Background
As artificial intelligence (AI) continues to gain traction across various sectors, its application within the legal field is becoming increasingly significant. Recognizing this, the Federal Court of Canada has taken proactive steps to provide clear guidance on the use of AI in court proceedings. The practice notice initially released in December 2023, followed by an update in May 2024, alongside an explanatory note, highlights the Court's commitment to maintaining the integrity of judicial processes amidst technological advancements.
December 2023 Practice Notice
The original practice notice from December 2023, titled " The Use of Artificial Intelligence in Court Proceedings," mandated that parties inform the Court and each other if AI was used to generate content in any document submitted. This declaration must be included in the first paragraph of such documents ensuring transparency and allowing the Court to gauge the extent of AI usage. The notice emphasized the necessity for counsel, parties, and interveners to adhere to this requirement, aiming to uphold justice, public confidence, and the rule of law.
Key Elements:
- Declaration Requirement: Any document submitted to the Court or prepared for litigation that contains AI-generated content must include a declaration in the first paragraph. For example: "Artificial intelligence (AI) was used to generate content in this document."
- Scope of Application: The declaration applies to documents where the content was created or generated by AI. The notice does not apply to Certified Tribunal Records and AI programs for system automation, voice recognition, or document editing.
- Guiding Principles: The notice outlined principles, urging caution with AI-generated legal references and advocating for a "human in the loop" approach to ensure accuracy and trustworthiness.
The Court confirms that it will not use automated decision-making tools to make decisions or render judgments unless it has first engaged in public consultation.
May 2024 Update and Explanatory Note
The May 2024 update, titled " Update to the Use of Artificial Intelligence in Court Proceedings," and accompanied by an explanatory note, built upon the original notice, addressing specific concerns raised by the AI Working Group and other stakeholders. This update clarifies ambiguities from the initial notice and introduces more detailed requirements and principles.
Key Updates:
- Clarified Declaration Requirements: The update clarifies that a declaration is required if the content included in documents was generated directly by AI. It also distinguishes between AI suggesting changes (no declaration needed) and AI acting as a co-author (declaration required).
- Scope of Application: The update clarifies that it does not apply to Certified Tribunal Records or Expert reports, which should disclose AI usage under the Expert Witnesses Code of Conduct.
- Detailed Principles: The update reiterates the importance of caution, verification, and neutrality in AI usage. It emphasizes that including an AI declaration will not attract negative inferences from the Court. The Court emphasizes that the primary purpose of the declaration is to inform and ensure transparency, without penalizing parties for using AI.
- Onus on New Counsel: When a new counsel takes over a case, there is an expectation for them to make best efforts to determine whether previously filed materials contain AI-generated content. This ensures transparency throughout the litigation process.
Challenges and Considerations
- Ethical and Access to Justice Concerns: The Court emphasizes the importance of considering ethical issues and access to justice. Lawyers are strongly encouraged to provide traditional human services when clients are unfamiliar or uncomfortable with AI.
- Ongoing Consultation: The Court is committed to ongoing consultations with the Bar, AI experts, and other stakeholders through its Artificial Intelligence Working Group. This iterative approach ensures that the guidelines remain relevant and effective as AI technology evolves.
- Responsibility of Counsel: The guidelines place a considerable responsibility on legal professionals to verify AI-generated content and provide accurate declarations. This highlights the importance of diligence in the legal profession.
Commentary
The Federal Court's practice notices reflect a proactive approach to integrating AI into the legal framework while maintaining transparency and accuracy. By mandating declarations and establishing guiding principles, the Court aims to harness the benefits of AI while safeguarding the integrity of the judicial process and upholding public confidence in the justice system.
The guidelines effectively balance adopting innovative technologies with the need for caution, ensuring that technology enhances rather than undermines the pursuit of justice. As AI continues to advance, these guidelines will undoubtedly evolve, reflecting the Court's commitment to justice and technological adaptation.
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