Chapter 3: “Using the Wrong Approach – Standards versus Public Policy”
There is a lot of ground to cover here, and this chapter is going to be a little bit theoretical and legalistic.
Don’t stop reading – this is important material for a full understanding of what happened when the Canadian General Standards Board (CGSB) prepared its draft service dog team standard, and why it feels so wrong for guide dog users and others.
Guide dog users have been told not to worry because CGSB standards are voluntary. But, disabled people around the world know that voluntary standards can be used to diminish their rights, and it is only a matter of time before they become mandatory. We will explore this idea of voluntary standards versus mandatory public policy.
CGSB operates in a way that is based on the work they were set up to do. We will examine that context and why it does not lend itself to successful public policy formulation.
Organizations that prepare standards and those that undertake public policy development both operate within a set of principles; however, they are each very different. We will compare CGSB principles to good public policy principles to learn more about why the draft standard misses the mark.
Finally, we will look at the idea that CGSB does not have the legal authority to make a standard for service dogs.
So, grab a cup of coffee, or tea (or whatever), and let’s get started.
Standard, or Public Policy? A Question of Intent
CGSB’s draft service dog team standard says, “this Standard does not preclude or override any applicable regulatory or legal requirements”. Therefore, CGSB officials emphasize that the draft standard would be voluntary and does not constitute policy. However, the draft standard goes on to say that, “it may be referenced as a benchmark to support commonality of regulations / legislation for service dog teams across Canada”; and, the draft standard also says that, “this Standard is intended for use primarily by regulators”, among others.
During meetings of CGSB’s Committee on Service Dogs, many references were made about pushing regulators to embed this standard in regulation, and about how much easier it is to have a standard developed than a regulation. The Committee even changed their scope to include the idea that the standard would “facilitate regulations”. The airline industry’s representative talked about different airlines being able to use the standard across Canada; this statement was made without the least worry that such an action would make the standard “policy by default”, place disabled travelers in a state of confusion, and put additional pressure on provinces to adopt the standard into their regulations.
Clearly, it is the intent of CGSB and its Committee to have the standard applied across Canada, and to encourage provinces to adopt it into provincial regulation. Some of the Committee members seem to be using the standard-setting process to achieve their own agendas by doing an “end run” around the provincial regulatory process.
It is noteworthy that there is only one provincial regulator who is a voting member of the Committee on Service Dogs, and that province failed to participate in any of the Committee meetings for which minutes have been made public (NB, minutes for one or two subsequent meetings are awaiting Committee approval before being released, so whether any provincial representatives attended those meetings is unknown). Are the provinces aware that this activity is going on, the implications for their programs and services, and the impact on the rights of people with disabilities?
In the context of making a standard that affects the daily lives of vulnerable individuals – those whose rights have historically been trampled, and who have had to fight long battles to be recognized as full citizens – any indication that a “voluntary” process is being developed by the government will create significant concern. Then, when it becomes clear that the committee developing the standard wants and intends it to become mandatory, it will quickly be understood by disabled Canadians that the “standard” is in fact government policy and is “voluntary” in name only.
Standards versus Public Policy – the Context of Different Approaches
We now understand that this draft standard is a public policy proposal, but it was developed by a group whose role is to develop voluntary standards. So, what’s the difference?
The context for a standard development exercise compared to one designed to develop public policy is significantly different, but because CGSB does not have policy expertise, their process falls short across every aspects of public policy development.
The CGSB standards milieu is technical; the focus is on things (products or services), industries, or technologies. On the other hand, the public policy milieu is fluid, the focus is on people and their interactions in society. As a result, the draft standard has a stronger focus on dogs (i.e., a thing), rather than handlers (i.e., the person).
The CGSB standards approach values uniformity and compliance and recognizes that success can be achieved within predictability. On the other hand, the public policy approach values diversity and uniqueness and recognizes that success can be achieved despite unpredictability. As a result, the draft standard requires onerous qualification and assessment processes that infringe on peoples’ rights rather than giving people agency to make their own decisions in consultation with accredited training schools.
The CGSB standards paradigm requires training, instructions, and best practices to ensure those involved know exactly how to act to achieve success. On the other hand, the public policy paradigm requires education, knowledge, and good principles to ensure those involved know how to think to achieve success. As a result, the draft standard focuses on inputs and through-puts rather than outputs and outcomes.
CGSB is not designed for, or experienced in, developing public policy, especially in areas where human services are involved. The CGSB policies and procedures focus on the economy, trade and commerce, and technical product and process specifications, not human services. This is reinforced when many references in CGSB material are made to “consumers” (i.e., an economic unit) rather than people or citizens. An obvious illustration of this contextual problem is that the newly created CGSB Committee on Service Dogs was given an example of an existing standard as part of their orientation – the closest existing standard that CGSB could find to illustrate the task ahead relates to organic agriculture!
The CGSB standards approach does not reside in a public policy development context; thus, it is inadequate to address the needs of service dog, hearing dog, and guide dog users across the country. Because of these shortcomings, the draft standard will not suit any modern regulatory agency as a jumping-off point for regulations.
Comparison of Principles
To further emphasize the difference between voluntary standards development and public policy development, we need to look at the principles that guide and inform each of these different activities. By comparing the different principles, we will gain a deeper understanding about why CGSB’s scope change in October 2015 is so important.
The first stated policy within the CGSB Policy and Procedures Manual says that CGSB bases its standards development process on “ISO Guide 69”. However, the International Organization for Standards (ISO) has withdrawn this standard. It is no longer available for the public to purchase, so it is not clear how, or whether, ISO’s withdrawal of Guide 69 affects the principles that guide CGSB.
There are many principles listed in CGSB’s Policy and Procedures Manual. It is a bit lengthy, but a summary of them is reproduced here for readers’ reference. Some are good statements of principle, but many are process-oriented and tend to be inward-looking:
- Canadian principles, including:
- equal access and effective participation by concerned interests
- respect for diverse interests and identification of those who should be afforded access to provide the needed balance of interests
- mechanism for dispute resolution
- openness and transparency
- open access by interested parties to the procedures guiding the standards development process
- clarity with respect to the processes
- Canadian interests, including:
- Canadian economy
- Sustainable development
- Health, safety and welfare of workers and the public
- Assist consumers by facilitating choice, promoting consistent design quality, and providing consumers with safer, healthier and more environmentally sound products and services
- Standards should be based on the consolidated results of science, technology and experience, and aimed at the promotion of optimum community benefit
- Avoiding duplication
- Timeliness in the consideration for the development of new or revised standards
- Sufficient and competent staff
- Documentation retention
- Standards harmonization with international community
- Give due consideration to the adoption of relevant regional standards, International Standards, and other regional/international deliverables
- International and regional co-operation
- Ensure that standards are not developed to create unnecessary obstacles to international and/or inter-provincial trade
- Standards should be developed to meet the needs of the marketplace and should contribute to advancing trade in the broadest possible geographical and economic contexts
- Ensure that standards are not developed to fix prices, exclude competition or otherwise inhibit commerce beyond what is necessary to meet requirements of relevant technical regulations or other legitimate sectoral or local requirements for compatibility, environmental protection, health and safety
- Ensure that standards are not developed to discriminate among products based on the place of origin
- Safeguard that the source of the materials for the product of a standard is not prescriptive as to specify one location where they may be obtained
- Resolve identified instances of unjustified discrimination, and remove the potential for future instances
- Intellectual property
- Do not specify the use of trademarked, patented, or patent pending material, products, processes or apparatus, or any constituent thereof, unless there is only one suitable material, product, process or apparatus, or constituent thereof available or a technical justification exists
Public Policy Principles
Principles of good public policy are summarized below (source: Developing Public Policy: A Practical Guide by Bobby Siu; Canadian Scholars Press, ©2014). These are higher-level principle statements than those used by CGSB, and they are all outward-looking ideas:
- Balance of public interests – are the interests of the diverse and varied stakeholders reflected and well-balanced in the policy
- Accountability – is an accountability framework well articulated
- Impact – are the objectives and expected impacts of the public policy explicitly stated
- Cost effectiveness – is the policy the most cost-effective way to solve the policy problem(s)
- Justice – is the policy just to everyone affected by its implementation, and does it reflect the hallmarks of social justice:
- Each person is entitled to the most extensive set of basic liberties compatible with the same liberty for all (liberty principle)
- All positions of public responsibility or private advantage should be open to all based on fair equality of opportunity (fair opportunity principle)
- Any inequality in the distribution of resources for a good life is permissible only insofar as it is to the advantage of the worst-off group in society (difference principle)
- Balance of short- and long-term considerations – is the policy both present- and future-oriented
Commentary on Principles – Impact
Some of the CGSB principles fit with good public policy principles, but there are key areas where the two sets of principles diverge. We will specifically discuss “accountability” in a later chapter; so, setting that aside, we will begin by considering “impact”.
The idea of “impact” is that every public policy tries to solve a problem. A public problem leads to negative impacts, and through the development and implementation of a new policy, the negative impacts ought to be eliminated or at least mitigated. This means that every policy needs to have formal explicit, clear, and consistent objectives. The draft service dog team standard does not.
This requirement to consider impacts is not evident in the CGSB principles; rather, their principles are geared to guide the standards development activity itself, rather than consider any public impacts other than the need to enhance trade. Why would their principles not consider the impact question? The only logical answer is that CGSB assumes the impacts have been analyzed by others. Somebody else does the policy analysis and decides that a standard is the solution to a public problem, then CGSB just develops a standard the best way they know how – some other organization is responsible for implementation and the impacts of the policy.
To put this into focus with the service dog team draft standard, you will remember from Chapter 2 how the Canadian Foundation for Animal-Assisted Support Services (CFAS), Veterans Affairs Canada (VAC), and others were engaged in years of meetings looking at problems related to PTSD dogs. CGSB participated in many of those meetings. If we consider for a moment that those meetings were a type of public policy development process, this puts CGSB’s draft standard in a new light. All the meetings during 2013 – 2015 would have defined a problem, looked at impacts, discussed what options might be suitable to mitigate those impacts, and concluded that a national standard for PTSD dogs was the solution.
Regardless of the flaws in the VAC / CFAS process, it would be logical that CGSB would not see itself as “owning” the impact responsibility; rather, they are just responsible to develop a national standard according to their normal way of doing business to meet the expectations of VAC and CFAS (the originators and owners of the process that drove the “policy decision”).
However, where CGSB becomes culpable is when they allowed the Committee on Service Dogs to dramatically increase its scope. Now, none of the policy analysis that might have been done by VAC has any relevance to the work that was being conducted by CGSB; yet, the process continued. CGSB effectively took responsibility for a public policy development process of massive scope without doing any of the ground work necessary for it to be successful.
Commentary on Principles – Justice
The idea of “justice”, and especially “social justice”, is absent from CGSB principles. In the normal course of their business, CGSB relies on the concept of “consensus”, and would have no need to consider whether the rights of some people (even the majority) may need to be knowingly and intentionally compromised to protect the rights of others. Yet, this is a reality of developing public policy in the disability arena.
CGSB does not have the skills or abilities to tackle issues raised by social justice concerns, nor did it create a Committee on Service Dogs with these skills. What is more, it is not legally positioned to address these questions. By attempting to draft a standard that impacts the daily lives of disabled Canadians, they have naturally bumped into (and glossed over) areas where social justice considerations needed to be addressed, and weren’t.
Jurisdiction – Canada Versus the Provinces
Under Canada’s constitution, provinces are responsible for, among other things, health, education, social services, property and civil rights. The draft standard is firmly embedded within this scope. It deals with the definition of disability, who may access service dogs, hearing dogs, and guide dogs as a result of a disability, what personal and private information must be provided and to whom in order to qualify to obtain and use a dog, how the dog may be used, what places and facilities must allow access, what objections may be valid for disallowing a dog / handler team access, the terms and conditions related to the care and training of dogs, and the processes related to ensuring the well-being of the dog / handler team. This entire draft standard sits within provincial jurisdiction.
Given the clear intention to force these standards across the country, it would seem the provinces should have been well-represented on CGSB’s Committee on Service Dogs, but they were not.
The areas covered by this draft standard fall within the jurisdiction of provincial governments. The Government of Canada does not have jurisdiction to make either standards or public policy in these areas.
Conclusion and What’s Next
We have seen that CGSB and its Committee on Service Dogs intended to develop public policy related to service dogs, hearing dogs, and guide dogs, but they are not qualified to do so. Whatever public policy development process CGSB might be relying on (e.g., VAC), fails to reflect good public policy principles in relation to the expanded scope of the project. Furthermore, the Government of Canada does not have jurisdiction to develop standards or policies in this area without the full participation and agreement of the provinces.
Tomorrow we will continue our look at standards versus public policy, but this time drilling down beyond today’s look at context, principles, and jurisdiction, to look at the processes used by CGSB for standard development compared to the processes typical in good public policy development. We will see areas where CGSB violated their own process requirements. So, please return for the fourth instalment of A Failed Process. Chapter 4 is called, “Non-Compliance – A Look at Processes”.
–James L Menzies