As artificial intelligence (AI) increasingly transforms everyday life, its profound influence on legal practice and legislation is becoming more apparent within Canadian criminal law. AI technologies are reshaping law enforcement procedures, judicial processes, and legislative frameworks. This growing reliance on AI necessitates a careful consideration of its implications on individual rights, privacy, and foundational principles of justice.
AI in Police Investigations: Predictive Policing, Surveillance, and Decryption
AI-driven investigative methods have been adopted by the Royal Canadian Mounted Police (RCMP) and various municipal and provincial police services across Canada, including those in Vancouver, Toronto, Calgary, and Saskatchewan. These agencies employ predictive policing and algorithmic surveillance technologies to enhance their capabilities.
Predictive policing encompasses both location-focused algorithms—which analyze historical crime data to anticipate future crime hotspots—and person-focused algorithms, which evaluate an individual’s likelihood of engaging in criminal activities.
Algorithmic surveillance includes technologies such as facial recognition systems, automated license plate readers, and social media monitoring, all of which significantly bolster police surveillance capacities. The use of AI-powered facial recognition software, notably Clearview AI, has sparked controversy due to its use by the RCMP and Toronto Police Service to scan billions of images gathered from the internet without consent. This practice raises serious concerns about privacy violations, systemic biases, and potential infringements upon Section 8 of the Charter, which protects against unreasonable searches and seizures.
Moreover, with the rise of cybercrime, encryption increasingly poses obstacles to lawful access by police during investigations. To address this, the RCMP is developing an AI system designed to analyze seized forensic data and to assist with decryption. While encryption may hinder national security and criminal investigations, decrypting data without proper oversight could violate Charter protections against unlawful searches and seizures.
Crimes Using Artificial Intelligence
The first AI deepfake criminal case in Canada, R. c. Larouche (2023), involved an accused who created over 86,000 child pornography files using deepfake technology. The Court of Québec recognized the novel risks posed by deepfake technology, as the evidence was discovered by chance. The accused received a sentence of 8 years’ detention, reduced by time served, resulting in a final sentence of 5 years and 11 months’ imprisonment.
Another notable case involving AI was R. v. Chaudhry (2019), where the accused claimed that AI-driven safety features in his vehicle meant he was not in effective care or control despite his impairment. The Ontario Court of Justice rejected this defence, emphasizing that reliance on automated vehicle systems does not negate legal responsibility for impaired driving.
Existing Legislative Framework Combating AI-Driven Crimes
The Criminal Code of Canada applies to AI-related crimes, including deepfakes used for defamation, fraud, criminal harassment, and the possession, production, and dissemination of child pornography, among others.
Emerging Canadian AI Laws
The Online Harms Act, introduced in 2024, holds online platforms accountable for reducing harmful content by establishing a Digital Safety Commission to enforce compliance. The Act mandates platforms remove child exploitation material, hate speech, and violent content. It includes amendments to the Criminal Code and the Canadian Human Rights Act, enhancing protections against hate crimes and child sexual exploitation.
The Artificial Intelligence and Data Act is Canada’s proposed framework for regulating high-impact AI systems within the commercial sector, focusing on risk mitigation and accountability. Section 38 criminalizes possessing or using personal information for AI development if obtained illegally. Section 39 criminalizes deploying AI systems that knowingly or recklessly cause significant physical or psychological harm, property damage, or economic loss through fraud. Violations carry penalties up to $25 million or 5% of global revenues for corporations, and up to five years less a day imprisonment or substantial fines for individuals.
The future of Artificial Intelligence in Canadian Criminal Law
As AI continues to reshape Canadian criminal law, understanding these developments is essential for protecting fundamental rights and freedoms under the Charter. While AI provides innovative solutions to complex issues within criminal justice, careful attention must be paid to fairness, transparency, and accountability. If you find yourself facing legal challenges related to these rapidly evolving technologies, Collett Read LLP’s dedicated defence team is committed to staying informed and vigilant, ensuring effective advocacy and safeguarding your rights through the complexities of modern criminal law. Give us a call at (905) 541-2228 or fill out a consultation form to get connected today.
