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The federal government’s “Budget 2017,” Innovation Canada project has led to the badly drafted National Standard of Canada, Electronic Records as Documentary Evidence CAN/CGSB-72.34-2017 (“72.34-2017”). It should not be relied upon to conduct any business, government or other transaction based upon the reliability and integrity of electronically-produced records. And so, on July 11, 2018, I, Ken Chasse, notified: (1) the Standards Council of Canada, being the agency that declared it to be a national standard; and, (2) the Minister of Innovation, Science and Economic Development. On, July 20, 2018, I received the Standards Council’s reply, and on July 24, 2018, the Minister’s reply. Both are reproduced below this text, which is my Notification text:

The federal government’s “Budget 2017,” Innovation Canada project has led to the above badly drafted National Standard of Canada that should not be relied upon to conduct any business, government or other transaction based upon the reliability and integrity of electronically-produced records.

I am a lawyer. And I was the Chair of the drafting committee for that standard. This message is meant to inform you of the corrupt and incompetent conduct concerning departments of the federal government in relation to the creation of this most important national standard.

Because all residents of Canada depend upon records, not only our own, but also the records of others who make decisions for us and about us, there cannot be a national standard of greater importance than 72.34-2017.

Being a second edition of the very successful first edition, 72.34-2005, (which well served its purpose from December 2005, until it was replaced by 72.34-2017 on March 1, 2017), it will be relied upon by hundreds of experts in electronic records management, to certify compliance with it by many hundreds of electronic records management systems in Canada. Such certifications are provided by experts in electronic records management, both as experts serving institutional clients and as employed records managers. Such certifications ensure the production of reliable records. Records are the necessary foundations of many thousands of business, government, and institutional transactions upon which many thousands of reputations depend, and equally dependent is the disposition of many millions of dollars of property.

The 72.34-2017 national standard sets out the principles and practices for reliable electronic records management and therefore, for the production of reliable records. But we are now without a validly created second edition of that national standard. Experts in electronic records management must tell their clients and employers, who ask for formal certifications of records systems’ compliance, that no such certifications are possible.

And, for Innovation Canada to give its declarations of enforceable principles and practices for the preservation of intellectual property (IP) the highest authority, it will be dependent upon the creation of National Standards of Canada containing those principles and practices. They will be drafted under the sponsorship of the Canadian General Standards Board (CGSB), and declared to be published National Standards of Canada by the Standards Council of Canada. But it is those two agencies of the federal government that should be held accountable for the intentionally rushed, and as a result, badly drafted and published national standard, 72.34-2017.

Innovation Canada is a division of the federal department of, Innovation, Science and Economic Development Canada. Closely related is the government’s promotion of standardization as part of its method of developing intellectual property as, “intangible property of great value for the knowledge economy.” In aid thereof, the Standards Council of Canada has announced, by way of an email message distributed on April 10, 2018 (reproduced in the second of the published articles listed at the end of page 7 below), that it will receive $14.4 million to promote its innovation and standardization program. The Council’s message emphasizes the importance of standardization to that project, and therefore also emphasizes the importance of the Standards Council itself to the business community in the promotion of innovation along with the use of standardization in developing such innovation. But in fact, the Standards Council and CGSB have shown themselves to be incapable of publishing a competent version of a national standard as important as 72.34-2017.

The 72.34-2017 national standard is related to the federal government’s Budget 2017, high priority Innovation Canada project. Its Fact Sheet, Skills, Innovation and Middle Class Jobs, states, “Budget 2017’s Innovation and Skills Plan advances an agenda to make Canada a world-leading centre for innovation, [and] to help create more good, well-paying jobs, and help strengthen and grow the middle class.” In addition, it will assist in the creation of “clusters of innovative organizations” such as Silicon Valley in California. And, “the Government of Canada will offer substantial financial support through its, Strategic Innovation Fund,” and its, “Intellectual Property Strategy.”[1]

Because of a very-difficult-to-meet deadline imposed by way of an improper contract between the Treasury Board of Canada Secretariat and CGSB, to create the new second edition that is 72.34-2017, the Standards Council declared the draft standard submitted to it by CGSB to be a published National Standard of Canada, even though the Council knew that it had been created by way of several serious violations of required procedures. As a result, 72.34-2017 contains many errors. Long before it was declared to be a national standard, by way of a 100-page, detailed complaint, I informed the Standards Council about those errors and of the improper procedures used in its creation. Nevertheless just such a very faulty draft was used by CGSB to perform the “public review” stage of the required drafting procedure.

The contract between Treasury Board and CGSB was improper, if not illegal, because national standards are to be created independently of government and to serve the public interest, rather than being created under the management of government, to serve a government interest. Therefore it violated the purpose of the Standards Council of Canada Act, which establishes a process of “voluntary standardization,” wherein national standards are created to serve the public interest. Such required “public interest” and “government control” are incompatible in the creation of national standards.

Because we all depend upon the reliability of records, both our own and those of the people and institutions that make decisions for us and about us, there cannot be a national standard more important than 72.34-2017. But because of the errors in it and the incompetent way in which it was created, it should be formally withdrawn and declared inactive. Relying upon it now will create a faulty foundation for many institutional and other formal transactions that depend upon an exchange of records of expected and assumed reliability as to the methods of their creation, storage, and management. That could result in very large law suits and the damaging of the reputations of the people accountable for such transactions.

A records system certified as being compliant with a national standard as faulty as 72.34-2017, upon which many large and important commercial transactions and legal proceedings were based, could result in very large law suits brought against the Standards Council of Canada. It could be held to be the prime and originating cause of any such damage done to property, institutions, and reputations. Taxpayers’ money would have to pay for such damage. I expressly warned of such dangers and losses in my complaint—see: Ken Chasse, “Innovation Canada, IP, and Dependence Upon the Standards Council of Canada” (published on the SSRN, Feb. 2, 2018, Sections 23-25, at pages 126-133), which text contains my complaint to the Standards Council.

The reliability of the continued existence and accessibility of an electronic record in the form in which it is recorded and stored depends upon the reliability of the electronic records management systems by which it is created, stored, and reproduced. And the purpose of certification of compliance with the 72.34-2017 national standard is to provide proof of the reliability of such electronic records management systems. But in fact, the creation of 72.34-2017 in its present form “taints” (undermines the credibility of) all national standards and as well, the certifications of compliance based upon them.

As a matter of abundant caution, any person in a management position must assume that the incompetent manner in which the national standard that is 72.34-2017 has been created, will become widely known. It always does, especially so where a “cover-up” is attempted as have CGSB and the Standards Council. Therefore, they should not be part of a project as important as that which Innovation Canada and Innovation, Science and Economic Development Canada are intended to serve. Among the various forms of damage that would be done, the large sums of taxpayers’ money that are to be spent should not be put in such jeopardy of being wasted, and further funds having to be spent to “clean up the mess.”

Because of those very faulty procedures, I and the other senior lawyer, Martin Felsky,[2] responsible for drafting 72.34-2017’s legal section, resigned part-way through the project (in June, 2015). The published standard’s legal section contains many errors because unqualified people were allowed to take part in drafting it. We could not remain part of a project that would publish a grossly improperly made national standard. Nonetheless, CGSB carried on with the project. Its violations of required procedures included: (1) in addition to the improper contract that CGSB made with the Treasury Board of Canada Secretariat, giving the government control of the drafting project; but also, (2) allowing unqualified people to draft portions of the standard; (3) directing all procedures in spite of the complaints from members of the drafting committee; and; (4) conducting the “public review” stage in a very false and misleading way.

A formal public review warrants that the draft standard so provided for examination and comment: (1) has been drafted in accordance with the required procedures; and, (2) contains no known errors. CGSB knew that it was violating both requirements. Such a public review increases the probability of greater quality of content being achieved. And it also fulfils the requirement of democratic governance that those who are to be subject to a law, regulation, or a text of such broad importance and application, be able to participate in its creation.

The evidence compels the conclusion that CGSB committed these violations in order to meet the deadline set by its contract with Treasury Board, which in fact it failed to achieve despite its very aggressive and overbearing tactics.

Because of the very serious accusations in my complaint text made against CGSB and the procedures that it was imposing upon the committee, the Standards Council should have dealt with my complaint itself. Instead, it sent my complaint to CGSB to be dealt with. I sent a formal “objection text” to the Standards Council, objecting to its allowing CGSB to be in effect, “the judge of its own case.” CGSB’s written response by letter, to my complaint denied everything and asserted its own “alternative facts.” Therefore I proceeded through the complaint’s appeal process, including a final appeal to the Standards Council once more. Its answer was simply to state that no wrong had been done, and therefore it considered “the matter of my complaint to be closed.” And to show that it was completely “done with the matter,” the Council failed to respond to my two requests for a copy of the report of the investigation of my complaint (my requests were sent by email on, December 15, 2016, and January 16, 2017). I received not even a polite refusal.

The very incompetent and rushed procedures used to create this most important national standard were very likely the product of a desire to have it published as soon as possible, as an important aspect of the federal government’s Innovation Canada project, and the Standards Council’s and standardization’s part in it. And so it is that even though there are many errors in the 72.34-2017 national standard, it has been allowed to remain as a published national standard that can be freely downloaded by anyone. It would be very embarrassing for CGSB and the Standards Council to be seen to withdraw this standard from public access and circulation, particularly so now that the Standards Council and the federal government will be emphasizing the importance of standardization to the preservation and monetizing of IP, and to serving the purposes of Innovation Canada. That would be an admission that the standard is as bad as in fact it is.

But, it is potentially very harmful and therefore dangerous as a publically available national standard. It should be withdrawn from public access immediately. The first edition, 72.34-2005, should be re-activated and remain operative until a competent second edition can be drafted and properly declared to be a National Standard of Canada.

By way of its email message of April 10th, the Standards Council published the fact that it, the Council, will be very important to the government’s promotion of standardization as a key aspect of the Innovation Canada project. But its performance, and that of CGSB, in the creation of the 72.34-2017 national standard, should create great concern as to their competence, and the integrity of the whole process of creating National Standards of Canada.

It is a process that needs to be substantially revised, if not totally replaced, and the Standards Council of Canada Act amended accordingly. In particular, the Standards Council lacks an effective ability to impose and enforce principles of quality control. Therefore it cannot perform its duty to act as an agency independent of government, to protect the people of Canada from the publication of poor quality national standards. And, creation of national standards is now too important to remain entrusted to the process of “voluntary standardization” created by the Act.

Instead of acting as an independent, and “at arms’ length” and competent judge of the draft standards submitted to it, the Standards Council acted as a very protective and permissive parent for CGSB and the creation of the 72.34-2017 national standard. Consequentially, the Standards Council has acted as a protective agency in aid of the federal government’s Innovation Canada project. That is to say, in response to my complaint and appeals, agencies of the federal government have together and consistently in the service of their government, engaged in a “cover-up” of very incompetent and dishonest behavior.

My complaint emphasized that CGSB was about to defraud the Council into proclaiming a badly drafted standard to be a national standard of great importance and dependability. But for my complaint I said, the Council would not have known of any of CGSB’s many violations of required procedures and tolerance of error-ridden content. Nor would it have known of my and Martin Felsky’s resignations, and the reasons for our resignations. The full committee should have been provided copies of our resignation statements. They contained no personal information, but rather substantial criticism of CGSB’s management of the project. What discussion was there of the fact that the committee had lost the specialized legal expertise necessary for the legal section of the standard?

Now, with the greater experience and analysis provided by the almost three years since I first sent my complaint to the Council (on October 21, 2015), I believe that the Council knew what was coming from CGSB, and how it would have to be created. That must be why the Standards Council of Canada: (1) first “brushed me off,” (so abruptly dismissive was it of my final appeal to it, by emailed letter received on December 13, 2016); and then, (2) so egregiously and intentionally failed to perform its duty as “the public face” of, and protector of, the integrity of the national standards-creation process by proclaiming and completing CGSB’s fraud upon the public to be a National Standard of Canada on March 1, 2017.

Because the 72.34-2017 national standard is worthless, as well as dangerous in its present form, its CGSB drafting project wasted: (1) the $50,000 given to CGSB by Treasury Board; (2) the salaries that paid for the time taken of the government employees involved; and, (3) the willingly given but unpaid-for hundreds of hours provided by all of the many members of the drafting committee, including those of us who served on the working group to draft the several editions of the draft standard.

As society becomes ever more dependent upon electronic systems and devices, many more national standards will have to be created to regulate their manufacture, use, and maintenance. But creation of such national standards dealing with this type of technology is within the present jurisdiction of CGSB and the Standards Council. And so it is that they have been given a prominent place in the promotion of Innovation Canada. A competent manager would assume in accordance with prudent management, that the history of the creation of 72.34-2017 will become widely known. Therefore, steps must be taken now to correct this situation from remaining as a constant threat to the efficacy and reputation of the process for creating National Standards of Canada. That cannot be done while 72.34-2017 in its present form remains as a published national standard.

An authoritative, public, impartial, and independent-of-government investigation is needed. Otherwise matters will remain in their present dangerous state. And, the government agencies at fault, by reason of having weathered my now failed complaint and appeals, will have strengthened their belief that they will be impervious to censure and punishment if, at the command of government or an authority of comparable power, they need again perform with such incompetence and neglect of duty to the people of Canada. With such precedent now established, and so far to this day successful, such an authority might well be a willing agency, private or commercial, providing funding in exchange for control of the creation or updating of a standard’s content and timetable, as did Treasury Board.

And similarly, the unqualified people who were allowed to add their own personally biased verbiage to the daft standard lacked the experience and competence to justify it. CGSB allowed that in exchange for adding greater speed to its rush to completion.

The very open, and intentionally neglectful way in which CGSB and the Standards Council carried out their serious violations of required procedures and duties, ignoring complaints and errors, creates a strong presumption that they have used such tactics before. As a result, a person responsible for an important transaction dependent upon the reliability of electronically-produced records, and knowing of the history of the creation of the 72.34-2017 national standard, must assume as a matter of abundant caution, that competent management of the process for creating national standards does not exist.

That is why I say that the integrity and reputation of that process is very much at risk of total destruction, along with that of all National Standards of Canada. Therefore, only a publically open, impartial, and independent-of-government investigation of that history of 72.34-2017, can ensure that, that destruction does not happen. Remove the “taint,” or all of the government agencies involved will remain tainted.

I have published the following articles on this subject by which one can judge my allegations of incompetence in the process by which National Standards of Canada are created. The titles are hyperlinked for easy access (CTRL + click on the title to follow the link):

(1) “Innovation Canada, IP, and Dependence Upon the Standards Council of Canada,” March 22, 2018. It is a summary of the large third article below. It is published in the blog, Slaw, which is widely read by lawyers throughout Canada and elsewhere.)

(2) “Election Politics, Innovation Canada, IP, and Dependence Upon the Standards Council of Canada,” Slaw, May 24, 2018. It reproduces the Standards Council’s April 10, 2018, email message referred to above;

(3) “Innovation Canada, IP, and Dependence Upon the Standards Council of Canada,” (243 pages, published, February 2, 2018, on the Social Science Research Network (the SSRN).) This article contains: (1) a detailed summary of 53 pages, of all of my actions and the texts involved; (2) a chronology (pp. 54-56), that lists all events to the date of this third published text; followed by, (3) all of the supporting texts referred to above, which include, my complaint and the appeals texts, and the responses of, CGSB, the Standards Council of Canada, and that of the federal Office of the Public Sector Integrity Commissioner of Canada (by letter dated, September 13, 2017). He, the Integrity Commissioner, concluded, after reviewing all previous stages and texts that I had provided (totaling, 190 pages), that, “Consequently, I have a valid reason not to commence an investigation into your allegations.” (page 243 of this third text).

[1] See also: Michael Geist’s columns of, July 3rd, and July 5th, 2018, on, “Unpacking Canada’s IP Strategy: Countering IP Abuse, Addressing IP Administration and Removing IP Barriers to Innovation.”

[2] Martin Felsky is a litigation 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.

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– here is the Standards Council of Canada’s reply, received by email on July 20, 2018:

Dear Mr. Chasse,

Thank you for your recent email. We appreciate you sharing your thoughts with us.

As you may recall, an investigation was completed in 2016 surrounding the process employed by CGSB in the preparation of a second edition of the National Standard of Canada (NSC) -Electronic Records as Documentary Evidence CAN/CGSB-Z72.34-2005. That investigation found CGSB to be in compliance with its own procedures and with SCC’s requirements.

Thank you again.

Sincerely,

Enquiry Services

Standards Council of Canada | Conseil canadien des normes

600-55 Metcalfe Street, Ottawa ON K1P 6L5 | 55, rue Metcalfe, bureau 600, Ottawa (Ontario) K1P 6L5

613 238-3222, ext./poste 473

http://www.scc-ccn.ca/

———————————o

– and here is reply on behalf of the Minister of Innovation, Science and Economic Development, received July 24, 2018:

Dear Mr. Chasse:

Thank you for your correspondence of July 11, 2018, expressing your concerns related to the development and publication of the National Standard of Canada CAN/CGSB-72.34-2017. The Honourable Navdeep Bains, Minister of Innovation, Science and Economic Development, has asked that I reply on his behalf. I appreciate hearing your perspective on this matter.

The Government of Canada recognizes the important role that standards play in driving innovation and ensuring economic prosperity. In recognition of this, and as you noted, Budget 2017 allocated $14.4M in program funding to the Standards Council of Canada (SCC) in support of the Superclusters Initiative, a component of Canada’s Innovation and Skills Plan. In Budget 2018, the SCC attained another $11M in funding to create a standard setting strategy to promote the inclusion of Canadian innovations in standards.

The SCC is mandated by the federal government to promote and pursue effective and efficient Canadian standardization. The SCC accredits standardization organizations, verifying that they have the resources, structures and expertise to deliver credible, high-quality services.

I understand that you have previously raised concerns regarding the process that led to the designation of 72.34-2017 as a National Standard of Canada with the SCC and that an assessment was conducted. While I am not aware of the particulars of that complaint or the terms of the contract between the Treasury Board and the Canadian General Standards Board, I can appreciate the necessity of a robust accreditation process. That is why before being designated as a National Standard of Canada, the SCC verifies that a standard has to meet certain key requirements, including that it has been developed by consensus from a balanced committee of stakeholders, and subjected to public scrutiny.

I appreciate you taking the time to share your views on this matter.

Sincerely,

Lisa Setlakwe

Senior Assistant Deputy Minister

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