Canada, Regulating AI

I guess they didn’t think of that.

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My previous post about the potentiality of a conflict of laws between nation states because of how they might differently regulate or deal with artificial intelligence has an analgous consideration inside of Canada.

A quick primer on the federal and provicial legislative spheres in Canada:

The Constitution Act, 1867 sets out whether the federal government or the provincial legislatures hold the power to legislate over different areas. Section 91 provides that the federal government has the right to legislate over matters relating to peace, order and good government (which is generally not understood to also include a residual powers capability) and a list of 30-or-so items. Section 92 provides the exclusive powers or the provincial legislatures. Unshockingly, since the document was written a few years ago, neither of these lists provide for anything that sounds like the regulation of artificial intelligence.

If the power to legislate in this sphere falls to the federal government, it would likely be under the peace, order and good government power (on the basis that the subject matter is one of national concern). The federal power to regulate trade and commerce (section 91(2)) could be a possibility but this seems unlikely as the AI is not really an industry such as agriculture.

On the provincial side, the power to legislate in respect of property and civil rights (section 92(13)) seems like it is the most likely candidate.

In any case, my take away from this is that it is not crystal clear whether it is the federal government or the provincial legislatures have the authority to legislate over artificial intelligence. We know that challenges to who holds the authority in analagous areas have arisen in the past.

If the power is held by the provinces, the potential for inconsistent regulation across Canada exists. Which would take us back, domestically, to the same concerns that I raised in my last post.

3 thoughts on “I guess they didn’t think of that.”

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