Industry Committee on Nov. 28th, 2023

[Dr. Kristen Thomasen]

Absolutely. Thank you for the question. I'm happy to explain that.

The exact wording, of course, we would leave to the discussion of the expert lawmakers and to your esteemed committee, who are working on proposed amendments. The reason we incorporated that wording into proposed section 5 was to respond to the ways in which harm can be experienced at the collective level and not solely at the individual level.

The law has traditionally recognized individual harm. If I'm injured physically or psychologically or I lose money, that has been more the traditional focus of the law. As I mentioned in an earlier response, the law is going to have to start to recognize and acknowledge the ways that harm can be experienced by the group and that this harm affects us as individuals as well. Our wording is meant to provide a suggestion for how that could be incorporated here.

The reason that we incorporate that—as you see in some of the discussion that follows the suggestion—is that AI systems trained on large bodies of data are used to identify patterns and to draw out inferences that can affect folks based on the groups they are a member of, even if it doesn't affect them directly as an individual. To recognize that as a harm is significant. It allows the act to actually capture some of the ways in which inequitable injury and losses from the growing and flourishing of this industry in Canada are going to be distributed within society.

If there's time, I'm happy to give an example. We have some examples of collective injuries in the written submissions as well, if that is easier.

[Viviane LaPointe, Liberal, Sudbury, ON]

I would also be interested in hearing how you would see the implementation of those amendments. How can that be done in an effective way?

[Dr. Kristen Thomasen]

Here's where there's a little bit of a struggle, and it's part of the reason for going back to the recommendation that actually it would be preferable to revisit this act altogether. I will point to that first, and then I will speak to the practicalities.

I think part of the challenge here is that it seems that one of the federal heads of power used to develop this act was the criminal law head of power. There's a tension between a criminal law penalty, which should only arise at a high threshold, and the need to acknowledge and mitigate as many harms from AI as possible, especially if we want to see this industry actually flourish and bring benefits to Canada. I would acknowledge that the tension exists and that this is something more complex to resolve, but in the structure we have right now, the way we would see that play out in practice would be through greater refinement and instruction from the regulations and from the minister going forward.

Again, that's acknowledging the critique of that structure. Along the lines of how the Privacy Commissioner provides guidance to businesses on how to meet certain criteria, I think this would be an area where education norm-setting would be absolutely crucial. I do think that, bottom line, it is imperative that this act not overlook collective and group-level harm if it's going to actually mitigate the harms we'll see as the AI industry grows and becomes more widespread.

[Viviane LaPointe, Liberal, Sudbury, ON]

What recommendations could you provide to this committee on how AI legislation can or should be protective of equality and human rights when it comes to private companies using AI in public spaces?

[Dr. Kristen Thomasen]

It's a fantastic question. A human rights approach as opposed to a risk mitigation approach would be something structured more like the charter or like human rights acts, where we identify values that are important, that need to be prioritized and that should not be violated, and, when they are, there's a structure in place to seek accountability and in particular to seek compensation. I think that would be a stepping back from this approach to legislation altogether and a revisiting of what it is we think is crucial as we support the growth of the AI industry in Canada. This bill is structured with a risk mitigation approach. Within that confine, we are stuck with how to identify risks and avoid them as much as possible. I think both of these need to go hand in hand.

I'm not saying we shouldn't have risk mitigation. Risk mitigation already exists in a lot of our laws of general application, like negligence and product liability. Some of these obligations on companies to think ahead to what kinds of harms might materialize already exist. How can we provide greater clarity to companies that want to utilize AI so that they can better identify particular risks that are especially likely to be dangerous and that could arise from the use of artificial intelligence? If we're going to maintain a risk mitigation structure, our recommendations have been that we need to then expand our understanding of the risks that are pertinent and, ideally, also accompany that with government support for companies to better develop equity audits and to have expertise in-house that can aid them.

I would just say that all of this also benefits companies and industries that exist right now in Canada. I mean, there are companies that are going to lose out from recommender algorithms sending you to Amazon instead of to a small business. Those companies are also, I think, probably very concerned about how we structure our AI regulations. What this whole conversation fits with is that we need to step back and think this through from a different lens.

[Viviane LaPointe, Liberal, Sudbury, ON]

Thank you.

[The Chair, Liberal, Joël Lightbound]

Thank you very much, Ms. Lapointe.

Now I should yield the floor to Mr. Perkins, so I would ask him to regain his seat.

[Voices]

Oh, oh!

[The Chair, Liberal, Joël Lightbound]

Mr. Vice-Chair, the floor is yours.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

At least I was still in the room. Thank you, Mr. Chair.

The testimony from all the witnesses, at been pretty much every meeting, has been fascinating. I think the questions from all the members have been amazing in drawing out some really good stuff.

Mr. Sookman, even though we're talking about privacy, I don't want to lose the opportunity to ask you a question or two about AIDA. You spoke a lot about AIDA. I've been thinking a bit about this. Are there some guiding principles that should be included beyond just the classification of the various types of artificial intelligence? Should there be some public policy guiding principles? If so, do you have any thoughts on what they might be?

[Barry Sookman]

Thank you very much, Mr. Perkins.

I think that one of the real failings of AIDA is that there are no guiding principles. The guiding principles are important, because they will influence the regulation and, where there's enforcement, what those principles should be.

I indicated in a previous answer that some of the guiding principles that could be a useful start were in that U.K. private member's bill. The member had given quite good consideration of various factors, which included responsible AI factors, the requirement for transparency and risk mitigation, as well as, from an economic perspective, the need to be sure that regulations are proportionate to benefit versus burden, and also to take into account international competitiveness.

That may not be the be-all and end-all, but the act should.... Assuming this can be somehow salvaged, there are some things that could be done. One of them is guiding principles. I would suggest that bill is worth considering.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

I have one more quick question before I have to move on to another area. If you could, in a brief comment....

You suggested in your remarks that the current drafting of the AIDA bill could impede innovation. Obviously, the British are focused quite a bit on trying to attract and be a centre of artificial intelligence development. Could you expand on that a bit?

[Barry Sookman]

Thank you very much for the question.

Ms. Denham talked about the European approach as being a first mover. In fact, there's starting to be a wisdom that, while they're a first mover, they're no longer the right approach. The concern is very much that not only is it not the right structure, but that it will impede innovation. The U.K. is very much focused on that. The U.S. executive order on AI is very much focused on that. The reality is that Canadians need access to these tools. If there are impediments to that, it could set us back a lot.

You have to recognize as well that if you have complicated regulations that aren't in place in other countries, it requires Canadian entrepreneurs to make investments that don't have to be made in order to compete in foreign markets. A lot of these companies are small companies. They don't have the resources to sit down with lawyers and figure out how to comply with something that is really difficult. We need to empower them. We need to be sure they're responsible with voluntary codes and to deal with the very high-risk stuff in a thoughtful way.

However, we have to be sure we don't make a mistake in bogging down entrepreneurs and have them move, as they've done in other areas, to the United States where they can start businesses. Then we would lose the income and the people.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

Thank you very much.

Mr. Chair, on Friday, I gave notice of a motion that I would like to table now. I'll read it into the record:

That given the clerk has invited Annette Verschuren twice to appear before the committee to discuss her conflict of interest at Sustainable Development Technology Canada (SDTC), and that the witness has twice failed to provide a date of availability, the committee therefore summons Annette Verschuren to appear before the committee in-person for a period not less than one hour, no later than November 30, 2023.

Further, that committee request Sustainable Development Technology Canada (SDTC) to provide any declarations of a conflict of interest from board members since 2015.

I have a brief explanation. I understand that Ms. Verschuren is leaving the country on Friday. We've given her lots of chances to appear. We have a space that she knows is available to her on Thursday. She has the ability to appear on Thursday. I don't think we're going to get her to appear, so I would recommend that we summons her.

Thank you.

[The Chair, Liberal, Joël Lightbound]

Thank you, Mr. Perkins.

I recognize Mr. Turnbull.

[Ryan Turnbull, Liberal, Whitby, ON]

Thanks, Chair.

I wanted to speak to this because my understanding is that the original motion we agreed to—and I don't want to read it to members, because I'm sure you all have a copy of it—specifically indicates that this committee would take the testimony of witnesses who have appeared or testified before other committees. It was explicitly part of the conversation we had that Annette Verschuren, who is the former chair of the board at SDTC, had already appeared before the ethics committee. I'm not sure why Ms. Verschuren was actually invited to this committee, given the fact that we said we would take that testimony as our own so as to avoid duplication at this committee.

I would also direct people's attention to the fact that the motion also said, “the committee reserves the right to re-invite said witnesses as necessary”. However, my understanding is that no case has been made before this committee as to why that would be necessary.

I have Ms. Verschuren's testimony here before the ethics committee, which I've reviewed, and it seems quite substantive. I'm abiding by the original conversation and agreement we had in passing that motion. I don't understand why we would need to summons a witness—no one has made a case for why we need to reinvite her to this committee—when we all agreed we'd have her testimony as a part of this study at this committee.

Those are my thoughts. I'm not inclined to support a summons at this time.

[The Chair, Liberal, Joël Lightbound]

Thank you, Mr. Turnbull.

I'll recognize Mr. Masse, and then I have Mr. Perkins.

[Brian Masse, NDP, Windsor West, ON]

Thank you. I'll be really quick.

I apologize to our witnesses, but we have to deal with some important business here.

I was in one of the meetings for ethics and a lot has changed since then. What I'm concerned about is that, if this individual is leaving the country.... I've had further contact from a whistle-blower since that time, so a lot of things have moved on. I think there's also been a process put in place for the workers, but it seems there are some issues with that.

For all those reasons, I'll support the motion if necessary. Nobody likes to have to do this, but if we have a witness who's going to leave the country, I don't know what else we do.

[The Chair, Liberal, Joël Lightbound]

As a point of information for committee members, I've been informed by the clerk that the witness in question has mentioned she would be available to appear on the 12th before this committee. That's something to keep in mind as you decide on this motion.

Mr. Perkins.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

Thank you.

The 12th is a little late on this, as it was put in as an emergency meeting.

To address MP Turnbull's point—it's a legitimate question—there are a lot of other areas that you will find out about later today and in subsequent meetings. As the current chair—she is the chair until December 1 as it is a Governor in Council appointment—she has a responsibility to answer for much broader lines of questioning than the narrow ones that were asked of her in the ethics committee meeting.

There is a lot more information that's come to light. Perhaps the government isn't aware of it. That wouldn't surprise me. However, there are a lot of other areas.... I won't be duplicating what was raised in the ethics committee with Ms. Verschuren. It's a whole new line of questioning.

[The Chair, Liberal, Joël Lightbound]

I have Monsieur Lemire.

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

Mr. Chair, are you or Madam Clerk confirming that Ms. Verschuren will be appearing before the committee on December 12?

We therefore don't need to summon her by adopting a motion, particularly since—

[The Chair, Liberal, Joël Lightbound]

She informed the clerk that she would be available on December 12. However, as to whether she will be here—

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

I'll keep thinking. I'm sorry, Mr. Chair.

[The Chair, Liberal, Joël Lightbound]

I have Mr. Turnbull and then Mr. Perkins.

I'll also highlight that Mr. Turnbull has pointed out quite clearly that, in the original motion on this emergency study on SDTC, it wasn't necessarily clear which witnesses were to be invited. It's up to the committee to decide if it's necessary, as Mr. Turnbull has pointed out.

I'll yield the floor to you.