In Praise of in-Person CPDs and (Ongoing) AI Anxiety

The recent CBA national conference for immigration lawyers passed as though COVID is a distant memory. Crowded rooms full of professionals who serve the Canadian immigration system and our diverse mosaic of communities, in some way or another. Past practices of social distancing or meeting remotely have gone the way of the Dodo bird. At this recent conference, I was struck by one of the huge benefits of in-person learning: presenters can be candid and forthcoming, without fear their comments are being recorded. Speakers were able to share their thoughts and opinions freely without potential negative repercussions to them personally… or to their careers.

Based on my back-of-the-napkin calculation, this was my 18th CBA immigration conference. In 2017, I presented on the STCA and in 2019, we hosted the conference in Winnipeg. Immigration is a constantly changing field and these annual conferences allow us to cover important program updates, pilot programs, new requirements as well as to review recent jurisprudence that has shifted or affected various legal tests. Much of the content may be extremely useful, especially for junior lawyers, and I always encourage other practitioners to attend.

“Off The Record” Commentary

From my perspective, the juicy bits of the conference follow comments such as “I may lose my job if I tell you this but…”; or, “these comments are my personal thoughts and I am not speaking on behalf of the government but….”; or, “as long as no one is recording this, let me share this with you…”; or, “I’m about to retire so it won’t matter if this comment comes back to bite me but…”; or, “as long as this is ‘off the record’, let me add…” The commentary & insight that followed was frank and unfiltered. Honestly, that’s when my ears perked up!

I will not disclose the commentary that followed as I want to respect the anonymity of the IRCC Officers, DOJ lawyers or Federal Court judges who made the decision to share their unvarnished insight (I imagine you know who you are). At the same time, I cannot overstate the importance of these comments. Those nuggets make the conference worthwhile. Those are the comments that make the price of getting myself to Montreal and taking me away from my business worthwhile. For example, during one session, the director of a program was describing internal procedures within his department and explained how one applicant may be selected while another applicant may not be. These “behind the curtain” insights into the minutia of what actually happens during the decision-making process is invaluable. As he shared these unpublished procedures, he would occasionally pause and ask, “no one is recording this, right?”

The Liberal government was elected on a platform of being open and transparent. In 2015, Trudeau campaigned on the promise that, “Only Liberals have a plan for real change that will restore trust in our democracy, and ensure an open and transparent government.” To an extent, IRCC Officers and federal employees have followed that promise. I remember when we had these conferences during the Harper Administration, for example, Officers and other decision-makers were extremely reluctant to speak their minds or provide any details beyond those that had been approved in their PPT slides. I even remember a CBA conference where an IRCC (then CIC) Officer simply read the slides and, when faced with questions, would again reread the points verbatim, exactly as written. Ugh. That Administration handled our immigration system quite differently. They focused on long-term, systemic, legislative amendments to push their agenda. Under the pall of that administration, government speakers at those CBA conferences were not able to speak their minds and we were left with many unanswered questions.

I have to give credit to IRCC Minister Miller, the DOJ and to the Court on fostering an office culture where individuals may speak their minds. As I have been reiterating for years, from my perspective, we are on the same side. To an extent, our job is to explain government laws and regulations to our clients so they can understand how the system works. I have sat through many meetings where a client does not believe (or understand) an IRCC Officer or a CBSA Officer and they simply need me to confirm the information to be accurate.

A Healthy Dose of Anxiety

To the second part, you did not misread the title. Indeed, the post is also in praise of ongoing AI anxiety. In my humble opinion, we need a healthy dose of anxiety. This topic, for better or worse, warrants our anxious thoughts. Many have opined on the potential existence threat, if not the looming potential threat to the profession. If your mental health is not affected by the looming era of AIs that seem to have emerging tentacles into every facet of the legal profession, you are either not paying attention, you are much more optimistic than I, or…. send me contact information for your therapist.

I knew the CBA conference would have a strong theme of AI. I did not realize, however, that it would have an omnipresence in every session. During one session on LMIAs, we almost got through the entire session without reference to AI. Then, during the Q&A portion, an attendee raised potential AI tools that may impact LMIA applications. Of course. At this point in the conference, raising the potential concern re AI seemed inevitable.

On the litigation side, the Court released a guide for counsel on the disclosure of AI tools at the end of 2023. Then they released an update to that guide a few weeks ago. I would not be surprised to see yet another iteration of the guide before the end of 2024. Over the conference, we learned that over the past 5 months, the Court has only received one (1) Declaration for AI-Generated Content… and that was by a self-represented litigant. (Full disclosure: this post has been drafted with no AI tools and this author has no inclination, possibly to my detriment, to use any such tools.)

IRCC has been using AI-adjacent (they have refused to call their tools “AI” outright) tools for years, possibly to avoid litigation. My office has successfully overturned many IRCC decisions “processed with the assistance of Chinook 3+”. During the conference, IRCC disclosed that it continues to develop more tools. Interestingly, during one panel that included a senior IRCC Officer, a lawyer at the DOJ and a few private bar immigration lawyers, each one of them, at different points, noted that these AI tools may replace them at some point. They easily acknowledged they are working to develop tools that may put them out of a job. Kudos to Will, Mario and Zeynab for all their work to shed light and explain these tools that seem to be on the horizon. To quote Darth Vader, “the student has become the master.” Only in this case, these AI students may not only replace their creators, but all masters.

Last year, at the 2023 CBA Immigration Law conference, AI was on our radar; however, it was not front and centre. As I recall, a few sessions gave us a warning on what to expect. It was not, however, omnipresent as it was during the 2024 conference. Perhaps, we may want to preemptively rename next year’s CBA Immigration Law conference (which is to be held in Victoria and I am greatly looking forward to going back to the city of my alma mater). Here are my suggestions: 1. A conference for immigration lawyers to learn the tools that will eventually replace them; or, 2. A reunion of immigration lawyers and Officers to reminisce on how we used to be relevant to the application and decision-making process; or, perhaps, we may want to simply ask one of the AI tools what we should name the conference as they seem to be taking over.

Confession

My confession: I used to love new technologies. In law school, I was the go-to guy when it came to solving IT issues. At that time, Queen’s did not have Mac support so I developed procedures for Mac users to use the library printers, for example. Now, many years later, Macs are ubiquitous and these new AI tools shake me to the core. I hear the IRCC Officers who see these tools as a way of quickly dealing with huge backlogs. I hear the DOJ lawyers who describe how AI litigation tools may easily comb through all relevant jurisprudence in a matter of seconds. Work that, if done by flesh and blood lawyers, could take hours and, even then, could not be as comprehensive.

From my humble seat, I see a future where a representative submits AI-generated arguments, raising issues from a decision made by an AI decision-maker on behalf of the government and then, in turn, defended by the DOJ AI litigation tool, to a Court where a Federal Court judge, using an AI assistant, will render a decision. In such a model, does that decision have any value? Ultimately, if the initial IRCC AI decision-maker learns and becomes an expert on all potential issues and considers all relevant jurisprudence, would there be any point to judicial review? If the Court adopts its own AI tools, would the review even be “judicial”? I could see a future where lawyers’ main advantage is to sell access to expensive proprietary AI tools that may give their well-heeled clients a fighting chance to game the IRCC AI decision maker and get a positive decision where a less sophisticated (off-the-shelf) AI tool may fail. If the best tools are released for free, would there be any point to legal representation? Jordan Furlong has been sounding this clarion call for years.

This space, it seems, has almost become dedicated to AI news (as well as my podcast stream). From this post (which was drafted with the assistance of AI). To this post. To AI concerns. To a post that I wrote in 2022. I want to be clear that the focus of this post is not on the pending AI coupe. My main takeaway from the 2024 CBA conference was the benefit of having conferences in person and getting candid, unfiltered remarks from speakers. If they are reading, thank you for your insight and I hope you will continue to share your thoughts at our future meetings.

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