Law Times

Page 6 OctOber 1, 2018 • Law times www.lawtimesnews.com Committee retreats from uncharted waters BY KADY O'MALLEY F or a few moments, it almost seemed as though the federal jus- tice committee was poised to take the plunge into what is, at least in federal political circles, the most feared and heavily mythologized depths of un- charted constitutional waters. For more than 10 minutes, Murray Rankin — an NDP MP from Victoria and his party's lone representative to the committee — did his best to persuade his Liberal and Conservative colleagues to back his bid to examine the implications of Ontario Premier Doug Ford's move to invoke the notwithstanding clause in response to an Ontario Superior Court decision that temporarily thwarted his plan to forcibly shrink Toronto City Council by eliminating nearly half of the current councillors. To his credit, Rankin went out of his way to emphasize that this wasn't a tacit declaration of war on s. 33, noting that he recognizes that it is "an integral part of the Charter" and, given its origin story, "truly the price of admission" to the 1982 repatriation. He also stressed that he was "perfectly content" to delay the study un- til after the committee has worked its way through its current legislative to-do list, which includes, among other things, the omnibus overhaul of the criminal justice system put forward by federal Justice Minister Jody Wilson- Raybould earlier this year. All he wanted, he said, was a commitment that the committee would, at some point, undertake the pro- posed study, which would be focused specifically on Ford's suggestion that he might in- voke the clause "on a regular basis" rather than sparingly as a very occasional exception to the rule. Alas, for Rankin — and all those con- stitutional lawyers, political science pro- fessors and armchair legal experts who were readying their bowties and speak- ing notes in anticipation of making the invitation list — after listening politely to his pitch, the Liberal MPs who collec- tively control the committee rebuffed his proposal not, they stressed, because they disagreed with the premise but because they didn't think it could be squeezed into the work schedule for the next year. While Rankin and his colleagues would doubtless have been disappointed by the decision regardless of the osten- sible rationale behind the rejection, the Liberal response would have been par- ticularly frustrating simply because it was, at least technically, true. Given the ever-lengthening list of justice-related legislation requiring at least a cursory committee review, it would be tough to justify carving out even the five meetings proposed by Rankin's mo- tion to re-examining a con- stitutional provision that has never been anything but controversial since it was first f loated as a compromise dur- ing the repatriation process. Thanks to the fixed election date law, every Parliament now operates on a strict four-year deadline, with the date of the next trip to the polls set out by statute. It's a relatively recent phenomenon at the federal level, where it was brought in by the then-minority Conservatives un- der Stephen Harper as part of the freshly elected government's pledge to boost accountability within the system by pre- venting a prime minister from timing an election call to serve the political inter- ests of their party. But as we've seen since then, it also had one unfortunate and unintended, if easily foreseen, consequence: the cre- ation of what amounts to a countdown clock that effectively turns the last 12 months or so of the four-year parlia- mentary term into one long preview of the campaign to come. Instead of seizing on issues such as, yes, the latest deployment of the not- withstanding clause, the government becomes increasingly fixated on hustling through its most high-priority bills, while the opposition analyzes every opening to winnow away at its credibility. The result: even less leeway for truly nonpartisan, cross-aisle scrutiny of is- sues that can't be packaged into a pre- election messaging campaign — which, in this case, seems to include the practi- cal result of a measure designed to cir- cumvent Canadians' Charter rights. Barring a well-timed outburst of topical outrage between now and next summer — when those campaigns will finally officially get underway — it looks like Ontario's unprecedented move to invoke the notwithstanding clause will get a pass from Parliament this time around; although, if Ford does follow through with his promise to do it again, as often as necessary, it's entirely possible that even those Liberals on the justice committee will consider bumping it up from the bottom of the to-do list. LT uKady O'Malley is a member of the parliamentary press gallery in Ottawa and writes about politics, procedure and process for iPolitics. She also appears regularly on CBC television and radio. COMMENT u EDITORIAL OBITER By Gabrielle Giroday ©2018 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reli- ance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd. LT.editor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $205.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $199 + HST per year for online only. Single copies are $5.00. Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. 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Karen Lorimer Managing Editor . . . . . . . . . . . . . . Jennifer Brown Editor . . . . . . . . . . . . . . . . . . . . . . Gabrielle Giroday Staff Writer . . . . . . . . . . . . . . . . . Anita Balakrishnan Copy Editor . . . . . . . . . . . . . . . . . . Patricia Cancilla CaseLaw Editor . . . . . . . . . . . . . . . . . . Leah Craven Art Director . . . . . . . . . . . . . . . . . . . Phyllis Barone Production Co-ordinator . . . . . Jacqueline D'Souza Electronic Production Specialist . . . Derek Welford Artificial intelligence A lmost two decades ago, the word "globalization" was the buzzword on everyone's lips. In particular, I always thought about Thomas Friedman's 1999 book, The Lexus and the Olive Tree, which famously compared globalization to a sunrise. My reading of Friedman was that whether you were for globalization or against it was besides the point. Globalization was inevitable. Fast forward to an age where (almost) everyone has a smartphone in their hand. Much ado has been made about the use of artificial in- telligence, in the legal profession and beyond. This issue of Law Times presents varying takes on the power of AI and the ethical implications of its use. In one piece, Petra Molnar, a researcher with the University of Toronto's International Human Rights Program at the Faculty of Law, says that "without appropriate safeguards and oversight, the use of AI is very risky." Molnar and her colleagues have worked on a report that recom- mends independent oversight of automated decision-making by gov- ernment. James Kosa, who practises with clients using AI, has a dif- ferent take. "I encourage the authors and government to not abandon AI as a potential tool but also to look at how to do it properly so that they can achieve its objectives of efficiency, the cost effectiveness and reliability without sacrificing human rights," he says. In another feature that looks at how lawyers run their practices, Isi Caulder, a partner at Bereskin & Parr LLP in Toronto and co-leader of the firm's artificial intel- ligence practice group, says that AI will be "ubiqui- tous" with time." The advent of artificial intelligence — and the convenience it can afford — may be commonplace 20 years from today. The questions will be how its use is controlled and regulated, if at all. LT The Hill Kady O'Malley Kady O'Malley

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