Forty-three years of the Charter: A living promise in the age of algorithms
As Canadians mark Law Day on April 17, it’s important to reflect on the document’s legacy and the new challenges it faces
Canada's Charter of Rights and Freedoms was born of hard-won compromise. Now it must face a challenge its drafters could not have imagined — the rise of artificial intelligence in the halls of justice.
On April 17, 1982, Queen Elizabeth II and Prime Minister Pierre Elliott Trudeau signed the Constitution Act on Parliament Hill, which included the Charter. The result of years of difficult negotiations, it guaranteed every person in Canada certain fundamental freedoms, including democratic, mobility and equality rights, that no subsequent government could easily alter or remove.
The push for entrenched rights was shaped by a growing public concern about inequality and a desire to strengthen Canadian unity. For many, the Charter represented a promise that individuals would no longer be subject to the shifting tides of political will, but instead be protected by these basic principles. Its “living tree” doctrine, which views it as a document capable of growth and adaptation, was intended to ensure these protections would endure and evolve for future generations.
The drafters of the Charter prioritized criminal procedure and democratic freedoms. Civil litigation, including personal injury law, was clearly not the main focus. However, the equality rights set out in section 15 have underpinned challenges to legislative caps on damages, particularly those affecting vulnerable, seriously disabled plaintiffs, the elderly, and low-income earners, whose suffering may not be fairly compensated with limited monetary awards.
Forty-three years after it came into force, the Charter remains central to Canadian law. It is frequently applied, debated and tested, and sometimes challenged. As Canadians mark Law Day this year, it is important to reflect both on its legacy and the new challenges it faces. Among them is the rapid evolution of artificial intelligence in legal practice and the justice system.
This technology is already transforming the practice of law, helping lawyers quickly find legal authorities, automate document review, and formulate arguments, saving considerable time while achieving greater accuracy and completeness. For example, AI-assisted tools can analyze thousands of pages of medical records quickly, identifying diagnoses, flagging inconsistencies and building injury timelines far faster than a lawyer could. These technologies are changing how law is researched, argued, and decided.
AI-powered legal assistance also has the potential to improve access to justice, an ever-increasing concern, by narrowing the gap between those who can afford legal representation and those who cannot. Efficiency gains allow lawyers to focus on judgment, advocacy, and the essential human aspects of legal practice, while reducing the number of billable hours required for a task.
However, these benefits come with significant challenges directly linked to Charter rights. AI hallucinations pose new threats to the concept of “truth” in courtrooms. Artificial intelligence can create deepfakes — highly realistic but entirely fabricated images and videos. If false images are admitted as evidence, they risk undermining the reputation and integrity of the justice system. Moreover, AI algorithms used in risk assessment or sentencing may unintentionally reflect systemic biases, raising concerns about fairness and equality — the very rights the Charter guarantees.
None of this is to suggest that AI should be banned. As mentioned, the benefits are significant, and the Charter was always intended to evolve with the times by instilling values in future governments to guide their actions and decision-making. When it comes to artificial intelligence, these values require transparency and accountability. Robust oversight, clear standards for admissibility, and independent review mechanisms will be essential to ensure that AI strengthens our commitment to justice, given its potential to undermine it.
On a cold April morning in 1982, a document was signed that promised Canadians their rights would endure. Honouring that promise today means applying it to challenges its authors could never have imagined. The Charter is a “living tree,” capable of growth and adaptation. The challenge for us all is to nurture it wisely so that it continues to protect our generation and those to come.
