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OHRC submission to the Standing Committee on Justice Policy on Bill 194

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reporting on the state of human rights

November 14, 2024

Today, the OHRC made a submission to the Standing Committee on Justice Policy on Bill 194, the Strengthening Cyber Security and Building Trust in the Public Sector Act, to call for embedding human rights principles in the public sector’s use of artificial intelligence.

Human rights in Ontario, as expressed in the Ontario Human Rights Code, are foundational, quasi-constitutional, and require that all other Ontario legislation, regulations, policies, procedures, and programs – including Bill 194 - be consistent with the Code.

The Commission has been monitoring the development of digital technologies and their impact on human rights for years. Integrating a human rights-based approach, it has worked with the public and private sector, including regulators, businesses, government ministries - and continues to work with the Ministry of Public and Business Service Delivery and Procurement - to advocate for strong AI guidelines. 

Bill 194 is a positive start, with the stated goal of protecting Ontarians. There are key elements, however, the Bill needs to address, to ensure that the opportunities, benefits, and attendant protections of AI are available to all Ontarians, without discrimination. Human rights protections are necessary to prevent predictable and unforeseen harms from AI. The use of AI by public sector entities around the world has already resulted in serious harms to individuals and communities, including discrimination based on race, gender, and other personal attributes. 

The use of AI technologies has reproduced and, in some cases, intensified discrimination. For example: 

  • Across the United States, in health systems using AI for risk-scoring, fewer resources were allocated to Black patients compared to white patients with the same level of need. 
  • In the Netherlands, 20,000 families were wrongly investigated by the country’s tax authority, using an algorithmic system, for fraudulently claiming child benefit allowances. It was reported that: “Tens of thousands of families — often with lower incomes or belonging to ethnic minorities — were pushed into poverty because of exorbitant debts to the tax agency. Some victims committed suicide. More than a thousand children were taken into foster care.”

As outlined in the Commission’s written submissions, there are many more examples which have led to tragic and harmful results.

Legislation rooted in human rights will protect Ontario’s communities while advancing economic opportunities. When AI’s benefits are available to all Ontarians without discrimination, Ontario benefits economically. Recognizing human rights protections is vital to Ontario’s economic prosperity. The Organisation for Economic Co-operation and Development (OECD) has made human rights one of its five AI Principles to “promote the use of AI that is innovative and trustworthy and that respects human rights and democratic values”. 

Some jurisdictions are passing AI legislation which prioritizes human rights to proactively align with international standards, thus, positioning themselves to attract investment in ethical AI development. Ontario can be a leader by creating a robust regulatory ecosystem that helps local talent develop AI products and services which appeal to customers across the globe.

The Commission’s recommendations are vital to addressing foundational concerns in Bill 194, which does not reference human rights and the protections under the Human Rights Code. These protections must be embedded in the legislation itself – like what was done in the Comprehensive Ontario Police Services Act, which includes as one of its principles:

“The importance of safeguarding the fundamental rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms and the Human Rights Code.”

Also, the Commission recommends that the government embeds a principle-based approach to AI regulation, asserting that AI should be valid, reliable, safe, privacy protective, transparent, accountable, and human rights affirming. Bill 194 should include regulations which set out explainability requirements for AI systems before they can be used. The Europe and United States have committed to these requirements.

Bill 194 must establish a clear “no-go” zone for AI technologies and be clear about the government’s role and how it will respond, in the public interest, if a public sector entity continues to use a technology that proves unreliable, unsafe or unlawful.

Finally, Bill 194 must include policing and social assistance services as focus areas, given their significant impact on marginalized communities and the previously designated areas of schools, children’s aid societies, and hospitals. 

Consultation is essential, but implementation is key. It is important that the results of consultations, including with the Commission and other regulatory bodies, experts, and communities, are implemented in future drafts of the legislation.

In sum, the foundational nature of the Commission’s recommendations requires their inclusion in the legislation itself, versus the regulations. Ontario is a leader in human rights. It can maintain that leadership by embedding human rights principles in the use of AI. The Commission is happy to engage in any further consultations on this Bill or its pending regulations.

Patricia DeGuire
Chief Commissioner
Ontario Human Rights Commission