AI bill ‘democratically illegitimate’ and litigation ‘likely’ without proper consultations, say AFN, civil society orgs
As the House Industry and Technology Committee wrapped up witness testimony on the federal government’s privacy and artificial intelligence legislation, former BlackBerry executive Jim Balsillie added his voice to the growing chorus calling for it to be sent “back to the drawing board,” alongside the Assembly of First Nations, which says the lack of nation-to-nation consultation could land the government in court over the bill.
On Feb. 14, the committee held its last scheduled meeting to hear from witnesses on Bill C-27, which the Liberals introduced in 2022 to repeal parts of the Personal Information Protection and Electronic Documents Act (PIPEDA), as well as enact the Consumer Privacy Protection Act (CPPA) and the Artificial Intelligence and Data Act (AIDA). The legislation is the Liberals’ second attempt to amend PIPEDA after the former Digital Charter and Implementation Act died on the Order Paper following the 43rd Parliament’s dissolution before the 2021 election.
The committee will begin its clause-by-clause study of Bill C-27 following the Easter Break, with the deadline for the submission of briefs on March 1. Committee members will have until March 14 to submit any proposed amendments to the bill.
However, Balsillie, former co-CEO of Research in Motion and founder of the Centre for Digital Rights, told The Hill Times that a lack of public consultation and an overreliance on discussions with industry over civil society organizations make the bill “democratically illegitimate.” Because of those flaws in the process and substance of the AIDA, he said it requires a “complete restart” and needs to be severed from the rest of the legislation.
Balsillie told the committee on Feb. 14 that passing the “seriously flawed legislation” would only deepen Canadians’ fears of artificial intelligence as “AIDA merely proves that policymakers can’t effectively prevent current and emerging harms from emerging technologies.”
Balsillie told The Hill Times that the industry has been “gaslighting” Canadians over potential “existential harms” that he said are as “unquantifiable, indeterminate, and unidentifiable” as the “overstated” potential economic benefits of moving forward quickly with the legislation.
In contrast, Balsillie also highlighted some of the “countless” forms of well-documented harms those systems already pose, including cases of housing and employment discrimination, or recommending longer prison sentences for racialized people.
While he said that AI innovation will certainly have its benefits, Balsillie said innovation is not an excuse for rushing the legislation forward.
In an October 2023 brief submitted to the committee, the Assembly of First Nations (AFN) said it wasn’t consulted on the legislation before or after its introduction.
“The minister did not hear First Nations, does not understand First Nations, and it shows in the legislation,” the AFN wrote, adding that litigation is “likely” if the government doesn’t meet its obligation to consult as the bill infringes on the rights of First Nations, including on data sovereignty.
The assembly also voiced its concerns about the potential harms of AI technology, including as a new avenue for racial profiling in banking, health care, criminal justice, and in its dealing with government officials.
“Imagine the potential for such abuse to continue or even worsen when biased and prejudiced individuals and organizations are building AI systems that will implicate First Nations,” the AFN wrote, adding that the bill in its current form does little to assuage those concerns.
“This legislation cannot stand as it is. The best solution is for the minister to meet his obligation to Nation-to-Nation consultations with First Nations and obtain their free, prior, and informed consent,” the AFN wrote. “Failing that, the minister must clarify that the Act cannot be interpreted or applied in such a fashion as to derogate from First Nations rights.”
The AFN did not respond to The Hill Times’ request for comment by publication deadline.
Asked for comment on the AFN’s letter, Innovation, Science, and Industry Minister François-Philippe Champagne (Saint-Maurice–Champlain, Que.) told The Hill Times he takes their concerns “very seriously,” and that there will be additional opportunities for consultations, calling the legislation a “work in progress.”
“We can always do more, and we can do better,” Champagne said on Feb. 15. “We’re very committed to reconciliation and making sure that we consult with First Nations’ leadership and communities … we’re looking forward to engaging with them, and certainly, we’ll be reaching out.”
However, Champagne rejected the idea that the legislation needs to be redrafted, pointing to the calls to act urgently to adopt the legislation from witnesses like Yoshua Bengio, a member of the United Nations’ Scientific Advisory Board for Independent Advice on Breakthroughs in Science and Technology and the co-director of the Canadian Institute for Advanced Research’s Learning in Machine and Brains program.
On Feb. 5, Bengio, also the scientific director of Quebec’s Mila AI Institute, told the committee that Canada “urgently need[s] agile AI legislation,” and that he believes C-27 “is doing that, and is moving in the right direction.” He also said that while he broadly supports AIDA, its framework should be strengthened through regulations, and early provisions should become applicable as soon as the law is adopted.
Champagne said the government would continue to listen to voices like Bengio’s, as well as those of the AFN to strike the right balance, but said that Canada needs AIDA’s framework in order for the country to move “from fear to opportunity.”
“We need to build trust, and the way to do that is to have a framework,” Champagne said.
Liberal MP Ryan Turnbull (Whitby, Ont.), Champagne’s parliamentary secretary, defended the consultation process at committee, pointing to the more than 300 meetings and consultations ISED had conducted, and that there would be “two years’ worth of consultations” on the regulations that stem from the bill in the future.
However, Balsille cited a submission by Andrew Clement, the information policy research program co-ordinator at the University of Toronto, examining those consultations. In his Dec. 6, 2023, submission to the committee, Clement noted that of the 314 listed consultations submitted to the committee by Champagne, 253 were with academic (28), business (216), and civil society stakeholders (nine), with the rest conducted with government officials (39), individuals (six), and 15 “questionable” consultations with organizations he views as not relevant to C-27, not a stakeholder, or not constituting a “consultative meeting.” Additionally, the first of those consultations began on June 23, 2022, more than a week after the legislation was first tabled in the House of Commons.
In an interview with The Hill Times, Clement said he doesn’t think the list of meetings constitute “legitimate public consultations,” and seem “more oriented toward trying to get business onside” rather than “good governance and public interest.”
“Civil society and the people who are ostensibly going to be the most affected and need protection have been completely left out of them,” Clement told The Hill Times, attributing the over-representation of industry stakeholders to a product of the “structural conflict of interest” between the need to regulate the industry and ISED’s mandate to promote it.
“To craft this regulation, [ISED] had to think outside of their institutional box, and they haven’t demonstrated the ability or inclination to do that,” Clement said. He added that he doesn’t believe there had been any mal-intent behind the overemphasis on industry stakeholders during the consultations, but it was instead a matter of ISED going for the “low-hanging fruit” of stakeholders with whom they were already in regular contact.
“The main thing to redo this properly is to broaden the range of people contributing to its development to reflect better who’s actually going to be affected by it,” Clement said.
The International Civil Liberties Monitoring Group (ICLMG) said its concerns with AIDA have only been strengthened and reinforced by the testimony heard during the committee’s study.
Tim McSorley, the ICLMG’s national co-ordinator, told The Hill Times he doesn’t consider his organization’s Aug. 25, 2022, meeting with Surdas Mohit, ISED’s director of AI and data policy, at which the organization raised its concerns after the bill had been tabled, to be a legitimate consultation.
“Consultation isn’t putting out a bill and getting a reaction,” McSorley said. “Consultation is doing outreach with stakeholders before you table the legislation so you can have an open conversation about what it should contain. That simply didn’t happen.”
While he said that he appreciates that the government proposed its own amendments to the legislation, he doesn’t believe those changes would effectively address the concerns with AIDA, and that the government could have spent that effort “rethinking its approach and engaging in real consultation.”
“We’ve said from the beginning that AIDA is not fit for purpose and couldn’t be salvaged in committee,” McSorley said. “It needs to be severed from Bill C-27 and brought back to the drawing board for consideration outside of not just industry, but with other stakeholders and other government departments.”
McSorley said he agrees with Clement’s assessment that the consultations’ bias toward industry stakeholders demonstrates a conflict of interest at ISED.
McSorley said that the ICLMG is still pushing for members of the committee to “do what they can” to amend the legislation and make the strongest possible recommendations to improve AIDA, and failing that at committee, attempt to do so again at third reading or vote against it.
“We think that it’s up to the committee to act,” McSorley said, noting that the Liberals do not have a majority on the committee. “Right now, there’s an opportunity to fix this process and stop [the legislation] before it moves forward and becomes law to ensure that AI oversight and regulation in Canada is done properly.”
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