Consequences to Innovation Canada and IP of a Badly Drafted National Standard of Canada

The federal authorities’s “Funds 2017,” Innovation Canada undertaking has led to the badly drafted National Standard of Canada, Digital Data as Documentary Proof CAN/CGSB-72.34-2017 (“72.34-2017”). It shouldn’t be relied upon to conduct any enterprise, authorities or different transaction primarily based upon the reliability and integrity of electronically-produced data. And so, on July 11, 2018, I, Ken Chasse, notified: (1) the Requirements Council of Canada, being the company that declared it to be a nationwide customary; and, (2) the Minister of Innovation, Science and Financial Growth. On, July 20, 2018, I obtained the Requirements Council’s reply, and on July 24, 2018, the Minister’s reply. Each are reproduced under this textual content, which is my Notification textual content:

The federal authorities’s “Funds 2017,” Innovation Canada undertaking has led to the above badly drafted National Standard of Canada that shouldn’t be relied upon to conduct any enterprise, authorities or different transaction primarily based upon the reliability and integrity of electronically-produced data.

I’m a lawyer. And I used to be the Chair of the drafting committee for that customary. This message is supposed to inform you of the corrupt and incompetent conduct regarding departments of the federal authorities in relation to the creation of this most vital nationwide customary.

As a result of all residents of Canada depend on data, not solely our personal, but additionally the data of others who make choices for us and about us, there can’t be a nationwide customary of larger significance than 72.34-2017.

Being a second version of the very profitable first version, 72.34-2005, (which effectively served its goal from December 2005, till it was changed by 72.34-2017 on March 1, 2017), it will likely be relied upon by a whole bunch of consultants in digital data administration, to certify compliance with it by many a whole bunch of digital data administration programs in Canada. Such certifications are offered by consultants in digital data administration, each as consultants serving institutional shoppers and as employed data managers. Such certifications make sure the manufacturing of dependable data. Data are the required foundations of many 1000’s of enterprise, authorities, and institutional transactions upon which many 1000’s of reputations rely, and equally dependent is the disposition of many hundreds of thousands of {dollars} of property.

The 72.34-2017 nationwide customary units out the ideas and practices for dependable digital data administration and due to this fact, for the manufacturing of dependable data. However we are actually with out a validly created second version of that nationwide customary. Specialists in digital data administration should inform their shoppers and employers, who ask for formal certifications of data programs’ compliance, that no such certifications are doable.

And, for Innovation Canada to give its declarations of enforceable ideas and practices for the preservation of mental property (IP) the best authority, it will likely be dependent upon the creation of National Requirements of Canada containing these ideas and practices. They are going to be drafted beneath the sponsorship of the Canadian Basic Requirements Board (CGSB), and declared to be printed National Requirements of Canada by the Requirements Council of Canada. However it’s these two businesses of the federal authorities that needs to be held accountable for the deliberately rushed, and as a end result, badly drafted and printed nationwide customary, 72.34-2017.

Innovation Canada is a division of the federal division of, Innovation, Science and Financial Growth Canada. Intently associated is the federal government’s promotion of standardization as half of its methodology of creating mental property as, “intangible property of nice worth for the data economic system.” In assist thereof, the Requirements Council of Canada has introduced, by method of an e-mail message distributed on April 10, 2018 (reproduced within the second of the printed articles listed on the finish of web page 7 under), that it’ll obtain $14.Four million to promote its innovation and standardization program. The Council’s message emphasizes the significance of standardization to that undertaking, and due to this fact additionally emphasizes the significance of the Requirements Council itself to the enterprise group within the promotion of innovation together with the use of standardization in creating such innovation. However the truth is, the Requirements Council and CGSB have proven themselves to be incapable of publishing a competent model of a nationwide customary as vital as 72.34-2017.

The 72.34-2017 nationwide customary is said to the federal authorities’s Funds 2017, excessive precedence Innovation Canada undertaking. Its Truth Sheet, Abilities, Innovation and Center Class Jobs, states, “Funds 2017’s Innovation and Abilities Plan advances an agenda to make Canada a world-leading centre for innovation, [and] to assist create extra good, well-paying jobs, and assist strengthen and develop the center class.” As well as, it would help within the creation of “clusters of revolutionary organizations” akin to Silicon Valley in California. And, “the Authorities of Canada will provide substantial monetary help by means of its, Strategic Innovation Fund,” and its, “Mental Property Technique.”[1]

As a result of of a very-difficult-to-meet deadline imposed by method of an improper contract between the Treasury Board of Canada Secretariat and CGSB, to create the brand new second version that’s 72.34-2017, the Requirements Council declared the draft customary submitted to it by CGSB to be a printed National Standard of Canada, though the Council knew that it had been created by method of a number of critical violations of required procedures. As a end result, 72.34-2017 comprises many errors. Lengthy earlier than it was declared to be a nationwide customary, by method of a 100-page, detailed criticism, I knowledgeable the Requirements Council about these errors and of the improper procedures utilized in its creation. However simply such a very defective draft was utilized by CGSB to carry out the “public evaluate” stage of the required drafting process.

The contract between Treasury Board and CGSB was improper, if not unlawful, as a result of nationwide requirements are to be created independently of authorities and to serve the general public curiosity, slightly than being created beneath the administration of authorities, to serve a authorities curiosity. Subsequently it violated the aim of the Requirements Council of Canada Act, which establishes a course of of “voluntary standardization,” whereby nationwide requirements are created to serve the general public curiosity. Such required “public curiosity” and “authorities management” are incompatible within the creation of nationwide requirements.

As a result of all of us depend on the reliability of data, each our personal and these of the individuals and establishments that make choices for us and about us, there can’t be a nationwide customary extra vital than 72.34-2017. However as a result of of the errors in it and the incompetent method by which it was created, it needs to be formally withdrawn and declared inactive. Relying upon it now will create a defective basis for a lot of institutional and different formal transactions that depend on an change of data of anticipated and assumed reliability as to the strategies of their creation, storage, and administration. That might end in very giant regulation fits and the damaging of the reputations of the individuals accountable for such transactions.

A data system licensed as being compliant with a nationwide customary as defective as 72.34-2017, upon which many giant and vital business transactions and authorized proceedings had been primarily based, may end in very giant regulation fits introduced towards the Requirements Council of Canada. It might be held to be the prime and originating trigger of any such injury completed to property, establishments, and reputations. Taxpayers’ cash would have to pay for such injury. I expressly warned of such risks and losses in my criticism—see: Ken Chasse, “Innovation Canada, IP, and Dependence Upon the Requirements Council of Canada” (printed on the SSRN, Feb. 2, 2018, Sections 23-25, at pages 126-133), which textual content comprises my criticism to the Requirements Council.

The reliability of the continued existence and accessibility of an digital file within the type by which it’s recorded and saved relies upon upon the reliability of the digital data administration programs by which it’s created, saved, and reproduced. And the aim of certification of compliance with the 72.34-2017 nationwide customary is to present proof of the reliability of such digital data administration programs. However the truth is, the creation of 72.34-2017 in its current type “taints” (undermines the credibility of) all nationwide requirements and as effectively, the certifications of compliance primarily based upon them.

As a matter of ample warning, any particular person in a administration place should assume that the incompetent method by which the nationwide customary that’s 72.34-2017 has been created, will turn out to be extensively recognized. It at all times does, particularly so the place a “over-up” is tried as have CGSB and the Requirements Council. Subsequently, they shouldn’t be half of a undertaking as vital as that which Innovation Canada and Innovation, Science and Financial Growth Canada are meant to serve. Among the many numerous types of injury that may be completed, the massive sums of taxpayers’ cash which might be to be spent shouldn’t be put in such jeopardy of being wasted, and additional funds having to be spent to “clear up the mess.”

As a result of of these very defective procedures, I and the opposite senior lawyer, Martin Felsky,[2] liable for drafting 72.34-2017’s authorized part, resigned part-way by means of the undertaking (in June, 2015). The printed customary’s authorized part comprises many errors as a result of unqualified individuals had been allowed to participate in drafting it. We couldn’t stay half of a undertaking that may publish a grossly improperly made nationwide customary. Nonetheless, CGSB carried on with the undertaking. Its violations of required procedures included: (1) as well as to the improper contract that CGSB made with the Treasury Board of Canada Secretariat, giving the federal government management of the drafting undertaking; but additionally, (2) permitting unqualified individuals to draft parts of the usual; (3) directing all procedures in spite of the complaints from members of the drafting committee; and; (4) conducting the “public evaluate” stage in a very false and deceptive method.

A proper public evaluate warrants that the draft customary so offered for examination and remark: (1) has been drafted in accordance with the required procedures; and, (2) comprises no recognized errors. CGSB knew that it was violating each necessities. Such a public evaluate will increase the likelihood of larger high quality of content material being achieved. And it additionally fulfils the requirement of democratic governance that those that are to be topic to a regulation, regulation, or a textual content of such broad significance and utility, have the opportunity to take part in its creation.

The proof compels the conclusion that CGSB dedicated these violations so as to meet the deadline set by its contract with Treasury Board, which the truth is it failed to obtain regardless of its very aggressive and overbearing ways.

As a result of of the very critical accusations in my criticism textual content made towards CGSB and the procedures that it was imposing upon the committee, the Requirements Council ought to have handled my criticism itself. As a substitute, it despatched my criticism to CGSB to be handled. I despatched a formal “objection textual content” to the Requirements Council, objecting to its permitting CGSB to be in impact, “the choose of its personal case.” CGSB’s written response by letter, to my criticism denied all the pieces and asserted its personal “different info.” Subsequently I proceeded by means of the criticism’s enchantment course of, together with a closing enchantment to the Requirements Council as soon as extra. Its reply was merely to state that no flawed had been completed, and due to this fact it thought of “the matter of my criticism to be closed.” And to present that it was fully “completed with the matter,” the Council failed to reply to my two requests for a copy of the report of the investigation of my criticism (my requests had been despatched by e-mail on, December 15, 2016, and January 16, 2017). I obtained not even a well mannered refusal.

The very incompetent and rushed procedures used to create this most vital nationwide customary had been very seemingly the product of a want to have it printed as quickly as doable, as an vital facet of the federal authorities’s Innovation Canada undertaking, and the Requirements Council’s and standardization’s half in it. And so it’s that though there are a lot of errors within the 72.34-2017 nationwide customary, it has been allowed to stay as a printed nationwide customary that may be freely downloaded by anybody. It might be very embarrassing for CGSB and the Requirements Council to be seen to withdraw this customary from public entry and circulation, significantly so now that the Requirements Council and the federal authorities might be emphasizing the significance of standardization to the preservation and monetizing of IP, and to serving the needs of Innovation Canada. That may be an admission that the usual is as dangerous as the truth is it’s.

However, it’s doubtlessly very dangerous and due to this fact harmful as a publically accessible nationwide customary. It needs to be withdrawn from public entry instantly. The primary version, 72.34-2005, needs to be re-activated and stay operative till a competent second version could be drafted and correctly declared to be a National Standard of Canada.

By method of its e-mail message of April 10th, the Requirements Council printed the truth that it, the Council, might be crucial to the federal government’s promotion of standardization as a key facet of the Innovation Canada undertaking. However its efficiency, and that of CGSB, within the creation of the 72.34-2017 nationwide customary, ought to create nice concern as to their competence, and the integrity of the entire course of of creating National Requirements of Canada.

It’s a course of that wants to be considerably revised, if not completely changed, and the Requirements Council of Canada Act amended accordingly. Particularly, the Requirements Council lacks an efficient skill to impose and implement ideas of high quality management. Subsequently it can’t carry out its responsibility to act as an company unbiased of authorities, to shield the individuals of Canada from the publication of poor high quality nationwide requirements. And, creation of nationwide requirements is now too vital to stay entrusted to the method of “voluntary standardization” created by the Act.

As a substitute of performing as an unbiased, and “at arms’ size” and competent choose of the draft requirements submitted to it, the Requirements Council acted as a very protecting and permissive father or mother for CGSB and the creation of the 72.34-2017 nationwide customary. Consequentially, the Requirements Council has acted as a protecting company in assist of the federal authorities’s Innovation Canada undertaking. That’s to say, in response to my criticism and appeals, businesses of the federal authorities have collectively and persistently within the service of their authorities, engaged in a “cover-up” of very incompetent and dishonest habits.

My criticism emphasised that CGSB was about to defraud the Council into proclaiming a badly drafted customary to be a nationwide customary of nice significance and dependability. However for my criticism I stated, the Council wouldn’t have recognized of any of CGSB’s many violations of required procedures and tolerance of error-ridden content material. Nor wouldn’t it have recognized of my and Martin Felsky’s resignations, and the explanations for our resignations. The total committee ought to have been offered copies of our resignation statements. They contained no private info, however slightly substantial criticism of CGSB’s administration of the undertaking. What dialogue was there of the truth that the committee had misplaced the specialised authorized experience crucial for the authorized part of the usual?

Now, with the larger expertise and evaluation offered by the just about three years since I first despatched my criticism to the Council (on October 21, 2015), I consider that the Council knew what was coming from CGSB, and how it might have to be created. That have to be why the Requirements Council of Canada: (1) first “brushed me off,” (so abruptly dismissive was it of my closing enchantment to it, by emailed letter obtained on December 13, 2016); and then, (2) so egregiously and deliberately failed to carry out its responsibility as “the general public face” of, and protector of, the integrity of the nationwide standards-creation course of by proclaiming and finishing CGSB’s fraud upon the general public to be a National Standard of Canada on March 1, 2017.

As a result of the 72.34-2017 nationwide customary is nugatory, in addition to harmful in its current type, its CGSB drafting undertaking wasted: (1) the $50,000 given to CGSB by Treasury Board; (2) the salaries that paid for the time taken of the federal government workers concerned; and, (3) the willingly given however unpaid-for a whole bunch of hours offered by all of the numerous members of the drafting committee, together with these of us who served on the working group to draft the a number of editions of the draft customary.

As society turns into ever extra dependent upon digital programs and units, many extra nationwide requirements could have to be created to regulate their manufacture, use, and upkeep. However creation of such nationwide requirements coping with this sort of know-how is throughout the current jurisdiction of CGSB and the Requirements Council. And so it’s that they’ve been given a outstanding place within the promotion of Innovation Canada. A reliable supervisor would assume in accordance with prudent administration, that the historical past of the creation of 72.34-2017 will turn out to be extensively recognized. Subsequently, steps have to be taken now to appropriate this case from remaining as a fixed risk to the efficacy and popularity of the method for creating National Requirements of Canada. That can not be completed whereas 72.34-2017 in its current type stays as a printed nationwide customary.

An authoritative, public, neutral, and independent-of-government investigation is required. In any other case issues will stay of their current harmful state. And, the federal government businesses at fault, by purpose of having weathered my now failed criticism and appeals, could have strengthened their perception that they are going to be impervious to censure and punishment if, on the command of authorities or an authority of comparable energy, they want once more carry out with such incompetence and neglect of responsibility to the individuals of Canada. With such precedent now established, and to this point to at the present time profitable, such an authority would possibly effectively be a keen company, personal or business, offering funding in change for management of the creation or updating of a customary’s content material and timetable, as did Treasury Board.

And equally, the unqualified individuals who had been allowed to add their very own personally biased verbiage to the daft customary lacked the expertise and competence to justify it. CGSB allowed that in change for including larger velocity to its rush to completion.

The very open, and deliberately neglectful method by which CGSB and the Requirements Council carried out their critical violations of required procedures and duties, ignoring complaints and errors, creates a robust presumption that they’ve used such ways earlier than. As a end result, a particular person liable for an vital transaction dependent upon the reliability of electronically-produced data, and realizing of the historical past of the creation of the 72.34-2017 nationwide customary, should assume as a matter of ample warning, that competent administration of the method for creating nationwide requirements doesn’t exist.

That’s the reason I say that the integrity and popularity of that course of may be very a lot in danger of complete destruction, together with that of all National Requirements of Canada. Subsequently, solely a publically open, neutral, and independent-of-government investigation of that historical past of 72.34-2017, can be sure that, that destruction doesn’t occur. Take away the “taint,” or all of the federal government businesses concerned will stay tainted.

I’ve printed the next articles on this topic by which one can choose my allegations of incompetence within the course of by which National Requirements of Canada are created. The titles are hyperlinked for straightforward entry (CTRL + click on on the title to observe the hyperlink):

(1) “Innovation Canada, IP, and Dependence Upon the Requirements Council of Canada,” March 22, 2018. It’s a abstract of the massive third article under. It’s printed within the weblog, Slaw, which is extensively learn by legal professionals all through Canada and elsewhere.)

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

(3) “Innovation Canada, IP, and Dependence Upon the Requirements Council of Canada,” (243 pages, printed, February 2, 2018, on the Social Science Analysis Community (the SSRN).) This text comprises: (1) a detailed abstract of 53 pages, of all of my actions and the texts concerned; (2) a chronology (pp. 54-56), that lists all occasions to the date of this third printed textual content; adopted by, (3) all of the supporting texts referred to above, which embody, my criticism and the appeals texts, and the responses of, CGSB, the Requirements Council of Canada, and that of the federal Workplace of the Public Sector Integrity Commissioner of Canada (by letter dated, September 13, 2017). He, the Integrity Commissioner, concluded, after reviewing all earlier phases and texts that I had offered (totaling, 190 pages), that, “Consequently, I’ve a legitimate purpose not to start an investigation into your allegations.” (web page 243 of this third textual content).

[1] See additionally: Michael Geist’s columns of, July third, and July fifth, 2018, on, “Unpacking Canada’s IP Technique: Countering IP Abuse, Addressing IP Administration and Eradicating IP Obstacles to Innovation.”

[2] Martin Felsky is a litigation e-discovery specialist of lengthy standing. He’s acknowledged within the 2015 and 2016 Who’s Who Authorized because the dean of Canadian e-discovery legal professionals, and one of the “most extremely regarded” e-discovery legal professionals in Who’s Who Authorized Canada 2016.

—————————————————————–o
– right here is the Requirements Council of Canada’s reply, obtained by e-mail on July 20, 2018:

Pricey Mr. Chasse,

Thanks in your latest e-mail. We respect you sharing your ideas with us.

As you might recall, an investigation was accomplished in 2016 surrounding the method employed by CGSB within the preparation of a second version of the National Standard of Canada (NSC) -Digital Data as Documentary Proof CAN/CGSB-Z72.34-2005. That investigation discovered CGSB to be in compliance with its personal procedures and with SCC’s necessities.

Thanks once more.

Sincerely,

Enquiry Providers

Requirements Council of Canada | Conseil canadien des normes

600-55 Metcalfe Road, 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 right here is reply on behalf of the Minister of Innovation, Science and Financial Growth, obtained July 24, 2018:

Pricey Mr. Chasse:

Thanks in your correspondence of July 11, 2018, expressing your issues associated to the event and publication of the National Standard of Canada CAN/CGSB-72.34-2017. The Honourable Navdeep Bains, Minister of Innovation, Science and Financial Growth, has requested that I reply on his behalf. I respect listening to your perspective on this matter.

The Authorities of Canada acknowledges the vital function that requirements play in driving innovation and making certain financial prosperity. In recognition of this, and as you famous, Funds 2017 allotted $14.4M in program funding to the Requirements Council of Canada (SCC) in help of the Superclusters Initiative, a element of Canada’s Innovation and Abilities Plan. In Funds 2018, the SCC attained one other $11M in funding to create a customary setting technique to promote the inclusion of Canadian improvements in requirements.

The SCC is remitted by the federal authorities to promote and pursue efficient and environment friendly Canadian standardization. The SCC accredits standardization organizations, verifying that they’ve the assets, constructions and experience to ship credible, high-quality companies.

I perceive that you’ve beforehand raised issues concerning the method that led to the designation of 72.34-2017 as a National Standard of Canada with the SCC and that an evaluation was performed. Whereas I’m not conscious of the particulars of that criticism or the phrases of the contract between the Treasury Board and the Canadian Basic Requirements Board, I can respect the need of a sturdy accreditation course of. That’s the reason earlier than being designated as a National Standard of Canada, the SCC verifies that a customary has to meet sure key necessities, together with that it has been developed by consensus from a balanced committee of stakeholders, and subjected to public scrutiny.

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

Sincerely,

Lisa Setlakwe

Senior Assistant Deputy Minister

-o-

http://www.slaw.ca/2018/08/02/consequences-to-innovation-canada-and-ip-of-a-badly-drafted-national-standard-of-canada/

Previous
Next

Leave a Reply

Your email address will not be published. Required fields are marked *

fifteen + ten =