Has Canada Lost the Political Independence of Its Civil Service?--A Case in Point

406 Pages Posted: 30 Jan 2018 Last revised: 15 Jun 2022

Date Written: January 23, 2018

Abstract

Canada appears to be losing the political impartiality of its federal civil service. In proof, I describe and analyze my experience as the Chair of the drafting committee for a very important National Standard of Canada, that establishes the required principles and practices for competent electronic records management systems. It is widely used by the business community and major institutions such as universities. The drafting project involved several agencies of Canada’s federal government over a three-year period. The corrupt procedures being used compelled me to resign, along with the other lawyer responsible for the legal section, partway through the drafting process. Those events during that long development period made clear that the use of such corrupt procedures, as might be compelled by political imperatives, cannot be assumed to be confined to those agencies of government concerned with the creation of national standards.
The result of that badly corrupted drafting project was a national standard containing many errors, that has remained in published form since it was declared to be a National Standard of Canada in March, 2017, by the Standards Council of Canada—an agency of government duty-bound to protect the people of Canada from badly drafted national standards. Instead, the Council knowingly accepted and acted upon a very corrupted drafting process that produced a “train wreck” that has not stopped its wrecking in that it remains in continuous operation. Instead, the Council acted as would a protective parent of government agencies acting together to achieve an effective “cover-up” of very unethical, and sometimes criminal behaviour.
And, on January 18, 2021, the Standards Council posted a notice of an upcoming review by CGSB on March 30, 2021, of the status of the “status of the national standard, CAN/CGSB-72.34.” The published result is stated to be: “Project Need: No changes to the standard proposed.”
Although such national standards are to be created to serve the public interest and not government interest, the process for creating national standards in Canada is now susceptible to improper pressures exerted by the highest levels of federal government. That was made evident by the very rushed and incompetent methods used by the Canadian General Standards Board (CGSB), to create the defective National Standard of Canada, Electronic Records as Documentary Evidence CAN/CGSB-72.34-2017 (“72.34-2017”). It all started with an agreement between CGSB and the Treasury Board of Canada Secretariat (Treasury Board), which is the highest level of the federal civil service. And Treasury Board was given an opportunity to comment on each draft produced as part of the formalized procedure for creating the final draft. Clearly, this was a national standard directed to be drafted to serve government interest first and foremost. Therefore, quite possibly the agreement was the consequence of bigger plans made in the Prime Minister’s Office (the PMO), such as preparing for a federal election.
Because of my long association with the field of electronic records management and with such standards, I was asked by CGSB in November, 2013, to be the Chair person of a committee to draft the second edition, which became 72.34-2017, in March 2017. The drafting process began on May 16, 2014. It was sponsored by CGSB, which is a division of the federal Department of Public Services and Procurement Canada. CGSB is a standards-sponsoring agency; it claims no expertise in the content of any national standard that it sponsors. Its stated functions include assembling drafting committees and formally submitting their final drafts to the Standards Council of Canada to be declared National Standards of Canada.
After resigning from the drafting committee in June 2015, by way of a lengthy, detailed complaint, I informed the Standards Council in October 2015, of the very unethical and incompetent methods that CGSB was imposing upon the drafting committee. Nevertheless, the final draft was approved by the Standards Council of Canada and declared to be a national standard and published in March, 2017. The result is a published national standard that contains many errors. Substantial parts of it were drafted by people with insufficient qualifications. The evidence available strongly supports the conclusion that the motivation to use such improper procedures by the Council and CGSB was government pressure to complete the drafting and publishing process in an inordinately short time, in preparation for a forthcoming federal election.
This paper provides: (1) a detailed description of CGSB’s improper methods, which substantially interfered with the drafting committee’s work; and, (2) supporting documentation for the events described and the accusations made. They establish the reasons why a formal public inquiry is necessary to re-establish a competent process for the creation of national standards in Canada, and the political independence of its civil service. Until that happens the quality of all National Standards of Canada will be in doubt, as will the freedom of the civil service to provide the benefits of its competence and experience to an elected government. As explained, such a public inquiry would provide:
(1) Recommendations for the creation of much more detailed and enforceable legislation than is the present Standards Council of Canada Act (1970), stating the powers and duties of an agency that declares drafted standards to be national standards, such as the Standards Council of Canada is, so as to enable it to: (a) enforce the foundation principles of standards-creation and quality control procedures, upon standards-development organizations (SDOs) such as CGSB; and, (b) establish SDOs by way of a much more disciplined and competent process. For those purposes the Act is in need of substantial revision.
(2) An independent and authoritative public inquiry as to the complaint and appeal processes in relation to the procedures used to create national standards; and,
(3) A published statement in the Act as to the importance of national standards for: (a) promoting innovation by establishing superclusters; and, (b) for the creation, preservation, and monetizing of intellectual property by Canada’s business community.
This paper deals with:
1. the incompetent and rushed procedures used by CGSB personnel that led to the resignations, in June 2015, of: (a) myself as the Chair of the drafting committee that was creating the above national standard, 72.34-2017, and, (b) the other lawyer also responsible for the drafting of the legal section of the standard;
2. the events concerning the connection between: (1) “Innovation Canada,” and its “Intellectual Property Strategy,” as declared in the federal government of Canada’s “Budget 2017” in March 2017, to promote the preservation and monetization of intellectual property by Canada’s business community, along with, innovation, the “knowledge economy,” superclusters to facilitate such innovation; and, (2) the key part the Standards Council of Canada was to play in fulfilling those high government priorities by way of the creation of relevant national standards, for which the Council greatly asserted itself by gaining greater prominence, purpose, and government funding.
The above events, and the actions, statements, and demeanour of the civil servants involved, provided strong evidence that:
(1) such events concerning drafting projects have happened several, if not many times before in the creation and amendment of national standards;
(2) CGSB personnel knew that the Standards Council would defend them, i.e., that in response to all inquiries about the above events, that the Council would play its required part by forcefully insisting without fail that all required procedures had been followed, meaning that, the Council would act as would a protective parent, by participating in a “cover-up” of CGSB’s wrongdoing, instead of acting as the protector of the people of Canada against badly drafted national standards;
(3) the process for creating national standards has been seriously corrupted and is very unreliable as to its competence, professionalism, ethical practices, and as to the quality of what it produces;
(4) because this national standard is so widely used and heavily depended upon by Canada’s business community and government departments and agencies, 72.34-2017 should be withdrawn, and its first edition, 72.34-2005, be re-activated until a competent and validly created second edition can be properly drafted and declared to be a National Standard of Canada.
Such serious, well-practiced, planned and premeditated, and effectively-deployed corruption, cannot be assumed to be limited to the creation of national standards and to the government departments and agencies so involved; they being: (1) the Treasury Board of Canada Secretariat; (2) the Canadian General Standards Board; (3) the Standards Council of Canada; and, (4) the Office of the Public Sector Integrity Commissioner of Canada. And the civil servants involved, acted in what would be very much against their own personal interests in using such fraudulent means, if in fact there were no such pressure imposed upon them. They had to have been acting out of fear of higher authorities that imposed such improper pressure upon them to complete the final draft within 18 months. The way they acted by using such means as being untruthful and very dishonestly manipulating members of the drafting committee, and failing to perform required steps of the drafting process competently, repeatedly during the three years of the drafting process, clearly showed that such corrupt means had been used many times before, and most likely will be used many times again.
This was a major failure of government, being the kind of failure that leads to a democracy’s becoming an anocracy (a poorly functioning democracy). The consequences are, eventually, the loss of civil rights, and the rule of law by a competent government. The strength of a country’s civil rights lies not in its constitution, but in its politics. Such excessive scope given to political motivations, as described in this paper, is dangerous to Canada’s democracy.
This undermining of the competence and ethical practices of a civil service is consistent with the long-standing warnings of authoritative political scientists that government power is falling progressively into fewer and fewer hands. Such is said to arise from the over-bearing strength and strictness of political party discipline in Canada. That is the foundation for the great power that has been given to the hired “political staff” that have been enabled to act as freely operating agents of the Prime Minister’s, and Cabinet Ministers’ offices. They are neither civil servants nor elected officials, and therefore are not accountable to either an established code of conduct or to the electorate—the voters of Canada. Such concentration of power undermines the safeguards within an elected government and its civil service that Canada’s liberal constitutional democracy depends upon.
What is an independent expert in electronic records management systems to do when asked by a corporate or institutional client to examine and render its records systems compliant with this national standard, and to formally certify such compliance? The second edition, 72.34-2017, has rendered the first edition, 72.34-2005, inoperative. That first edition had an excellent record of performance. I acted as the legal advisor in its drafting. Given the history of the drafting of 72.34-2017, can a valid certification of compliance be given? Surely the client must be informed; such serious defects cannot remain hidden. Therefore, I recommend to such experts that as much as is possible that they certify compliance with both the first and second editions of the 72.34 national standard. At any time, the first edition could be reactivated while a proper second edition is being drafted. But that is very unlikely to happen, such being an admission of the grossly incompetent creation of a national standard.
And what is a corporate or institutional executive to do upon learning that the certification of compliance that was depended upon as part of the essential foundation for a multi-million-dollar transaction based upon an exchange of information as provided by essential records, was based upon a very badly drafted national standard? Would that render the transaction null and void? The Standards Council has shown that it will not provide to such an executive, specific answers to the many detailed allegations of bad drafting described in this paper. In 2015, I warned the Standards Council that, that could result in the Council’s being made the defendant in many large law suits. Nevertheless, the Council has ignored such warnings, and duty to the people of Canada, and carried on with its part in the “cover-up.”
The events herein described raise questions as to how far into Canada’s federal civil service have such corrupt practices come to be used whenever political ambitions command and compel civil servants to use them without fail? Canada may now have its own version of the American practice of undermining the competence of its federal civil service by the appointment of political operatives as the heads of government departments and agencies, their lack of essential knowledge and experience notwithstanding. It is said that they are expected to render the top half of each government department to be managed by politically acceptable people.
To uproot such corruption, a formal public inquiry is necessary to determine whether Canada still has a politically impartial, and professionally competent civil service, i.e., a traditional British, “Westminster model” civil service.

Keywords: intellectual property, Innovation Canada, public inquiry, records management systems, national standards, knowledge economy, civil service, public service, software errors, imaging, Standards Council of Canada, Canadian General Standards Board, Westminster civil service

Suggested Citation

Chasse, Ken, Has Canada Lost the Political Independence of Its Civil Service?--A Case in Point (January 23, 2018). Available at SSRN: https://ssrn.com/abstract=3107800 or http://dx.doi.org/10.2139/ssrn.3107800

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