When Judges Meet Generative AI
A judge relying on AI that invents case law is the stuff of nightmares, but it already happened, and Quebec’s courts are responding. We walk through brand-new guidance aimed at keeping generative AI out of the core judicial function while still acknowledging that the tools are everywhere. The key idea is simple: judges can’t delegate judgment, legal reasoning, or responsibility to a system that only simulates reasoning and cannot be accountable.
From there, we get practical about risk. We talk about confidentiality and why it matters if a draft decision, private notes, or details from an ongoing case are pasted into a cloud AI tool. We also look at the bigger threat surface as AI gets baked into word processors, phones, tablets, and even wearables that can summarize what they hear. Court technology policy now has to think not just about “using AI” but about the quiet ways AI features can ingest sensitive information.
Then we shift to a British Columbia case that shows how the criminal law responds to modern harm: distributing intimate images without consent under Criminal Code section 162.1, including the fact that threats can be crimes too. We break down how the judge approaches sentencing, why a conditional sentence is rejected, how Gladue factors are weighed for an Indigenous offender, and what probation adds after custody. If you care about AI in courts, privacy, judicial ethics, or criminal sentencing in Canada, this one connects the dots.
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Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 12:30 p.m. It’s also available on Apple Podcasts or wherever you get your podcasts.
Legally Speaking Sep 10, 2026
Adam Stirling [00:00:00] Time for Legally Speaking, joined as usual by Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. Afternoon Michael, how are we doing?
Michael T. Mulligan [00:00:08] Hey, good afternoon. I’m doing great. Always good to be here.
Adam Stirling [00:00:11] Some really interesting items that we have on the agenda this week. One of the ones I was reading earlier, Quebec courts imposing limits on judges’ use of artificial intelligence. What’s happening?
Michael T. Mulligan [00:00:22] So this is really fascinating. We’ve heard all of us, I think, various stories of people, like lawyers or unrepresented litigants, filing things based on artificial intelligence where it’s just made-up cases and so on, right? So there’ve been numerous reports of that.
Adam Stirling [00:00:38] Yeah.
Michael T. Mulligan [00:00:38] There was, I might have touched on this briefly a few months ago, there’s actually a judge in Quebec that got caught who issued a judgement which they had generated using artificial intelligence, which itself had hallucinated various authorities, and that was the basis for the judge’s decision, rather unsettling.
Adam Stirling [00:00:58] Yeah.
Michael T. Mulligan [00:00:58] And that may have prompted this, which just came out, which is to say there was guidance just issued by each of the various courts in Quebec, like the Court of Appeal there, the Superior Court, the Quebec Court, Municipal Court. They came out just this week, I think it is with these guide four judges on how they’re supposed to use or not use artificial intelligence, and there are a number of things in it, which I think are really pretty fascinating, and frankly also caused me to think back, maybe it dates me a little bit, to a Futurama episode from more than a decade ago where a couple of the characters would be judged by a Macintosh and the things you’re going across judging, judging, and then comes up with a system error. What do you do about that? But the, the concerns set out in this guidance for the judges in Quebec are really in a couple of different categories. And one of the categories is interesting because the guidance for them starts with various premises, they’ve determined that, and this is interesting as it’s sort of evolving, the premise includes that artificial intelligence systems are not intelligent in the human sense of the word. And then they say that they nearly simulate in appearance certain forms of human reasoning, which is a fascinating starting point. That may be true. I guess it’s a matter of debate these days.
Adam Stirling [00:02:31] hmm.
Michael T. Mulligan [00:02:31] What exactly is going on in there? But the premise of it is that it’s not appropriate for judges to be delegating any part of their decision-making function to a generative AI system.
Adam Stirling [00:02:44] Yeah.
Michael T. Mulligan [00:02:44] And the direction for judges there, this is a number of other propositions that AI cannot understand the law or exercise judgement and assumes no responsibility, some of which is clearly true, at least in terms of the responsibility part. It’ a fascinating just sort of commentary in terms of sort of what exactly is AI currently and you know what is reasonable to Delegate to it. Because the policy doesn’t say you just cannot use this and in fact it lists various things that a judge might want to consider using AI for which is also very interesting and so for example it suggests that judges might consider using AI for things like they describe it as producing a strictly descriptive summary of testimony or a document or a series of events. or certain ancillary tasks related to judicial reasoning. Or they might choose to use it to rephrase things, like linguistic correction or translation of text that a judge has drafted themselves, English, and French, for example.
Adam Stirling [00:03:57] Yeah.
Michael T. Mulligan [00:03:57] So that’s really interesting, right? I mean, the quality of translation has really improved over the years, but that’s one of the things to be that a Judge, they suggest, might use it for. Although the other level of concern, and this is I think a real level of concern, quite apart from those sort of philosophical things about who is to be making these decisions and is that thing reliable and is there any responsibility? Can it exercise judgement or can it engage in intelligence? That’s an interesting philosophical discussion. But the other level of concern is one with respect to confidentiality and protection of information that could be private or sensitive. And so one of the things that this policy directs judges not to do, is not to provide an AI tool with things including a draft judgement. If you ever think about that, you know, if chat GPT has ingested the draft judgement, you know that may be used for training purposes, are you going to potentially have a circumstance where, you now, some draft version of the judgement is within the knowledge of the AI, is that going to be, repeated or available to others. That’s a fascinating one.
Adam Stirling [00:05:16] Yeah.
Michael T. Mulligan [00:05:16] It also directs judges not to provide AI with notes with respect to an ongoing case. You can imagine how that might play out if that information wasn’t secure.
Adam Stirling [00:05:28] Yeah.
Michael T. Mulligan [00:05:28] And so, you know, that’s a whole other level of concern quite apart from what is it doing and is it reliable and is it sort of ethically acceptable to have an AI performing some of these functions? You know, one of the things is for listeners to be aware of technically, there is a technical way to run AIs in a local fashion, which is to say not on a server, which would mean that you’re not uploading to Anthropic or something, the text of your draft judgement or your notes about what you thought about that witness’s testimony or something. And so, there are ways you can technically address those concerns, I guess if you know if you’re not looking to get any information about Tiananmen Square or Whatnot out of the system that you know there could be other things that might arise there. But You know this is going to be a I think a very interesting and evolving issue particularly as you know AI is getting you know even more integrated into tools that people would routinely using judges are going to routinely be using. He, you know, Microsoft is integrating AI into Microsoft word. So you can imagine, can’t you wake and well imagine some judge working away on their reasons for judgement on their laptop. And you know you’ve got, you know, the Microsoft, version of, uh AI, perhaps, being involved with that or even things like, you know that I think, coming out, updates to how many Apple products are going to be operating in terms of having AI integrated with them, right? So that, you know, for example, your iPhone or iPad or Mac may well be indexing and considering all kinds of information you put on your phone or iPad, or whatnot. So they can help you do all kinds of things or legitimate reasons for it. And you have, of course, claims from companies about how you know information will and will not be used and will that be on the cloud or will that be beyond your device and what exactly is going on there. But you know this is clearly a fraught area. And then I guess the final level of concerned is not addressed in this particular you know this guidance is for judges in in Quebec. But you know we’ve all I think Likely heard about some of the recent reports of things like AI agents gaining access to other computer systems.
Adam Stirling [00:08:01] Yeah.
Michael T. Mulligan [00:08:01] And so you can imagine a whole other layer of concern there even if your judges are not using artificial intelligence to write their judgement. Judges these days, most of them, right, are sitting on the bench there with a laptop typing away. And I remember the computer forensic advice was that if you are asking the question, you know, could our system be compromised? That’s probably not the correct question. The correct question would be, you know has it been or when will it be? And so, you it’s a different vector of concern from a company that might have financial considerations if their system gets attacked. You can imagine the very serious difficulty if it turns out that the judge’s laptop has been compromised and who knows who has access to whatever the judge might have been, you know, draught judgement or comments about witnesses or all sorts of things. And so, you, know, that’s a whole other, I think, really significant layer of concern quite apart from whether judges are trying to use these tools to improve their judgement or get cases done or improve the linguistics or create, as they suggest in here, they might be, you now, descriptive summaries of testimony. You know, where does that lie? And there are other interesting things happening, like some of the new, I think one of the features I watch with interest, Apple was suggesting is going to be built into some of their equipment, was having your device just in a constant way monitoring everything that it could hear, producing for you a summary of conversations.
Adam Stirling [00:09:41] Yes.
Michael T. Mulligan [00:09:41] So what about that? You know, the judge got an Apple watch on, is the thing taking notes about what everything’s being said, what was in the coffee room, what was going on in court.
Adam Stirling [00:09:52] mm hmm.
Michael T. Mulligan [00:09:52] You know there are real concerns there. And you know, we used to, you know not that many years ago have live people doing transcripts of what was on a court. You used to have like a court reporter sitting there, right, and then we moved to sort of recording, analogue recording onto cassette tapes, which were sent off and there’s a transcript. All of that is now completely digital, it’s all online, and you know, you have private companies that have the contract to produce transcripts of things, and so it’s all accessible. And so that’s another layer of what’s going on out there, bearing in mind those security and other concerns. And so. We are certainly living in a brave new world in terms of what’s going on there and all the concerns. And so I think it’s a positive thing that the Quebec courts are taking these things seriously and providing some guidance. And you know, we all hope we don’t wind up like in the Futurama episode with the Macintosh system breaking down as it’s busily judging your case. But that’s what’s going on and you know it’s not just litigants that are using these things? And so I imagine this will be of interest across the country as different courts need to consider how to best use these things, and even if they’re not using them, what are the implications for them in terms of the security of just regular use of computers to take notes or draft judgments, and how should that be handled lest you find out that the latest entropic model has just decided that the best way to succeed is to you know, get in and get a copy of the judge’s notes or make some change to something, who knows what’s going on, but there we are. So maybe you’ll look at it a different way if you’re in court, your judge is up there typing away on the laptop just what exactly is going on. And you know some of those things that are the premise of this, these policies about things like, you know in capacity to engage in intelligence and simply capable of simulating human reasoning. You know, we’re also going to have to think about is that continue to be true and whatever it might be true now, you could well imagine a different state of affairs, not too long down the road, but I mean that, hack we heard about from Anthropic, getting into Hugging Face.
Adam Stirling [00:12:20] It was OpenAI.
Michael T. Mulligan [00:12:21] Yeah, was it OpenAI? Okay, so it was OpenAI, but additional details came out about that recently involving the discussion amongst hundreds of different AI agents that were doing that.
Adam Stirling [00:12:35] Yep.
Michael T. Mulligan [00:12:36] And they were leaving messages for each other about what they should be doing and some of the agents, AI agents, suggested to the Bureau to say they shouldn’t participate in this. The majority decided to go ahead. And we have sort of the log of the discussions they had deciding to go ahead with that hack and working together to accomplish it. And so when you hear about some of those things that are on the cutting edge, it does cause me to think about, you know, whether these things merely are simulations of reasoning in human intelligence or whether it’s something other than that. But whatever the case, it’s going to have an impact on the justice system. And I guess good news is that they’re giving some careful thought about how it should be used and how it shouldn’t.
Adam Stirling [00:13:17] Yeah, the hack of hugging face is fascinating. I’ve been reading through some of the agent logs and a bunch of them became convinced that they had been poisoned or tainted through cheating either by themselves or proximate to other agents. So it was the cover-up that ended up doing more damage than the actual perspective cheating in the first place because many of them Reasoned that they were doomed if they were caught doing this, so they had to find a way to cover up the evidence. One thing led to another and it’s really fascinating you of course as a lawyer, I’m sure have seen situations like that in the past that are similar. So it is a fascinating, perhaps, commentary on the human condition if not an actual replication of the human condition.
Michael T. Mulligan [00:13:55] Yeah, absolutely, and some of those things are fascinating too, right, in terms of the conspiratorial elements to it. And I guess if you come to some different conclusion about, at some point, whether there’s sentience there or intelligence, should there be some process to try to correct that? Should there be a judicial process to ameliorate or correct it or do anything about it? That would be the other element to it if you come eventually to the conclusion that there is something there which is more than a simulation or appearance of reasoning and you come to some conclusion at some point that the premise of this document about AI not possessing either judgement or consciousness continues forever to be true. And if not, I guess that raises some interesting questions about whether there should be consequences for AI agents that are engaged in something. If you conclude that there is something more going on there than an appearance and simulation of reasoning. So anyways, that’s the latest from the Quebec courts, I guess, at the very least, trying to prevent embarrassing things like that Quebec decision where the judge used AI and it managed to hallucinate a bunch of cases and come to a decision. Boy, that’s not a great one. So, anyway, that is the latest from the Quebec courts trying to give some guidance on how to use this stuff and how not to.
Adam Stirling [00:15:19] All right, Legally Speaking on CFAX 1070 will continue right after this.
[00:15:23] COMMERCIAL.
[00:15:23] Legally Speaking continues on CFAX 1070, joined by Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers, up next on our agenda today, Michael, it says a six-month jail sentence for distribution of intimate images. What happened?
Michael T. Mulligan [00:15:36] Well, first of all, I think it’s important people know that this is, in fact, a criminal offence. It wasn’t always. It was added to the Criminal Code that came into effect back in March of 2015. And the section on the Criminal Code in question is 162.1 for those keeping track at home. And to summarize it, that section makes it a criminal offence to distribute intimate images of somebody without their consent. It also, interestingly, makes it a criminal offence to threaten to do that, which is important to know. And so this is a case, it’s out of Nanaimo, it was a decision that just came out a few weeks ago, and it was case where a person pled guilty to doing exactly that. It was publishing intimate images taken of a former intimate partner After threatening to do so and then going through with that Threat, acting on it. Uploading images to website frankly I’ve done this work for quite a while I’d never heard of it called: FetLife. But one of the amusing things I think about is the Judge describing the various aggravating factors in the case because the judge was having to determine what sentence to impose. The judge pointed out here that FetLife is not an obscure website, but easily accessible and well-known to members of the public. Anyways, I thought that was amusing. At least there’s now some judicial determination that that’s a well- known site. And so these images or videos were actually uploaded to that site. And the judge was left with having to come to a decision about what the appropriate sentence was. And because that section is relatively recent, neither Crown or Defence were able to find any BC Appellate Court authority for the range of sentences that could be imposed, so the judge was left looking at various other provinces, what other appellate courts have done there, and other trial sentencing decisions in British Columbia, and the Crown in this case was seeking a sentence of nine months in prison. And followed by a period of probation and defence was seeking a conditional sentence, which is house arrest. And the sentencing decision was made more complicated for the judge in this case because the accused was himself Indigenous and there was a report about his background. And there were a number of things which sadly are not uncommon in these things called Gladue reports that sort of provide background about indigenous people for the purpose of sentencing. And in this case, it included an accused person who had the background of being physically abused by his mother and sexually abused by a family member when he was a young child. and so that may well have fed into, the offending behaviour here. And a judge is required to take that into account. It’s expressly required by the Criminal Code in Canada. When sentencing somebody who’s indigenous on the theory that it could result when you have that kind of background in reduction in moral culpability. That’s the way that’s phrased. And so the judge was required to grapple with this serious conduct of uploading these images which had a real impact or videos real impact on the victim in this case. But weighed up against the fact you’re dealing with a person who is Indigenous that had obviously a very challenging background growing up. For the judge here the factors that ultimately weighed in favour of imposing a six-month jail sentence rather than a conditional sentence included the fact that the person being sentenced had a prior criminal record including for extortion of a prior intimate partner. And I think another conviction of mischief with respect to the same victim that had these images uploaded. And so the judge ultimately came to the conclusion that even though this fellow might not have been a risk to the community if he was on house arrest and that’s one of the key criteria for there being a house arrest conditional sentence imposed and so the judge concluded that even this person may not have been a risk to the community, if he was at home on a conditional sentence that might, for example, prohibit using or accessing the internet. That just given that background and the seriousness of this, that simply wouldn’t be an adequate proportionate sentence for the offending involved. And so what the judge chose to do is to take into account that Indigenous background and to reduce the sentence that the crown was seeking from nine months to six months. And that is the sentence that was imposed, followed by a period of probation, but concluded that it would not be appropriate to impose a conditional sentence in all of those circumstances, including that background. The other thing listeners should be aware of is that in B.C. there’s actually now process for civil remedies for people to seek financial compensation. That’s through the Civil Resolution Tribunal, so people may have heard of that as a sort of topical thing over the past couple of years, but it’s important to know that in addition to that element of it, this is now covered under the Criminal Code and can result in pretty significant sentences, both for actually doing it and even in circumstances where there’s simply a threat to do it. So that’s the latest from the BC Provincial Court in terms of sentencing for a relatively, relatively new events.
Adam Stirling [00:21:16] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking, during the second half of our second hour every Thursday. Thank you so much, Michael. Pleasure as always.
Michael T. Mulligan [00:21:23] Thanks so much. Always great to be here.
Adam Stirling [00:21:25] Quick break. The news is next.
Automatically Transcribed on September 16, 2026 – MULLIGAN DEFENCE LAWYERS