‘If you're going to be using AI, we want to know’

In 2023, amid concerns about the use of artificial intelligence in legal submissions, the Federal Court of Canada issued a notice saying it would not use automated decision-making AI tools when making judgments and offered guidelines on the use of AI for members of the Court and its law clerks.

It turns out hardly anyone seems to have read them.

In the second episode of the CBA’s podcast Modern Law: Verdicts and Voices, Federal Court Chief Justice Paul Crampton tells host Alison Crawford that out of almost 28,000 legal filings the court received in 2024, “only three or four” declared the use of AI in making them.

“Clearly, either people are not using AI when drafting their legal submissions, or they're not aware, or they're intentionally disregarding our practice direction, which obviously would be a problem.”

He says it creates an issue of public confidence, citing the words of U.S. Supreme Court Chief Justice John Roberts, who has expressed concerns about judges using AI to draft decisions.

“He kind of put it very succinctly, which is that people trust humans to make decisions more than machines,” says Crampton.

“If you're going to be using AI, we want to know, and the other party should know.”

That’s particularly true if the technology is being used to generate new content. Other parties may look at each citation and everything that’s been said with much greater care “instead of just assuming that if a lawyer cites the case, that the case exists and says what it says.” He notes there have been several incidents in the U.S. and Canada when AI invented legal citations in a brief submitted by lawyers.

A lack of transparency around AI usage is not the only current challenge. Crampton says the Federal Court of Canada is facing an “extraordinary surge” in its workload with already overstretched resources. He’s described the worsening budget shortfall as a “crisis.”

In recent years, immigration filings at the Court increased from 13,500 annually to 16,700. In 2024, that number skyrocketed to more than 24,000.

As bad as things are now, Crampton expects them to get worse. While agencies like the Canada Border Services Agency and Immigration, Refugees and Citizenship Canada (IRCC) received more money in the latest federal budget to address immigration issues, the Court did not.

“We're going to be getting all those additional cases but didn’t get any more money, so we are in a situation of deficit,” he says.

That means significant changes in how the Court functions could be on the horizon.

Tighter purse strings mean temporary court staff may have to be let go, and the Court may have to sit “one or two days less per week,” further exacerbating the case backlog.  

“It really is quite an extraordinary situation,” Crampton says.

Several changes may need to be made in how the maxed-out Court handles cases to work through the backlog, including encouraging judges to write shorter decisions, switching to oral decisions, and decreasing what people must prepare for more straightforward legal submissions.

“We're trying to rebalance the judges’ workload so they can do more each day, each week.”

Also in this latest episode, hear more about the anxieties surrounding IRCC’s use of AI software for case decision-making; learn about the recent Supreme Court hearing into the proposed new tort of family violence; and revisit the historic case of R v. Drybones, the first matter the Supreme Court decided under the 1960 Canadian Bill of Rights.