Accountability Mechanisms for a Proper Administration of Algorithmic Justice – A Canadian Perspective

ABSTRACT While technology tools and applications are constellating our legal and judicial landscape, the flexible nature of modern technology and varied innovative practices would hardly fit within a rigid rule-based framework. Several actors and stakeholders, from judges and members of legal professions to Crown prosecutors and law enforcement agencies, take part in ensuring the due and proper administration of ‘algorithmic justice’. In respect to civil and tortious liability, judicial and prosecutorial immunities bar most claims against judges and Crown attorneys except in egregious bad faith cases. Across Canada, accountability mechanisms rest essentially on judicial appreciation of key principles of natural justice and adjudicating between conflicting fundamental rights on a case-by- case basis. Where AI regulation / litigation is concerned, soft law and ad hoc adjudication have stepped up to the fore, pending a comprehensive and binding regulatory framework yet to come.

KEYWORDS Algorithmic justice - Accountability - Natural justice - Fundamental rights

TABLE OF CONTENTS 1. Introduction. – 2. Canada’s Approach to Core Digital Challenges. – 3. Accountability. – 3.1. Civil and Tortious Liability. – 3.1.1. Crown Liability. – 3.1.2. Judicial and Prosecutorial Immunities. – 3.1.3. Law Enforcement. – 3.2. Professional Ethics. – 3.2.1. Judicial Ethics. – 3.2.2. Ethical Duties of Counsels and Prosecutors. – 3.3. Adjudicative Accountability. – 3.4. Institutional Accountability. – 4. Conclusion.