As the use of artificial intelligence (AI) becomes more common in everyday life, the role of AI in legal proceedings and the guidelines for its use become increasingly important to safeguard the function of the justice system while balancing access to justice considerations.
The Court recognizes AI’s benefits in preparing documents for litigation and the challenges of new technologies. As AI-generated documents become implemented in how we interact with the justice system, the Court has obligations to uphold the rule of law, safeguard public confidence in the justice system, and maintain the integrity of legal proceedings.
On December 20, 2023, the Federal Court of Canada issued a Notice on the use of AI in documents submitted to the Court (the “Notice”), as well as interim principles and guidelines on the Court’s own use of AI. We have summarized this information below.
Interveners, parties, and self-represented litigants using AI in court
All documents submitted to the Court and prepared for litigation are impacted by the Notice, except for Certified Tribunal Records submitted by tribunals or other third-party decision-makers.
As a result of the Notice, parties and interveners in legal proceedings at the Federal Court are required to make a Declaration for AI-generated content if they have prepared and submitted any document to the Court with AI-generated content or if such a document has been submitted to the Court on their behalf. The first paragraph of text in each document where AI has been used to create or generate content must disclose this fact. The Declaration may consist of a single, clear sentence to this effect.
Notably, the Declaration requirement only applies to certain forms of AI, specifically computer systems capable of generating new content and independently creating or generating information and documents. The Notice does not cover AI forms that cannot generate new content and do not require a Declaration.
Self-represented parties and counsel alike have responsibilities relating to the ethical use of AI. In particular, the Court has emphasized the importance of using only reliable sources when making legal references in documents submitted to the Court. Citations of jurisprudence, statutes, and policies should only be taken from trusted public services such as CanLII, official court websites, and well-known reference materials.
Where used, AI-generated documents should be reviewed for accuracy, and the information included in such documents should be verified. The Court encourages counsel to consider providing traditional human services to clients who may not be familiar with AI before using AI in proceedings and to avoid using AI where clients have expressed hesitance to the approach.
For further information on the Notice for using AI in court proceedings, see NOTICE TO THE PARTIES AND THE PROFESSION The Use of Artificial Intelligence in Court Proceedings December 20, 2023.
Interim Principles and Guidance for AI Use by the Court
The Court has recognized that there are benefits and challenges not only when AI-generated content is used by those accessing the Court but also when AI is used by members of the Court and their law clerks. The Court has expressed that it will be attentive to concerns about judicial independence and will work cautiously to ensure that AI use does not encroach upon the Court’s decision-making function. The Court will not use AI to make judgements and orders and provide reasons for judgment without first engaging in public consultation.
Further, the Court is committed to following the below principles in any internal use of AI:
- Respect of fundamental rights;
- Cybersecurity; and
- Verification of results by humans
The Court has recognized that AI can improve the efficiency of the legal system and help reduce the amount of time counsel, self-represented parties, and other individuals and entities are left waiting for assistance and decisions. AI can aid with legal research, administrative tasks, and analyzing large amounts of raw data, all of which contribute to a more efficient judicial system. As investigations into potential uses for AI for internal administrative purposes begin, potential pilot programs will include human verification procedures to ensure the accuracy of documents and information generated by AI. The Court will also consult stakeholders where a specific use of AI may impact the legal profession or the public.
For further information on the use of AI by the Court, see Federal Court – Artificial Intelligence (fct-cf.gc.ca)
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