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

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The federal authorities’s “Price range 2017,” Innovation Canada mission 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 information. 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 normal; and, (2) the Minister of Innovation, Science and Financial Improvement. 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 “Price range 2017,” Innovation Canada mission 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 information.

I’m a lawyer. And I used to be the Chair of the drafting committee for that normal. 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 essential nationwide normal.

As a result of all residents of Canada rely upon information, not solely our personal, but in addition the information of others who make choices for us and about us, there can’t be a nationwide normal of higher significance than 72.34-2017.

Being a second version of the very profitable first version, 72.34-2005, (which nicely served its goal from December 2005, till it was changed by 72.34-2017 on March 1, 2017), will probably be relied upon by lots of of consultants in digital information administration, to certify compliance with it by many lots of of digital information administration techniques in Canada. Such certifications are supplied by consultants in digital information administration, each as consultants serving institutional shoppers and as employed information managers. Such certifications make sure the manufacturing of dependable information. 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 thousands and thousands of {dollars} of property.

The 72.34-2017 nationwide normal units out the rules and practices for dependable digital information administration and subsequently, for the manufacturing of dependable information. However we are actually with out a validly created second version of that nationwide normal. Specialists in digital information administration should inform their shoppers and employers, who ask for formal certifications of information techniques’ compliance, that no such certifications are attainable.

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

Innovation Canada is a division of the federal division of, Innovation, Science and Financial Improvement Canada. Carefully associated is the federal government’s promotion of standardization as half of its technique of growing mental property as, “intangible property of nice worth for the data economic system.” In help thereof, the Requirements Council of Canada has introduced, by means of an e mail message distributed on April 10, 2018 (reproduced within the second of the revealed 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 mission, and subsequently 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 growing such innovation. However actually, the Requirements Council and CGSB have proven themselves to be incapable of publishing a competent model of a nationwide normal as essential as 72.34-2017.

The 72.34-2017 nationwide normal is expounded to the federal authorities’s Price range 2017, excessive precedence Innovation Canada mission. Its Reality Sheet, Abilities, Innovation and Center Class Jobs, states, “Price range 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 can help within the creation of “clusters of modern organizations” similar to Silicon Valley in California. And, “the Authorities of Canada will supply substantial monetary assist by way of its, Strategic Innovation Fund,” and its, “Mental Property Technique.”[1]

As a result of of a very-difficult-to-meet deadline imposed by means 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 normal submitted to it by CGSB to be a revealed National Standard of Canada, regardless that the Council knew that it had been created by means 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 normal, by means of a 100-page, detailed grievance, I knowledgeable the Requirements Council about these errors and of the improper procedures utilized in its creation. Nonetheless simply such a very defective draft was utilized by CGSB to carry out the “public overview” 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, quite than being created beneath the administration of authorities, to serve a authorities curiosity. Due to this fact 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 rely upon the reliability of information, each our personal and these of the individuals and establishments that make choices for us and about us, there can’t be a nationwide normal extra essential than 72.34-2017. However as a result of of the errors in it and the incompetent means through which it was created, it must 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 rely upon an alternate of information of anticipated and assumed reliability as to the strategies of their creation, storage, and administration. That might end in very massive legislation fits and the damaging of the reputations of the individuals accountable for such transactions.

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

The reliability of the continued existence and accessibility of an digital document within the kind through which it’s recorded and saved relies upon upon the reliability of the digital information administration techniques by which it’s created, saved, and reproduced. And the aim of certification of compliance with the 72.34-2017 nationwide normal is to present proof of the reliability of such digital information administration techniques. However actually, the creation of 72.34-2017 in its current kind “taints” (undermines the credibility of) all nationwide requirements and as nicely, the certifications of compliance primarily based upon them.

As a matter of ample warning, any individual in a administration place should assume that the incompetent method through which the nationwide normal that’s 72.34-2017 has been created, will develop into broadly identified. It at all times does, particularly so the place a “over-up” is tried as have CGSB and the Requirements Council. Due to this fact, they shouldn’t be half of a mission as essential as that which Innovation Canada and Innovation, Science and Financial Improvement Canada are meant to serve. Among the many varied varieties of harm that might be finished, the big sums of taxpayers’ cash which can 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] accountable for drafting 72.34-2017’s authorized part, resigned part-way by way of the mission (in June, 2015). The revealed normal’s authorized part comprises many errors as a result of unqualified individuals have been allowed to participate in drafting it. We couldn’t stay half of a mission that might publish a grossly improperly made nationwide normal. Nonetheless, CGSB carried on with the mission. 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 mission; but in addition, (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 overview” stage in a very false and deceptive means.

A proper public overview warrants that the draft normal so supplied for examination and remark: (1) has been drafted in accordance with the required procedures; and, (2) comprises no identified errors. CGSB knew that it was violating each necessities. Such a public overview will increase the chance of higher 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 legislation, regulation, or a textual content of such broad significance and software, find a way 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 actually it failed to obtain regardless of its very aggressive and overbearing techniques.

As a result of of the very critical accusations in my grievance textual content made towards CGSB and the procedures that it was imposing upon the committee, the Requirements Council ought to have handled my grievance itself. As a substitute, it despatched my grievance 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 grievance denied all the pieces and asserted its personal “different information.” Due to this fact I proceeded by way of the grievance’s attraction course of, together with a remaining attraction to the Requirements Council as soon as extra. Its reply was merely to state that no unsuitable had been finished, and subsequently it thought of “the matter of my grievance to be closed.” And to present that it was fully “finished with the matter,” the Council failed to reply to my two requests for a copy of the report of the investigation of my grievance (my requests have 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 essential nationwide normal have been very probably the product of a need to have it revealed as quickly as attainable, as an essential side of the federal authorities’s Innovation Canada mission, and the Requirements Council’s and standardization’s half in it. And so it’s that regardless that there are a lot of errors within the 72.34-2017 nationwide normal, it has been allowed to stay as a revealed nationwide normal that may be freely downloaded by anybody. It will be very embarrassing for CGSB and the Requirements Council to be seen to withdraw this normal 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 will be an admission that the usual is as dangerous as actually it’s.

However, it’s doubtlessly very dangerous and subsequently harmful as a publically out there nationwide normal. It must be withdrawn from public entry instantly. The primary version, 72.34-2005, must be re-activated and stay operative till a competent second version will be drafted and correctly declared to be a National Standard of Canada.

By means of its e mail message of April 10th, the Requirements Council revealed the truth that it, the Council, might be crucial to the federal government’s promotion of standardization as a key side of the Innovation Canada mission. However its efficiency, and that of CGSB, within the creation of the 72.34-2017 nationwide normal, 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. Specifically, the Requirements Council lacks an efficient skill to impose and implement rules of high quality management. Due to this fact it can not 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 essential to stay entrusted to the method of “voluntary standardization” created by the Act.

As a substitute of appearing 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 mum or dad for CGSB and the creation of the 72.34-2017 nationwide normal. Consequentially, the Requirements Council has acted as a protecting company in help of the federal authorities’s Innovation Canada mission. That’s to say, in response to my grievance 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 conduct.

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

Now, with the higher expertise and evaluation supplied by the virtually three years since I first despatched my grievance to the Council (on October 21, 2015), I imagine that the Council knew what was coming from CGSB, and how it might have to be created. That should be why the Requirements Council of Canada: (1) first “brushed me off,” (so abruptly dismissive was it of my remaining attraction 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 normal is nugatory, in addition to harmful in its current kind, its CGSB drafting mission wasted: (1) the $50,000 given to CGSB by Treasury Board; (2) the salaries that paid for the time taken of the federal government staff concerned; and, (3) the willingly given however unpaid-for lots of of hours supplied 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 normal.

As society turns into ever extra dependent upon digital techniques and gadgets, 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 inside the current jurisdiction of CGSB and the Requirements Council. And so it’s that they’ve been given a distinguished 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 develop into broadly identified. Due to this fact, steps should be taken now to right this example from remaining as a fixed risk to the efficacy and fame of the method for creating National Requirements of Canada. That can’t be finished whereas 72.34-2017 in its current kind stays as a revealed nationwide normal.

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 grievance 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 today profitable, such an authority would possibly nicely be a keen company, non-public or business, offering funding in alternate for management of the creation or updating of a normal’s content material and timetable, as did Treasury Board.

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

The very open, and deliberately neglectful means through which CGSB and the Requirements Council carried out their critical violations of required procedures and duties, ignoring complaints and errors, creates a sturdy presumption that they’ve used such techniques earlier than. As a end result, a individual accountable for an essential transaction dependent upon the reliability of electronically-produced information, and figuring out of the historical past of the creation of the 72.34-2017 nationwide normal, 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 fame of that course of could be very a lot in danger of complete destruction, together with that of all National Requirements of Canada. Due to this fact, solely a publically open, neutral, and independent-of-government investigation of that historical past of 72.34-2017, can make sure that, that destruction doesn’t occur. Take away the “taint,” or all of the federal government businesses concerned will stay tainted.

I’ve revealed 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 simple entry (CTRL + click on on the title to comply with the hyperlink):

(1) “Innovation Canada, IP, and Dependence Upon the Requirements Council of Canada,” March 22, 2018. It’s a abstract of the big third article under. It’s revealed within the weblog, Slaw, which is broadly 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, revealed, 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 revealed textual content; adopted by, (3) all of the supporting texts referred to above, which embrace, my grievance 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 supplied (totaling, 190 pages), that, “Consequently, I’ve a legitimate purpose not to begin 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 Limitations 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.

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

Expensive Mr. Chasse,

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

As it’s possible you’ll 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 Avenue, Ottawa ON K1P 6L5 | 55, rue Metcalfe, bureau 600, Ottawa (Ontario) K1P 6L5

613 238-3222, ext./poste 473

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

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– and right here is reply on behalf of the Minister of Innovation, Science and Financial Improvement, obtained July 24, 2018:

Expensive Mr. Chasse:

Thanks in your correspondence of July 11, 2018, expressing your considerations 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 Improvement, has requested that I reply on his behalf. I recognize listening to your perspective on this matter.

The Authorities of Canada acknowledges the essential function that requirements play in driving innovation and guaranteeing financial prosperity. In recognition of this, and as you famous, Price range 2017 allotted $14.4M in program funding to the Requirements Council of Canada (SCC) in assist of the Superclusters Initiative, a part of Canada’s Innovation and Abilities Plan. In Price range 2018, the SCC attained one other $11M in funding to create a normal 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, buildings and experience to ship credible, high-quality companies.

I perceive that you’ve got beforehand raised considerations 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 grievance or the phrases of the contract between the Treasury Board and the Canadian Basic Requirements Board, I can recognize the need of a strong accreditation course of. That’s the reason earlier than being designated as a National Standard of Canada, the SCC verifies that a normal 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 recognize you taking the time to share your views on this matter.

Sincerely,

Lisa Setlakwe

Senior Assistant Deputy Minister

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

 

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