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.