“Catch me if you can” - said the self-driving car to the legislator
This article was written by Vera Katkova, 1L.
According to an article written in Forbes Magazine earlier this year, the next decade will be characterized by a growth of autonomous vehicles in the transportation industry. Indeed, “self-driving” features in cars are expected to become as conventional as cruise control, and create an industry worth seven trillion.
In Canada, the province of Ontario has already approved a pilot program that involves testing self-driving cars on public roads. Among the nine participants of this pilot are BlackBerry’s QNX, Magna and Uber. While the pilot project imposes strict conditions on the testing, including the mandatory presence of a driver in the vehicles as well as insurance of at least five million dollars, it does not place limits on where and when the self-driving cars can be tested. Furthermore, the pilot program enables its participants to test “platooning” technology, which involves communication between vehicles with smart technology to allow them to closely follow one another. This technology is anticipated to “save fuel, reduce greenhouse gas emissions and improve road safety”.
The Ontario government has also announced that once conditionally automated vehicles become available on the market in Canada, the public will be able to drive them. These vehicles independently manage most safety-critical driving functions and make certain decisions, but still require the driver to be prepared to take control of the vehicle at all times.
It is clear that automated vehicles and self-driving technology are on the rise and represent a significant new opportunity for both the public and various stakeholders in the industry. Indeed, the current testing and continued development of this technology means that it will soon be ready for mass consumption. The issue is that the law is perpetually playing catch-up.
While efforts to standardize the regulation of this new technology have been made, there are still too many complicated legal questions surrounding automated vehicles. At the forefront is the issue of risk and responsibility. In March 2018, an automated vehicle that Uber was road-testing in Tempe, Arizona killed a pedestrian. The investigation of this incident found that the vehicle required driver intervention for emergency breaking and that the driver failed to take control of the vehicle in time to avoid the accident. Tesla’s Autopilot system has also been involved in multiple accidents. So who is to blame? Are drivers at fault for not taking control of an automated vehicle on the road, or is the manufacturer of the technology to blame for the failure of their product?
These are the types of questions that will increasingly be at issue with the advent of the autonomous vehicle. Answers to these questions will become infinitely more complicated when considering results of studies such as one conducted by the Institute for Transport Studies of the University of Leeds, where it was found that drivers may require up to 40 seconds to regain full control of a vehicle when it is in automation mode because they “are not monitoring the roadway carefully enough to be able to safely take control when needed.” If it is scientifically shown that the focus of drivers decreases with vehicle automation, can we reasonably rely on them to prevent accidents? If not, can we place absolute confidence in technology to account for all road-safety situations and react to them?
The issue of legal responsibility and risk associated with self-driving cars is rapidly becoming a pressing matter requiring legislation. Governments have already allowed self-driving cars to be tested on public roads but have not prescribed legal rules or remedies for risks associated with them. The time is now to actively engage in proactive legislative oversight and lay the legal groundwork for the regulation of automated vehicles. Legal professionals must come together to support legislators in overcoming the challenges associated with automated vehicles and ensuring public safety on the roads.
 Daniel Araya, “The Big Challenges In Regulating Self-Driving Cars” (29 January 2019), online: Forbes <https://www.forbes.com/sites/mitsubishiheavyindustries/2019/10/17/from-food-deliveries-to-batteries-this-spacecraft-is-a-lifeline-for-astronauts/#94e1d7a63a83>.
 The Canadian Press, “Self-driving cars allowed on Ontario roads, minister says” (23 January 2019), online: CTV News Toronto <https://toronto.ctvnews.ca/self-driving-cars-allowed-on-ontario-roads-minister-says-1.4265648> [Canadian Press].
 Eric Risberg, “Are driverless cars allowed on Canadian roads?” (3 May 2018), online: The Globe and Mail <https://www.theglobeandmail.com/drive/culture/article-are-driverless-cars-allowed-on-canadian-roads/>.
 Canadian Press, supra note 3.
 Marc Lajoie, “Self-driving cars: Who to save, who to sacrifice?” (25 April 2019), online: CBC Radio-Canada <https://ici.radio-canada.ca/info/2019/voitures-autonomes-dilemme-tramway/index-en.html> [Lajoie].
 Andreas Eustacchio, “Legal Ramifications in the Self-Driving Car Era” (11 April 2018), online: Geopolitical Monitor <https://www.geopoliticalmonitor.com/self-driving-cars-and-their-legal-future/>.
 Lajoie, supra note 9.