitted material to 175 pages), concerning the conduct of all three agencies: Treasury Board; CGSB; and the Standards Council. In reply, by letter dated September 13, 2017, the Integrity Commissioner, Joe Friday, stated that because it did not appear that a “wrongdoing” as defined by s. 8(a),(c) and (e) of the federal Public Servants Disclosure Protection Act had been committed, he was of the opinion that, “the CGSB complaint process” had adequately dealt with the subject matter of the disclosure I had made to his office. Consequently, pursuant to s. 24(1)(f) of the Act, he had a valid reason not to commence an investigation into my allegations.

I know from my experience: (1) as a legal advisor since 1978, in the creation of national standards for records management; and, (2) working with such experts since 1988, to provide legal opinions that accompany such experts’ certifications of compliance of institutional clients’ ERMSs with records management standards, how very prevalent, bad and inadequate electronic records management is. Very necessary is a legal infrastructure for standards-enforcement so as to make rules of procedure workable, e.g.: (1) s. 5 of PIPEDA, which basis its Part 1 “Protection of Personal Information” provisions upon mandatory compliance with the National Standard of Canada set out in Schedule 1 in Appendix A of that Act, entitled: Model Code for the Protection of Personal Information, CAN/CSA-Q830-96; (2) to facilitate the rules of electronic records discovery and disclosure from ERMSs capable of producing all relevant records; and, (3) to provide an authoritative statement of the principles and practices of ERMS management required by the word “integrity” as used in s. 31.2(1)(a) of the Canada Evidence Act (and equally by its provincial and territorial counterparts), which subsection provides for the “admissibility” of records on proof that their ERMSs have, “integrity.” [“admissible evidence” means, acceptable as reliable and properly obtained evidence]

Innovation Canada will need a system that creates national standards with guaranteed competence and integrity—national standards for creating and defining its required principles, practices, technical terms, rules, and tests for measuring performance. The 72.34-2017 national standard is not of that necessary quality. But instead of its being withdrawn and the drafting project started again, it remains an active National Standard of Canada. Can we rely upon any national standard?

Creating national standards for IP and the “knowledge economy,” and for providing authoritative and enforceable statements of required principles and practices created by Innovation Canada, will fall within the jurisdiction of the Canadian General Standards Board, and the Standards Council of Canada. The Council is to regulate the whole process of standards-creation. But it doesn’t appear to have the enforcement powers to guarantee sufficient quality control. And it should learn to act as an impartial judge of the work of SDOs, keeping its “professional working distance” from them. But to the contrary, in regard to my complaint and appeals concerning the 72.34-2017 project, it acted as CGSB’s and Treasury Board’s overly protective and permissive parent, or submissive and compliant puppet.

And equally so, all laws concerning information and data technologies will need national standards. That is to say, the need to create Innovation Canada has provided further proof that the process for creating national standards is now very obsolete. The 72.34-2017 project was largely a waste of taxpayers’ money, and a waste of a large number of professional people’s time, freely given.

The full text of this blog article contains all of the complaint and appeal texts referred to above, which include much more detail, evidence, and commentary. It is posted on the SSRN (open access, pdf. download). I shall inform the federal department of Innovation, Science and Economic Development Canada, and once again, the federal Department of Justice, it being the defender of federal legislation.

See also these, my published records management articles:

(1) “Electronic Records as Evidence” (SSRN, February 16, 2018);

(2) “Records Management Law – A Necessary Major Field of the Practice of Law” (SSRN, January 27, 2016, pdf);

(3) “Admissibility of Electronic Records Requires Proof of Records Management System Integrity” (SSRN, September 6, 2015, pdf.);

(4) The Sedona Canada Principles are Very Inadequate on Records Management and for Electronic Discovery (SSRN, November 26, 2014 (note: the 2nd edition of Sedona Canada (November 2015), contains the same defects as are dealt with in this article concerning the first edition);

 

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[1] CGSB is, “a component of the Government of Canada, Department of Public Works and Government Services.”

[2] Martin Felsky is an e-discovery specialist of long standing. He is recognized in the 2015 and 2016 Who’s Who Legal as the dean of Canadian e-discovery lawyers, and one of the “most highly regarded” e-discovery lawyers in Who’s Who Legal Canada 2016.

[3] The project began with a letter from CGSB, dated December 6, 2013, inviting selected organizations to contribute members to the drafting committee. The first meeting was held in Ottawa on Friday, May 16, 2014. Thereafter, email and the internet made travelling to meetings unnecessary.

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