New policing technology may worsen inequality

Good discussion of the risks involved, although not convinced that a judicial enquiry is the best way to address the many policy issues involved:

The Canadian Charter of Rights and Freedoms guarantees the right to equal protection under the law. It is a beautiful thing and a hallmark of a free democracy. Unfortunately, the freedom to live without discrimination remains an unrealized dream for many in Canada. Worsening this problem, the growing use of algorithmic policing technology in Canada poses a fast-approaching threat to equality rights that our justice system is ill-equipped to confront.

Systemic bias in Canada’s criminal justice system is so notorious that Canadian courts no longer require proof of its existence. Indigenous and Black communities are among the worst affected. The critical question is: what can be done? The right to equality under section 15 of Canada’s Charter, a largely forgotten right in the justice system, should serve to remind governments and law enforcement services that bold change is not merely an option. It is a constitutional imperative.

Most often, courts respond to discrimination in the justice system by granting remedies such as compensation, or exclusion of evidence from court proceedings. But these case-specific remedies seem to operate as pyrrhic victories, while systemic change remains elusive. A case-by-case approach to remedying rights violations is also costly for the public and burdensome to the very individuals wronged.

Making matters worse, Canadian police services are beginning to explore the use of algorithmic technologies that may exacerbate systemic discrimination.

As described in a recent report jointly published by the University of Toronto’s Citizen Lab and International Human Rights Program (co-authored by myself), the widespread use of algorithmic policing technology would be deeply problematic. Predictive policing technology is used to attempt to forecast individuals or locations that are most likely to be involved in crimes that have not yet occurred (and may well never occur). Data sets (including data sets created by police) are fed into algorithms that are then supposed to produce “predictions” through machine-learning methods.

Given the continuing over-representation of Black and Indigenous individuals in policing data caused by over-policing and discrimination in the justice system, using such data to forecast potential crime risks perpetuating or amplifying existing inequality. As scholar Virginia Eubanks describes, policing algorithms can operate as “feedback loops of injustice.”

In the report, we call for moratoriums on these controversial technologies, and urge Ottawa to convene a judicial inquiry on the legality of repurposing police data for use in algorithms. Section 15 may well prohibit police decision-making that is guided by algorithmic predictions that are rooted in biased data.

A judicial inquiry is important because section 15 is under-utilized and rarely applied in Canadian courts. Its scope is not well understood. There are substantial costs and legal hurdles that must be overcome to bring a discrimination claim in court. Despite some recent signs of hope, in-court litigation is slow and has not ended the cyclical harm experienced by vulnerable groups.

In theory, the public does not need to wait for courts to painstakingly deliberate these problems over decades. Section 15 prohibits all government action taken in the criminal law enforcement system that has the adverse effect of disproportionately disadvantaging racialized and Indigenous communities (or other groups protected by section 15). The constitutional prohibition operates automatically and is in effect right now.

Section 15 also requires governments and police services to move beyond circular debates as to whether the justice system’s damage is caused by overt racism, historic racism, institutional bias, poverty, or depleted mental health-care systems. It is all of the above. But section 15 prohibits much more than overt racism. It prohibits all government activity that has the purpose or effect of disproportionately disadvantaging protected groups.

When the Charter was enacted in 1982, governments were given a three-year grace period to comply with section 15 in particular — a concession granted in recognition of the hard work and substantial legal reform that would be required by governments to fulfil their new obligations. Nearly 40 years later, it is time for the burden of that hard work to be taken up and completed.