Mooters addressed how artificial intelligence impacts privacy rights and administrative decision-making
On Thursday, October 5, this year’s Grand Mooters took to the podium in the Moot Court Room to make their submissions on legal issues around new artificial intelligence (AI) technologies. This year’s problem was twofold: Mooters addressed if AI used to proctor at-home exams violated the Charter’s Section 8 protections against unreasonable search and seizure, and they addressed if a decision, in part informed by an AI decision-maker, to expel a student for cheating violated the principles of procedural fairness.
Olivia O’Connor (3L) and Julia Cappellacci (3L) represented the appellant, a student who was accused of cheating and subsequently expelled from the fictional Flavelle College ( College). Emma Danaher (3L) and Ryan Reid (3L) represented the respondent, the College. The justices on the bench were the Honourable Justice Nicholas Kasirer from the Supreme Court of Canada, the Honourable Justice Jill Copeland from the Court of Appeal for Ontario, and the Honourable Justice Andrew Pinto from the Ontario Superior Court of Justice.
Over 100 people attended the Grand Moot in person, with more audience members watching the livestream.
The Grand Moot opened with a speech from Dean Brunnée, who remarked that the Grand Moot is the “highlight of the academic year.” She thanked the many parties involved in organizing and preparing for the Grand Moot: event sponsor McCarthy Tétrault LLP; the Moot Court Committee Co-Chief Justices, Ben Grondin (3L) and Sanghyun Park (3L); and the various Faculty members who helped prepare for the Grand Moot.
Grondin and Park summarized this year’s problem as one that explored the “emerging relationship between AI and the law by asking two questions: how does the use of AI affect our privacy interests, and how does the use of AI as a decision-making tool affect the fairness of institutions?”
This problem was “the right combination of novel, challenging, and fun,” said Reid. “Without the benefit of a lot of jurisprudence on artificial intelligence, I thought it was a great opportunity to test out interesting arguments and really think about how technology impacts more established legal principles. More than one judge said that they would not be surprised to see similar issues in their courtrooms in the next few years.”
The appellants started by submitting that the AI proctoring software violated Section 8 Charter protections against unreasonable search and seizure and were not saved by Section 1 justification. O’Connor faced questions from Justice Pinto about the difference between the indignity that students endure when writing supervised exams in-person and the surveillance of the AI proctoring software. She distinguished the AI proctor from human proctors to illustrate how the AI violated the privacy interests of students writing exams at home in ways that humans proctoring students on-campus did not.
Cappellacci then submitted that the decision to expel the student was procedurally unfair and substantively unreasonable. She drew on the landmark administrative law case Baker v. Canada (Minister of Citizenship and Immigration) to examine the process behind the College’s decision and the reasons provided. She drew a fine distinction between a human decision-maker following an AI decision and a human decision-maker making a decision supported by an AI’s report, concluding that the decision to expel the student could not stand.
The bench then turned to the respondents for their submissions. The respondents submitted that the proctoring software did not breach Section 8 of the Charter, and if it did, the breach was justified under Section 1. After asking Danaher some questions about the respondents’ Section 8 arguments, Justice Pinto said that the panel thought Section 8 was violated and asked the respondents to focus on the Section 1 analysis. Danaher argued that there was an important public interest in knowing that the College produced qualified students who did not cheat, as the justices asked questions about the respondent’s arguments relating to the proportionality step of the Section 1 analysis.
Finally, Reid submitted that the process of expelling the student was procedurally fair and that the reasons for the decision to expel, written by the dean of the College, did not have any fatal flaws. He pointed to the various opportunities that the student had to make submissions to explain his suspect behaviour before his expulsion. Applying Canada (Minister of Citizenship and Immigration) v. Vavilov, Reid argued that the reasons had to be read as a whole, pointing to specific parts of the written reasons to show that the dean considered the AI’s recommendation as required by statute, without being unduly influenced by the recommendation.
After these riveting oral arguments, the audience gave the mooters a standing ovation as the justices left the room for deliberation.
The justices were all smiles as they gave comments on the mooters’ performance. As the Grand Moot is a showcase, not a competition, there were no winners, and the justices all lauded the mooters for their excellent work.
Justice Pinto complimented the mooters for their “substantive responses to the material” and their “genuine communication with the bench.” He also enjoyed the “effective use of humour and real-life situations” that kept the justices engaged with the arguments and showed off the mooters’ mastery of the material.
Justice Copeland, who participated in the Grand Moot herself in 1991, complimented the mooters’ written submissions. Noting that written advocacy did not always get talked about much in mooting, she said both the appellant’s factum and the respondent’s factum were “of the highest caliber.”
“I recognize as a McGill grad that the Grand Moot is a major glamour moment for law students in Canada,” said Justice Kasirer. He praised the “superb advocacy on everyone’s account,” concluding that the mooters were “all naturals who did U of T proud tonight.”
After the moot, the audience was invited to join a reception in the Rowell Room and the Fireplace Lounge to celebrate the great work of the mooters. Attendees had the opportunity to mingle over light refreshments and chat about the excellent oral advocacy they had just witnessed.
“It is through this event that I realized that law school is not just about textbooks and exams,” commented Ziyan Huang (1L). This was his first time watching the Grand Moot. “The competition showcased the practical application of the knowledge we acquire during lectures.” He added, “Seeing my senior fellow students debate with confidence on complex legal issues was truly inspiring.”
The many 1Ls in the audience did not go unnoticed by the Grand Mooters. O’Connor said, “It was very meaningful to participate in a tradition that generates so much interest and excitement at the Faculty, especially among first-year students. I hope that all the 1Ls who came out to watch will take advantage of the mooting opportunities we have here at U of T, and I look forward to watching some of them in the Grand Moot in the coming years!”
