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

Some in-depth investigative journalism is needed because there has been a further danger-augmenting development in regard to the creation of National Standards of Canada (NSCs) as that behavior relates to the federal government’s high profile, Budget 2017 declaration of the creation of Innovation Canada. Its Fact Sheet, Skills, Innovation and Middle Class Jobs, states inter alia, “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.”

I say “further development,” because I described that behavior and connection to the Innovation Canada project in my previous post: “Innovation Canada, IP, and Dependence Upon the Standards Council of Canada” (Slaw, March 22, 2018; which is but a short summary of the full text,[1] which is posted on the SSRN, (February 2, 2018; free pdf. download)). As described in those texts and sources, Innovation Canada’s promotion of intellectual property (IP) as very important “intangible property for the knowledge economy,” will rely upon the Standards Council of Canada to create National Standards of Canada to give its declared principles and practices the highest authority as enforceable requirements. Since then, a much more important purpose has been announced for itself by the Standards Council to help innovation in general and “to grow business.”

However, before such reliance is placed upon the Standards Council, a formal, open, and “independent of self-interest” inquiry is required into: (1) the Council’s ability to serve as a competent and fully accountable manager and “public face” of the present process for creating national standards; and, (2) whether that process needs to be replaced, and the government agencies involved substantially altered. But because the federal government has committed itself so completely to this project along with substantial funding, such an inquiry cannot be allowed to be a behind-closed-doors government-controlled inquiry. As I described in this previous post, “Evidence Based Upon National Standards Might Thereby Be Unreliable” (Slaw, February 2, 2017), the Standards Council’s performance, in conjunction with that of the standards development organization (the SDO), the Canadian General Standards Board (CGSB), in the creation of this critically important national standard, Electronic Records as Documentary Evidence CAN/CGSB-72.34-2017 (“72.34-2017,” declared to be an NSC by the Council on, March 1, 2017, pdf.), should be seen as dangerous and putting at risk the efficacy of the Innovation Canada project. At risk if that project is believed to lack the assistance of a credible method of creating national standards by which to enforce the principles and practices it will be advocating for innovation and the preservation of IP.[2] It also casts doubt upon the quality and the method of creating all existing and future national standards.[3]

Because we all depend upon records—our own and those of the people who make decisions for us and about us, and depend upon their proper preservation and management—there cannot be a national standard more important than 72.34-2017. CGSB’s letter, dated December 6, 2013, inviting particular organizations to contribute members to its drafting committee, emphasized the importance and wide use of this NSC, and therefore the importance of creating a new second edition. The first edition would have been in existence for more than ten years by the time the second edition was declared to be operative by the Standards Council.

But, as described in the full text, its second edition was fraudulently and incompetently created by CGSB, and the Standards Council knew that. It had received my complaint more than a year before it declared the final draft of the second edition to be an NSC. Nevertheless, the Council acted like an overly protective and permissive parent: (1) in defending CGSB against the many detailed allegations in my 100-page complaint text, (plus the additional 75 pages generated by the appeal processes I had to go through); and, (2) in attempting to cover-up CGSB’s incompetent performance throughout the 72.34(2d) drafting project. The Council made that more important to it than serving its purpose as an independent, impartial judge (of the work of SDOs) protecting the people of Canada from badly created national standards. What could motivate such openly irresponsible behavior? Suspected should be the creation of Innovation Canada, standardization in aid of innovation, and the importance they are to be given in the campaign leading up to the federal election on Monday, October 21, 2019.

As described in my complaint text, in its present published state, 72.34-2017 could cause large losses, particularly so in financial transactions that require proof of the reliability of records systems to produce reliable records. It should be a fit standard to be used in all legal proceedings wherein proof of the reliability of records, and therefore the reliability of the record systems from which they are obtained, is required. In the usual and ordinary course of business, such proof is provided by experts in records management by formally certifying compliance with this national standard. But in its present published form, this second edition should be withdrawn from public distribution immediately, and its drafting started again, but without the involvement of CGSB.

Until a proper second edition of 72.34 can be competently drafted and declared an NSC, the first edition (72.34-2005) should be reactivated to serve in its place. Until that is done, there will be no valid standard by which to certify the “integrity” of electronic records management systems (ERMSs). That cannot continue without risking substantial loss to existing and future agreements of all types.[4] And similarly, for the many laws that use national standards, such as section 31.2(1)(a) of the Canada Evidence Act (and its provincial and territorial counterparts) which makes proof of ERMS “integrity” a critical factor in determining the admissibility (acceptability) of electronic records as evidence. And section 31.5 states that such a standard may be used as a measure of the quality of that proof.

Innovation Canada, and all of the government’s promotion of innovation for “the knowledge economy,” will have to depend upon CGSB to sponsor the drafting of the national standards that it needs to promote the protection and monetizing of IP as valuable property. But with such a record of incompetence performance in the 72.34-2017 drafting project, CGSB will “taint” (undermine the integrity of) any standards-creation projects that it sponsors. As well, the integrity of the Standard Council’s exercise of its powers of declaring the draft national standards submitted to it by the nine accredited standards development organizations such as CGSB, to be national standards, should be equally suspect. Therefore, until the process for creating NSCs is revised to guarantee its competence and integrity, I would advise against any lawyer or other expert becoming a member of a CGSB committee to draft a National Standard of Canada.

But to the contrary, the present federal government is elevating and generously funding the Standard Council’s importance and prominence, and consequentially, the importance of CGSB as a standards development agency, because the subject matter of the necessary standards to be created falls within CGSB’s jurisdiction. Being on its mailing list, on April 10, 2018, 3:32 AM, I received the following email message from the Standards Council of Canada (which refers to itself as, “the SCC,” regardless that the Supreme Court of Canada is an older institution). Note: (1) how important a place the Standards Council’s message gives to itself within, “the Government of Canada’s Innovation and Skills Plan”; and, (2) the close and important connection between innovation and “standardization strategies to drive innovation” (inter alia, the development of national standards):

Introducing SCC’s Innovation Program / Présentation du programme d‘innovation du CCN

Is your SCC mirror committee[5] working on proposing a new work item with companies that have:

  • A history of growth;
  • A capacity and willingness to grow;
  • A strong management team;
  • A focus on export markets;
  • A focus on innovation;
  • A standardization gap where when filled would produce sustained company growth; or
  • A willingness and ability to invest time and resources in supporting the standardization activity?

We want to hear from you. A dedicated SCC advisor will work with you and the appropriate mirror committee to assess the opportunity and determine the appropriate level of SCC support to help grow your business.

Supporting the Government of Canada’s Innovation and Skills Plan

As part of Budget 2017, the Government of Canada introduced the Innovation and Skills Plan with an aim to accelerate the country’s economic growth and to create good, well-paying jobs. The Plan highlights the value of standards-setting in advancing Canada’s economic interests linked to growing globally successful companies. The Standards Council of Canada (SCC) has received $14.4M over five years to develop and advance standardization initiatives that will benefit Canadian innovators, enhance market access and create new middle class jobs.

SCC is working closely with leaders from within Canada’s existing innovation ecosystem (e.g. Innovation, Science and Economic Development Canada (ISED),[6] Sustainable Development Technology Canada (SDTC), Canadian Council of Innovators, etc.) to identify high-potential companies whose technologies, products, platforms, processes and/or services can benefit most from some form of standardization activity. Through early identification and active leadership in standards development, Canadian innovators can ensure early market access, influence and adoption of new technologies.

By working directly with Canadian innovators, SCC is providing tailored, end-to-end support to eligible companies in developing effective standardization strategies to drive innovation, accelerate the commercialization and adoption of Canadian innovations, and create a global market advantage for Canadian businesses. Activities include:

  • Identifying the most promising innovations that would benefit from standardization;
  • Building the case internationally as to why Canada should be entrusted with leadership in developing the relevant standards;
  • Actively participating in standards setting activities to bring advanced skills home to Canada and into Canada’s standardization network;
  • Garnering support from key standardization allies to obtain approval for new work item proposals;
  • Selecting and supporting credible Canadian innovators to be elected as leaders of relevant technical committees or working groups in order to manage and guide the standards drafting process;
  • Seeking to embed Canadian intellectual property, platforms or approaches in standards where appropriate;
  • Designing supportive international certification and accreditation programmes to facilitate international market access and regulatory compliance once standards are published; and
  • Engaging Canadian regulators to ensure new standards supporting Canadian innovations are referenced in relevant federal, provincial and territorial regulations, as well as in procurement where appropriate.

Link to Existing SCC Programs

SCC administers upwards of 490 National Mirror Committees to ISO [the International Organization for Standardization] and IEC [the International Electrotechnical Commission], accredits nine Canadian Standards Development Organizations and engages numerous national standards bodies, provides accreditation services, and continually enters into new work in areas of emerging priority to an evolving standardization system.

This means that supporting Canada’s Innovation and Skills Plan has direct links into the programs that make up the core mandate of SCC, and provides new opportunities to promote and expand Canada’s standardization network.

How to Get Involved

The Standards Council of Canada is continually seeking new innovative technologies, products, and/or services where Canadian stakeholders directly benefit from standardization solutions.

Please contact Alec Clark, Manager, Innovation and Regional/International Engagement (alec.clark@scc.ca, 613-238-3222 ext. 404) or Keith Jansa, Manager, Strategic Policy and Sector Engagement (kjansa@scc.ca, 613-238-3222 ext. 490) to learn more and to share your ideas.

And so the Standards Council’s functions are being made essential to the federal government’s “Innovation Skills Plan,” and the sponsoring of the drafting of the necessary national standards will fall within CGSB’s jurisdiction (i.e. to gather together the drafting “technical committees” of experts).

The Standards Council of Canada’s, Annual Report 2016-2017, Delivering Through Innovation, dated October 24, 2017 (52 pages), also shows that it will be a critically important partner in the work of Innovation Canada. At page 16, is this statement: “There are approximately 5,000 references to standards in Canadian federal, provincial and local regulations.”[7] The importance of Canada’s national standards, and the performance of the Standards Council, and of CGSB, make clear that the system for creating national standards must be substantially revised, its executives replaced or substantially re-trained, and the Standards Council of Canada Act amended accordingly.

Given the above substantial commitments of the federal government so publically and prominently made, no agency or representative of the federal government can now create the appearance of its being able to conduct an impartial, objective inquiry into: (1) the grossly incompetent creation of the 72.34-2017 national standard; (2) the competence and integrity of the Standards Council and of CGSB; and, (3) the integrity and viability of Canada’s national standards creation process, including the efficacy and integrity of the process of accrediting SDOs such CGSB, and the quality control of their performance thereafter. As the full text describes, that history of creation and the attempt to cover it up involve these federal government agencies: (1) the Treasury Board of Canada Secretariat, which initiated the 72.34(2d) project by way of an illegal contract entered into with CGSB; (2) the Canadian General Standards Board (CGSB); (3) the Standards Council of Canada; (4) the Department of Justice, whom I notified of the March 1, 2017 declaration of the 72.34-2017 national standard, and to whom by way of three separate submissions, I sent a substantial part of the material that is in the full text, and including the above Slaw article of February 2, 2017; and, (5) the Commissioner of the Office of the Public Sector Integrity Commissioner of Canada, who, after reviewing the 175 pages of complaint and appeals texts that I submitted, concluded four months later, that there was no reason for his office to conduct an investigation.

Our lives are already more dependent upon the many applications of electronic technology to the use of information and data than they are dependent upon motor vehicles. However, the manufacture of motor vehicles is highly regulated, while such applications of electronic technology have almost no legal infrastructure to control their development, manufacture, use, and maintenance. Because of the great complexity and wide and intense use of electronic technology, the legislation and regulations necessary will have to be made very dependent upon national standards yet to be created. The Standards Council of Canada as it presently is, cannot be left in charge of that standards-creation process. Nor can CGSB as it presently is, be entrusted with the development of draft national standards. Organizations that have intentionally published such a dangerously corrupted and widely used NSC as is 72.34-2017, should not be entrusted with the creation of any NSC.

Decisions as to the future of the standardization process must be based upon the assumption that the facts of the creation of 72.34-2017, and the attempts to “cover-up” those facts, will become widely known. A substantial revision of the standards-creation process is mandatory, otherwise those facts will “taint” (undermine the credibility of) every present and future National Standard of Canada. The creation of 72.34-2017, it being unworthy and incapable of any proper usage, caused a great waste of taxpayers’ money, and of the drafting committee members’ freely-given time, and the taxpayer paid-for time of all of the federal government employees involved, including that of the Treasury Board officials who entered into the contract with CGSB that initiated the 72.34(2d) project, which CGSB knew to be, and the Standards Council should have declared to be an illegal contract, it being contrary to the process of “voluntary standardization” created by the Standards Council of Canada Act, and to the Council’s requirements for the accreditation of SDOs, and its “Mandate, Mission and Vision” webpage, and therefore contrary to CGSB’s own terms of accreditation.

The several federal government agencies involved have either failed to respond adequately, or committed themselves to false formal statements in writing in response to my allegations and appeals. Collectively such conduct constitutes an extensive cover-up of substantial unethical behavior. Therefore, given the limited time available, the truth will not be revealed in a timely manner unless all persons involved are examined under oath by independent counsel in an open inquiry. This matter is that serious.

If instead, the present unchallenged state of the 72.34-2017 drafting project remains, it tells SDOs such as CGSB, that without fear of censure or punishment by the Standards Council of Canada, they can receive and solicit funding from sources that thereby wish to “buy” an NSC, and wish to manage the drafting project to achieve a desired content and deadline.

And so, there are a number of urgent questions requiring independent, expert investigation, such as:

  1. Why did the agencies involved, particularly the Standards Council and CGSB, perform so badly, openly so, and apparently with inadequate concern for their own vulnerability to criticism, punishment, and the potential legal liability for damage caused to people and organizations relying upon the faulty 72.34-2017 national standard?
  2. Who, or which organizations or government departments could bring about such consistently and similarly incompetent conduct, by so many government organizations, in regard to the same single standards-creation project?
  3. Is there any connection between: (1) the Standards Council’s refusal to discipline CGSB and its declaring the 72.34-2017 final draft to become an NSC in spite of the history of its creation and the errors it contains; and, (2) the Standard Council’s importance to the Innovation Canada project, in preparation for the prominent place that it, and along with the department of Innovation, Science, and Economic Development Canada, will have in the next federal election campaign; (that election is to take place on Monday, October 21, 2019)?
  4. Is there not more than enough evidence indicating that the process for creating national standards is very obsolete and needs substantial revision? Its obsolescence grows as the product of its rapidly increasing importance grows, that being the product of society’s ever-increasing dependence upon technology and innovation.
  5. What should ERMS experts tell their clients and employers about the current absence of a credible national standard with which to certify the reliability of their records systems?

But answering such questions is not going to be adequately done and the answers implemented unless investigative journalism makes it happen. This article should interest such journalists to do that.

__________________________

[1] The full text is 243 pages long, consisting of a comprehensive Introduction (56 pages); my original complaint to the Standards Council of Canada (100 pages); plus my appeal texts and the responses thereto.

[2] And that project includes the federal government’s support for the creation of “clusters” such as Silicon Valley in the southern San Francisco Bay Area of Northern California, “which serves as the global center for high technology, venture capital, innovation, and social media” (quoting from the Wikipedia article describing Silicon Valley).

[3] The Standards Council declares draft standards submitted to it by standards development organizations (SDOs) such as the Canadian General Standards Board, to be National Standards of Canada. The first edition of 72.34 was declared to be an NSC in December 2005, entitled, Electronic Records as Documentary Evidence CAN/CGSB-72.34-2005. I was the legal advisor to the drafting committee. The final draft submitted to Standards Council took three years to complete (2000-2003).

[4] When lawyers are taught about the existence of such national standards, they will be an essential part of all prosecutions and causes of action dependent for adequate proof upon the use of reliable records as evidence.

[5] A national mirror committee (NMC) is a, “National structure set up to mirror the work of an ISO Technical Committee within a National Standards Body [such as the Standards Council of Canada]. The NMC brings together stakeholders to establish a national consensus position on the work.” The ISO is the International Organization for Standardization in Geneva, Switzerland. (“ISO” is the commonly used acronym in all languages, regardless the differing order of the words in its title as stated in different languages.)

[6] The Standards Council of Canada reports to Parliament through the Minister of Innovation, Science and Economic Development. Oversight is provided by the Council’s Governing Council which approves the strategic direction of the organization.

[7] 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.” At minute, 25:12 of the panel discussion video, one of the panelists 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, … .”

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