Canadian Lawyer

December/January 2021

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Page 12 of 43 11 basement, checking for people, firearms or other hazards. On the floor behind a couch he found a Tupperware container filled with methamphetamine, as well as a Ziplock bag containing the same. The trial judge accepted that safety was the reason for the search. The majority found the trial judge correctly combined "two warrant- less search doctrines." The "search incident to arrest doctrine" justified the officer entering an adjoining room after the arrest to check for hazards. The "plain view doctrine" justi- fied the officer seizing the methamphetamine, which was "sitting out in the open," said the decision. In Nordheimer's dissent, he said that to use safety as justification for a warrantless search, police must show "objectively verifiable neces- sity," as per R. v. MacDonald, 2014 SCC 3. The majority rejected Stairs' contention that MacDonald's safety search doctrine should apply. MacDonald was "a completely sepa- rate context that is far afield from the circum- stances of this case," the majority said. Nordheimer disagreed with the majority's distinguishing of MacDonald from the case because MacDonald did not involve a search "incident to arrest." At issue in MacDonald was a home entry that occurred when police arrived about a noise complaint and suspected the man who answered the door was holding a gun. But nothing in MacDonald suggests the decision is restricted to pre-arrest searches, said Nordheimer. Stairs was not armed, and police had no basis to believe or suspect there were guns in the home. Police "have a high hurdle to overcome" when justifying safety searches, said Nordheimer. "The majority is advocating to give the police the tools to make policing practical," says Chris Sewrattan of Sewrattan Criminal Lawyers. AI use in U.S. criminal justice reinforced racialized decision-making: Law Commission of Ontario Q&A Former roles: » Director general, policy at Legal Aid Ontario » Director, policy and research at the Ipperwash Inquiry » Manager, policy and eesearch at the Ontario Ministry of the Attorney General » Counsel Ontario Legal Aid Review » Senior researcher, Centre for Public Law and Public Policy at Osgoode Hall Law School » Senior policy advisor at the Ministry of Consumer and Commercial Relations Education: » Master of Laws from New York University, Faculty of Law » Bachelor of Laws from Queen's University, Faculty of Law » Bachelor of Arts from the University of Toronto Aneurin (Nye) Thomas Executive Director LAW COMMISSION OF ONTARIO What would you say are the most interesting or significant findings in the report? One thing people should know is that the use of these algorithmic or AI-based risk assessment tools has been spreading very quickly across the United States. And the origin of them is interesting. They weren't promoted as a law and order tool or as a tool to cut costs. Rather, the systems were promoted as a tool to reduce racism and racialized decision-making in American criminal justice. They were trying to get at what they call subjective decision-making. So, the tools were an attempt to mitigate or lessen racial bias in American criminal justice. What people found once they began to use these tools and the use of them began to expand quite broadly is that there were a lot of problems . . . they didn't anticipate. The problems really fall into two categories. One is data. The second is due process. If these systems are trained on data based upon arrest, sentencing, policing and justice system data, which is itself racialized, the data crystallizes generations of racialized policing, racialized decisions by American courts. And that's the data that was used to train these systems. The second problem that emerged pretty quickly was the due process problem. One example is bail decisions. One of these tools would have made a prediction about whether someone would be a recidivist or not. And if you were up on bail, it's very difficult to challenge that prediction. And that's true in bail, sentencing or several other contexts where these tools can be used. There weren't the appropriate protection procedures in place to allow people to protect their rights and to challenge an appeal and to understand the recommendations that were being made by these algorithmic systems. The report has advice for policymakers on necessary reforms. Could you tell me about that? We have developed a comprehensive framework for the role of governing these systems, having to do with what needs to be disclosed in the system and due process protections that would be necessary, in the event these systems were implemented. We essentially try to learn lessons from United States. We try to avoid the mistakes that were made there. If they are to be introduced, you must meet certain preconditions. Are there areas in criminal law where these tools are already being used in Canada? They're under consideration. Is there anything else you wanted to mention? One of the key lessons is you have to involve more people in the development of these systems. Public participation has proven to be crucial. *answers have been shortened "The majority is advocating to give the police the tools to make policing practical." Chris Sewrattan, Sewrattan Criminal Lawyers

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