Bill 194, the Strengthening Cyber Security and Building Trust in the Public Sector Act, was introduced in May and is meant to provide new tools to prevent and respond to cybersecurity threats and safeguard critical public services, such as health care and education. The Act is aimed at helping hospitals, schools and children’s aid societies prevent and rapidly respond to cyber threats and cyberattacks and minimize service interruptions while also safeguarding the data of children and youth from being stolen or used inappropriately.
But the Law Commission of Ontario (LCO), in a recent submission to the province, is saying the legislation is too brief and lacks key provisions needed to ensure public sector AI use is beneficial, lawful and accountable.
“Provincial public sector AI systems have the potential to affect the most significant issues and interests in Ontarian’s lives, including their personal liberty, education, employment, health care, housing, access to economic opportunities, and income security,” the submission said. “Experience in other jurisdictions repeatedly demonstrates the need for comprehensive and thoughtful public sector AI legislation and regulations. The Government of Ontario can become a leader in successful AI deployment by applying hard-learned lessons to ensure trustworthy and accountable public sector AI systems in our province.”
The law commission noted the province has adopted a “trustworthy AI framework” that includes three strategic priorities: no AI in secret, AI use the people of Ontario can trust and AI that serves all the people of Ontario.
But LCO executive director Nye Thomas said Bill 194 falls short of these principles. He noted there has been “a lot of thought and discussion” over the past four years about how to regulate artificial intelligence systems.
“There is a need for disclosure and to protect human rights,” he said. “Bill 194 talks something to the effect that public health systems have to be developed to ensure that they are properly mindful of privacy considerations. That’s important, but they also need to be designed to ensure they keep human rights principles in mind.”
Ryan Fritsch, LCO legal counsel
“If someone’s using AI for a spell checker, I’m not too worried about that. But if someone is using AI to decide who should get bail or not, I am very worried about that,” he said. “The province suggests they could give themselves the power to regulate different AI technologies, but they don’t tell us how — they leave it up to regulations. And the challenge with regulations is that they can be developed and approved in Cabinet without direct legislative oversight.”
Fritsch said there was significant enthusiasm for AI in the criminal justice sector several years ago, with people saying it could take people’s personal circumstances into account better and cut through human biases in areas like bail and sentencing. But he noted AI “fell quite short of that idea,” with people finding the technology was using historical data and reproducing biases in that data in its recommendations.
“In criminal justice, you can get cases that are narrowed to a set of technical facts, so leaving all this on the criminal justice system to regulate by common law is going to cause a lot of problems,” he said. “And that’s why we suggest that a more coherent and co-ordinated and comprehensive approach to AI regulation should be applied in criminal justice and Ontario overall.”
To that end, the LCO is saying Bill 194’s legislative objectives should not be restricted to “protecting privacy,” as protecting human rights and complying with procedural fairness are equally important. It says Bill 194 should enshrine trustworthy AI principles in the body of the legislation because comprehensive legislation is necessary to provide the foundational governance framework for these systems.
The law commission says comprehensive legislation would provide consistent direction and accountability requirements to the actors, departments and agencies within its scope. It would also ensure important AI policymaking is subject to legislative and public review. Finally, comprehensive legislation would establish a level of public and legal accountability commensurate with the issues and rights at stake.
The LCO also says Bill 194 should be amended to include AI systems used in the criminal justice systems, including police services, as well as courts and tribunals. Absent this amendment, the LCO says police services and courts in Ontario could adopt predictive policing, facial recognition surveillance, automated bail and sentencing risk assessments and a myriad of other technologies without having to comply with Bill 194’s accountability requirements.
Thomas said there is “extraordinary goodwill” across different sectors when it comes to AI and many groups who want to “get things right.”
“There’s a real desire to bring people together to anticipate problems and to try to develop regulations thoughtfully,” he said. “But we’ve seen the worst-case scenarios in other jurisdictions where there are issues with secrecy and the like. We can avoid that.”
Nicholas Rodrigues, acting strategic issues and media advisor to Ontario’s Ministry of Public and Business Service Directory and Procurement, confirmed that the province had received the LCO’s submission and will “thoroughly review all feedback on Bill 194 to enhance protections and address the evolving needs of Ontarians.”
Bill 194 has passed first reading at the Ontario legislature, which is in recess until Oct. 21.
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