Law Commission of Ontario Issue Paper on AI and Algorithms in Criminal Proceedings

 The Law Commission of Ontario has published an Issue Paper on The Rise and Fall of Algorithms in American Criminal Justice: Lessons for Canada.

It looks at the potential use, impact and regulation of artificial intelligence (AI), algorithms and automated decision-making in Canadian criminal proceedings:

"The specific subject of this paper is algorithmic pretrial risk assessments. These are AI or algorithmic tools that aid criminal courts in pretrial custody or bail decision-making (...)"

"Algorithmic pretrial risk assessments are an important case study in the use of AI and algorithms in criminal justice. Bail proceedings adjudicate and balance fundamental liberty and public safety issues while needing to ensure high standards of due process, accountability and transparency."

"The use of these tools has expanded rapidly across the United States, to the point where these systems are probably the most widely implemented AI or algorithmic tools to aid decision-making in criminal proceedings in the world. This expansion has been the catalyst for an unprecedented and rapid evaluation of how algorithmic tools in criminal proceedings are designed, developed and deployed. Suffice to say, this reform has not gone smoothly. In the space of a few short years, there has been an extraordinary backlash against the use of these systems, including by many of the same organizations and stakeholders who enthusiastically supported their development in the first place."

"The LCO believes an analysis of the American debate can provide Canadians with important insights and lessons about the use of AI and algorithms in criminal proceedings. The LCO further believes that many, if not most, of these lessons are applicable to the use of these tools in civil and administrative decision-making as well (...)"

"The paper pays particular attention to issues regarding racism and data discrimination. Anti-Black and anti-Indigenous racism has been a long-standing concern in Ontario’s justice system. Accordingly, any analysis of AI and algorithms in criminal proceedings must address these issues clearly and comprehensively. Perhaps not surprisingly, the LCO has identified many unexplored, unregulated and poorly understood issues respecting data, discrimination, algorithms and the law. The paper also considers this technology from the related and overlapping perspective of access to justice for low-income and vulnerable communities."

"The paper concludes with an analysis of regulatory issues and options to assist Canadian policymakers and stakeholders identify, discuss and decide appropriate options and instruments for the Canadian criminal justice system."

This is the first of three (3) Issue Papers on the topic of AI by the Commission as part of its project on AI in Criminal Justice System in Ontario.

English Law Commission Consultation on Harmful Online Behaviour

 The Law Commission of England is holding consultations on what it calls the Reform of the Communications Offences:

"Reform of the law is needed to protect victims from harmful online behaviour including abusive messages, cyber-flashing, pile-on harassment, and the malicious sharing of information known to be false. The Law Commission is consulting on proposals to improve the protection afforded to victims by the criminal law, while at the same time provide better safeguards for freedom of expression. We launched our consultation paper on 11 September 2020, and the consultation period will run until 18 December 2020."

In its consultation paper, the Commission makes a number of proposals:

"The proposals include:

• A new offence to replace the communications offences (the Malicious Communications Act 1988 (MCA 1988) and the Communications Act 2003 (CA 2003)), to criminalise behaviour where a communication would likely cause harm.
  • This would cover emails, social media posts and WhatsApp messages, in addition to pile-on harassment (when a number of different individuals send harassing communications to a victim).
  • This would include communication sent over private networks such as Bluetooth or a local intranet, which are not currently covered under the CA 2003.
  • The proposals include introduction of the requirement of proof of likely harm. Currently, neither proof of likely harm nor proof of actual harm are required under the existing communications offences.
• Cyber-flashing – the unsolicited sending of images or video recordings of one’s genitals – should be included as a sexual offence under section 66 of the Sexual Offences Act 2003. This would ensure that additional protections for victims are available.
• Raising the threshold for false communications so that it would only be an offence if the defendant knows the post is false, they are intending to cause non‑trivial emotional, psychological, or physical harm, and if they have no excuse."

Article on Artificial Intelligence and Algorithmic Racism

Gideon Christian from the Faculty of Law at the University of Calgary published an article on Slaw.ca today entitled Artificial Intelligence, Algorithmic Racism and the Canadian Criminal Justice System that looks at how data used to train AI tools can perpetuate biases:

"Recidivism risk assessment is the process of determining the likelihood that an accused, convicted, or incarcerated persons will reoffend. The process is aimed at assisting in the determination of the appropriate limitation on the freedom of the subject. With innovation in technology especially in the area of artificial intelligence (AI), recidivism risk assessment tools built on AI technology are now well-developed and used in the criminal justice system. Algorithmic tools are increasingly being used in the Canadian criminal justice system in pre-trial, sentencing, and post-sentencing phases in predicting the future criminal behaviour of accused, convicted, or incarcerated persons. The increasing use of AI technology in recidivism risk assessment in the criminal justice system raises many legal issues. I will discuss three of such issues in this blog post."

"The first issue relates to what I refer to as algorithmic racism. This arises from the use of historical data in training AI risk assessment tools. This has the tendency to perpetuate historical bias which are replicated in the risk assessments by these AI tools. The second issue relates to the legality of the use of AI risk assessments by judges in sentencing decisions. I argue that AI risk assessment based on data from a general population has the tendency to deprive a convict of the right to an individualized sentence based on accurate information. Third, there is the problem with the proprietary nature of the methodology used in the AI risk assessment tools. This is especially the case where offenders challenging their criminal sentence seeks access to these proprietary trade secrets."

Supreme Court of Canada Calendar of November 2020 Hearings

The Supreme Court of Canada has published its calendar of upcoming appeals that will be heard in November.

To find out more about any particular case, click on the docket number in parentheses next to each case name to find docket information, case summaries as well as facta from the parties.

Victoria Law Reform Commission Papers on Improving the Response to Sexual Offences

The Victoria Law Reform Commission (based in Melbourne, Australia) has published a series of issues papers for an inquiry into Improving the Response of the Justice System to Sexual Offences:

"The issues papers describe the current state of the law justice system and ask questions about how to improve it. 

• Guide to the Issues Papers
• A Working Together to Respond to Sexual Offences: Systems 
• B Sexual Offences: Key Issues in the Criminal Justice System 
• C Defining Sexual Offences 
• D Sexual Offences: Report to Charge 
• E Sexual Offences: The Trial Process 
• F People Who Have Committed Sexual Offences 
• G Sexual Offences: Restorative and Alternative Justice Models 
• H Sexual Offences: Civil Law and Other Non-Criminal Responses"

This is part of a consultation process launched by the Commission which will produce a report by 31 August 2021.

In its work, the Commission will focus on:

• barriers to reporting sexual offences: what prevents people from reporting sexual harm
• why reports of sexual harm may not proceed through the justice system
• how to reduce the trauma of victim survivors in the justice system
• how to improve data collection and reporting
• the best ways of responding to sexual offences—including alternatives to the justice system

 

Legislative Summary of Federal Bill Banning Conversion Therapy

 The Library of Parliament has published a Legislative Summary of Bill C-6: An Act to amend the Criminal Code (conversion therapy):

"The definition of 'conversion therapy' included in the bill, as paraphrased by the Department of Justice, is 'a practice that seeks to change an individual's sexual orientation to heterosexual, to repress or reduce non-heterosexual attraction or sexual behaviours, or to change an individual's gender identity to match the sex they were assigned at birth'."

"The preamble of Bill C-6 states that conversion therapy causes harm to persons who are subjected to it, particularly children. It harms society more broadly by promoting myths and stereotypes about sexual orientation and gender identity, such as the notion that these personal characteristics can and should be changed. Consequently, the bill aims to discourage and denounce conversion therapy by criminalizing certain activities related to it, with the further intention of protecting 'the human dignity and equality of all Canadians.' It amends the Criminal Code (the Code) in order, among other things, to prohibit anyone from

• advertising services related to conversion therapy;
• forcing persons or causing a child to undergo conversion therapy;
• removing a child from Canada to undergo conversion therapy abroad; and
• receiving a material benefit from the provision of conversion therapy."

Legislative Summary of Bill C-3: An Act to amend the Judges Act

 The Library of Parliament has published a Legislative Summary of Bill C-3: An Act to amend the Judges Act and the Criminal Code.

Among other things, the bill would require that judges appointed to superior courts (i.e. under federal jurisdiction) in any Canadian province would have to undertake to participate in continuing education on matters related to sexual assault law.

The summary points out:

"The provinces are responsible for appointing provincial court judges. The majority of criminal cases in Canada – including sexual assault cases – are heard in the provincial courts. The provisions of Bill C‑3 amending the Judges Act apply only to judges of superior courts, because it is outside Parliament’s jurisdiction to legislate in relation to provincially and territorially appointed judges."

LawBytes Podcast on Canada's COVID Alert App

In his most recent LawBytes podcast, University of Ottawa law professor Michael Geist talks to former Ontario Privacy Commissioner Ann Cavoukian about the COVID Alert App being promoted by the Canadian government as part of its alerting and tracing efforts during the COVID-19 pandemic:

"As the second wave of COVID-19 seems to have arrived in many countries, the importance of measures such as social distancing, masks, testing, and tracing takes on increased importance. In Canada, the COVID Alert App is another important part of that toolkit. The app has been downloaded more than 4.5 million times and has been used to alert users to a potential exposure to the virus nearly 1,700 times. Despite the potential benefits, there remain many skeptics. Ann Cavoukian, a three-time Ontario privacy commissioner and one of Canada’s best known privacy experts, joins the LawBytes podcast this week to talk about the exposure notification and how it addresses potential privacy concerns."

The Museum of Obsolete Library Science

 I came across an article Step Inside The Museum of Obsolete Library Science published in the journal of the Metropolitan Museum of Art in New York.

A great read:

"There's a popular misconception that librarians as a profession are conservative. Not politically conservative, but literally conservative—wanting to keep old stuff. Actually, nothing could be further from the truth—we are often on the cutting edge of using new technologies, and always looking for the most efficient, up-to-date way to help our patrons. Thomas J. Watson Library, for example, paid for the Museum's first T1 line to bring the internet into the building, and our Lita Annenberg Hazen and Joseph H. Hazen Center for Electronic Resources, founded in 1997, was the first dedicated electronic resources center in an art museum. We are forward thinking, technology-savvy, and driven to find the most modern way possible to fulfill our patrons' needs."

"However, the dirty little secret is that sometimes the old stuff, while no longer useful, is actually cool. When I started working in Watson Library in 2003, there were still remnants of the old world. Dot matrix printers, green-screen interfaces for our ILS (Integrated Library System, the back end of the online catalogue). We still had a card catalogue as well, although it had not been added to since 1990. As we continued to modernize, many of the artifacts were being discarded, as they were no longer useful. Fortunately, former Watson Librarians Erika Hauser and Dan Lipcan and I decided we should preserve some of this material culture, and the Museum of Obsolete Library Science (MOLISCI) was born. Here are some highlights."

Access to Justice: Join the Trusted Intermediary-Legal Information Network

Many Canadian librarians may have heard of Trusted Intermediary-Legal Information Network (TI-LI Network).

In 2019, the Saskatchewan Access to Legal Information Project (SALI) joined forces with the BC LawMatters Program and the National Self Represented Litigants Project’s Family Law in the Library Project to establish the Network to encourage cooperation between legal information providers in order to enhance access to justice.

Last week, the blog of the Vancouver Association of Law Libraries (VALL) published an invitation calling on law librarians to join the Network that has more than 80 contributors across Canada:

"The organizers recognize that user-centred design, interdisciplinary approaches, and networks are needed to address urgent, complex access to justice problems, especially during these uncertain times. The TI-LI Network thus connects legal information providers from across Canada to exchange information and maximize efficiency by encouraging collaboration and adapting of resources and materials related to legal information provision by trusted intermediaries."

"The justice landscape is changing in response to the current crisis with COVID-19 and TI-LI Network member organizations are creating new responses that are shared with trusted intermediaries to address current needs that have arose as a result of COVID-19."

The next meeting will be held on October 27th. The VALL blog post contains contact information.

There were a number of presentations about the Network at the 2019 annual CALL conference:

• Part 1: The Role of Legal Information Providers and Public Libraries in Promoting Access to Justice: Exploring Opportunities and Challenges (Brea Lowenberger, Melanie Hodges Neufeld: "In part 1 of this session, Melanie and Brea will facilitate a macro discussion to set the stage for conversation about establishing a 'National Trusted Intermediaries – Legal Information Network' (TI-LI Network). They will draw on their experience in co-establishing the Saskatchewan Access to Legal Information (SALI) Project to share their observations on the need for a establishing a national network, and invite participants' feedback on this emerging development."
• Part 2: The Role of Legal Information Providers and Public Libraries in Promoting Access to Justice: Exploring Opportunities and Challenges (Dayna Cornwall, Megan Smiley): "In part 2 of this session, Dayna and Megan will facilitate a micro discussion on lessons learned in establishing, like the SALI Project, library and legal information projects in Ontario and British Columbia. Dayna will share initial lessons learned in establishing the 'Family Law at the Library', a new project that involves partnering with libraries in the Windsor area, and Megan will share how Courthouse Libraries BC has worked since 2007 with public libraries to enhance public access to legal information in all communities throughout British Columbia."

Law Library of Congress Interview With Louis Myers, Librarian-in-Residence

 In Custodia Legis, the blog of the Law Library of Congress in Washington, D.C., has posted an interview with Louis Myers, Librarian-in-Residence. It is part of an ongoing series of interviews:

"Why did you want to work at the Law Library of Congress?
To me, the Library of Congress is the most well-respected library in the world—where else would I want to work? But on a more serious note, I think the opportunity to work with the largest legal collection on the planet and have the opportunity to learn from the expert law librarians here will be a defining moment in my career, and will truly create a framework that I will carry with me no matter where law librarianship takes me. Each morning when I wake up I am still in awe that my job is with the Library of Congress."

"What is the most interesting fact you’ve learned about the Law Library of Congress?
During one of the first weeks I learned that our foreign law collection is so large and comprehensive that foreign governments sometimes ask us to share our copies of their laws when they need to do primary source research. That is pretty cool!"

The Law Library of Congress is the world’s largest law library, with a collection of almost 3 million volumes from all ages of history and virtually every jurisdiction in the world.

October 2020 Issue of In Session - E-Newsletter of Canadian Association of Law Libraries

 The October 2020 issue of In Session is available online.

It is the monthly e-newsletter of the Canadian Association of Law Libraries (CALL) and contains news from CALL committees and special interest groups, member updates and events.

Canadian Forum on Civil Justice Fall 2020 Newsletter

 The non-profit Canadian Forum on Access to Justice (CFCJ) publishes a regular newsletter on access to justice issues.

The latest issue includes news about:

• a report on Measuring the Impact of Legal Service Interventions: "The evidence to understand and assess the effectiveness of legal services delivery in improving access to justice in Canada is sparse.  This makes it difficult for governments, policy makers, funders, legal service providers and the public to know which justice pathways and tools show the most promise in particular scenarios. The “Measuring the Impact of Legal Service Interventions” project seeks to determine the impacts of access to different types of legal services on the outcome of legal disputes and on social, economic, personal and other factors over time (...) ". The first step in the project is a literature review that "explores different methodological considerations for studies concerned with the intersection of process, outcomes and impacts in the delivery of legal services."
• a new published paper The Unintended Benefits of Innovation: The Legal Health Check-Up Revisited that looked at developments at legal clinics in Southwestern Ontario that built partnerships with individuals working at hospitals, employment services and churches to help to identify legal problems and make referrals
• a new paper The Community Being Helped is the Resource that is Needed to Extend Access to Justice to the Community about the role of community service agencies and not-for-profit organisations in helping to identify and address legal needs within underserved areas and among hard-to-reach populations
• a report on Paralegals, community agency and access to justice in Sierra Leone: this is part of a larger multi-country research initiative that seeks to compare the costs, benefits, challenges and opportunities for providing and scaling access to community-based justice services
• and more

Oxford University Press Makes Part of its Collection Free for 75th Anniversary of the United Nations

 Later this month, the United Nations will officially celebrate its 75th birthday.

Oxford Public International Law, part of Oxford University Press, is marking the occasion by making UN-related materials available for free until November 30, 2020:

"This United Nations Day (24 October 2020) marks the 75th anniversary of the entry into force of the UN Charter. In recognition of this milestone we have created a collection of articles and chapters that provide commentary on the role of the UN in international law over the past 75 years, and its significance to the development of global human rights and international peace and security."

"All content featured below from Oxford Scholarly Authorities on International Law, the Max Planck Encyclopedias of International Law, and Oxford Scholarship Online, is free to access until 30 November 2020."

 Another interesting collection comes from the Dag Hammarskjöld Library at UN headquarters in New York which has created an online exhibit called 75 Years, 75 Documents to celebrate the occasion. The exhibit is meant as "an exploration of 75 key documents that have shaped the United Nations and our world. The documents selected honour the historic breadth of the Organization’s work in the areas of peace and security, humanitarian assistance, development and human rights."

Reminder That No One Database Offers All the Canadian Law Journals You Need

The law library at the Université du Québec à Montréal (UQAM) in Montreal has published a useful reminder that no single online source or database provides access to all the major Canadian law journals.

This is an important issue when training new employees in legal research. 

My experience is that many researchers become used to searching in one or maybe two online tools when looking for commentary, forgetting that no platform provides anything close to comprehensive coverage. 

Discovery tools are useful but the content of some major databases with collections of Canadian law journals is not indexed in discovery.

UQAM librarians created a table of Canadian law journals indicating which ones are covered in CanLII, Lexis Advance Quicklaw, Westlaw Canada and HeinOnline along with the years of coverage for each journal.

Library Associations Call For Unfettered Access To Government Publications In Face Of COVID-19

Last month, the Canadian Federation of Library Associations (CFLA) and the Canadian Association of Research Libraries (CARL) called on the federal and provincial governments to assign a Creative Commons Attribution Licence (CC BY) to publicly available government information in an effort to eliminate barriers to government documents:

"Over the past months, as they faced unprecedented challenges caused by COVID-19, Canadians have relied on their governments for information related to the novel coronavirus and its impact. Now more than ever, unfettered access to taxpayer-funded government information is of fundamental importance to a democratic society and to the health of its citizens."

"Unfortunately, pre-existing barriers and confusion related to Crown copyright have exacerbated the issues associated with accessing government information. For example, onerous and unnecessary permission requests to government departments are subject to extensive delays; existing digital content remains unnecessarily restricted; and questions about the control and dissemination of both print and digital works, as well as data collections, hamper their sharing and redistribution (...)"

"Over the past months, as they faced unprecedented challenges caused by COVID-19, Canadians have relied on their governments for information related to the novel coronavirus and its impact. Now more than ever, unfettered access to taxpayer-funded government information is of fundamental importance to a democratic society and to the health of its citizens. Unfortunately, pre-existing barriers and confusion related to Crown copyright have exacerbated the issues associated with accessing government information. For example, onerous and unnecessary permission requests to government departments are subject to extensive delays; existing digital content remains unnecessarily restricted; and questions about the control and dissemination of both print and digital works, as well as data collections, hamper their sharing and redistribution. "

Many library associations such as the Canadian Association of Law Libraries have been asking that the federal government reform or abolish Crown copyright.

Law Reform Commission of Ireland Report on Accessibility of Legislation in the Digital Age

The Law Reform Commission of Ireland has published a report on the Accessibility of Legislation in the Digital Age that makes a wide range of recommendations as to how legislation can be made available online in a more consolidated and comprehensive way. 

Chapter 3 of the report, "Comparative Approaches to Making Legislation Accessible", considers, from an historical perspective, legislative developments that have taken place in other jurisdictions, encompassing both common and civil law traditions, including France, Germany, the United Kingdom, the United States of America, Canada, Australia and New Zealand. 

The Chapter looks at various measures that have been adopted in these jurisdictions to make their respective laws more accessible, for instance codification, statute revision, rolling reprint ("the periodic revision of legislation as it was amended on an ongoing basis and its publication in pamphlet form", p. 92), online consolidation of amendments, historical point-in-time information, and "officialization" (the  recognition by governments ofonline versions of legislation as the official or semi-official versions of the law).

From the press release:

"The Report points out that there are over 3,000 Acts in force (of which more than 1,000 are pre-1922 Acts from before the State was established) and the vast majority of these Acts have been amended many times, but they are not all available in their up-to-date, as-amended format."

"The Report points out that this is not satisfactory from a number of perspectives, including:

• the constitutional or rule of law perspective: it is vital that all citizens have access to the law as it currently stands; and 

• the economic and digital policy perspective: improving online access to legislation is consistent with the State’s policy on reducing the cost of doing business, and also 'digital by design' policy, including GovTech, which involves applying emerging technologies such as advanced data processing to improve the delivery of public services (...)"

"The Report being published today seeks to build on these significant improvements by proposing additional methods to make more legislation, whether as enacted or in its amended form, available online in this digital age. In doing so the Report discusses how other countries have addressed these problems, for example: 

• enactment of comprehensive codes of legislation, such as the legislative codes in the United States, where all federal law can be found online under 54 subjectheadings, called Titles, of the United States Code: one of its best-known is Title 11, the bankruptcy code; and 

• consolidation of priority areas of legislation, such as in New Zealand and Wales where planned programmes of consolidation must be presented to their parliaments."