The days of imagining self-driving fully autonomous vehicles roaming Canadian streets are quickly coming to an end. According to recent market research data, it is projected that by the year 2035 approximately 25% of all new cars sold will be fully autonomous vehicles. That number swells to 50% if we limit the territory to the North American market.
Despite this being exciting news for most, once you examine more carefully the implications of this reality it can also be quite terrifying. A very real and growing threat to consumers and auto-manufacturers will come in the form of hacking/hackers due to the existence of cybersecurity vulnerabilities. For example, a pair of hackers managed in both 2014 and 2015, to remotely gain access to a Jeep Cherokee’s functions using the vehicle’s IP address. During the hack they were able to switch radio stations, completely shut down the vehicle and cause the car to aggressively brake and accelerate unintendedly.
Presently, the Canadian government recognizes 6 levels of automation; each level represents an increasing degree of automation.
- Level 0, no automation, the driver performs all of the driving tasks.
- Level 1, driver assistance, the driver controls the vehicle but can enjoy features such as adaptive cruise control.
- Level 2, the vehicle has partial automation as it can provide steering, acceleration and braking assistance functions.
- Level 3 is referred to as conditional automation; the vehicle can perform dynamic driving tasks on its own. However, it still requires a human to be available to intervene when needed.
- Level 4 is referred to as high driving automation. The vehicle is capable of being fully autonomous, however, it still allows human intervention as the driver deems necessary.
- Level 5 is full automation; there is no possibility of human intervention.
The vast majority of laws and regulations surrounding the auto industry were designed in a pre-smart car era. Ontario was the first province to introduce legislation governing driverless cars in Canada with the implementation of its Pilot Project regulation 306/15 of the Highway Traffic Act. However, this regulation was merely a first step towards regulating driverless cars as it failed to yield any changes to the liability regimes found in the law. In the province of Quebec, the only legislation regulating autonomous vehicles is Bill 165, An Act to amend the Highway Safety Code and other provisions which, just like in Ontario, permits individuals to drive cars with level 3 automation.
This leads us to the current state of both manufacturer and individual liability in events involving automobiles. Section 5 of the Quebec Automobile Insurance Act establishes a no-fault regime. This provision as well as section 6 of the same act state that, regardless of fault, compensation is granted to all victims who have suffered bodily damages due to an automobile accident. Despite the no-fault regime established in this act, the owner of a vehicle is liable for the property damages that result from an accident. Section 108 of the same act provides several exceptions to this rule. It states that a vehicle owner that is liable for property damage may avoid or reduce his liability should he prove that the fault of the accident falls on: (1) the victim himself, superior force or a third party; or (2) that at the time of the accident he did not have possession of the vehicle due to losing it as a result of theft. In the event that your level 3 automation vehicle is hacked, causing an accident, a competent lawyer can use this provision to prevent you from being held liable for the damages.
The case of ABB Inc. v. Domtar  adequately summarizes Quebec’s Civil Law approach to product liability in the Civil Code of Quebec section 1726. It provides that in the event of a new product having a defect, consequently, there is a presumption that the defect existed at the time of purchase. Therefore, should an autonomous vehicle malfunction or be equipped with an inadequate security system, the manufacturer is presumed to be at fault. Furthermore, manufacturers of any given good are typically considered to be the experts of the product(s) in question. As a result, the manufacturer is burdened with the strongest presumption of knowledge and is obligated to disclose all latent defects. They are held to a high standard of diligence for discovery of all possible latent or apparent defects. Thus, a manufacturer cannot rebut a presumption by claiming ignorance of the defect.
If you are an autonomous vehicle manufacturer, you will be relieved to learn that there are two recognized defences that a manufacturer can invoke to rebut the presumption of knowledge or fault. They may do so by first proving that the actual cause was on the part of the consumer, a third party or a superior force. The second recognized defense is development risk; a manufacturer can avoid liability by proving that the defect was not detectable at the time of its production due to limits in existing scientific and technological research methods. Should one of the vehicles you manufactured be hacked, a lawyer can use these available defences to help you avoid liability.
As the province of Quebec’s only regulation for autonomous vehicles does not contain provisions regarding liability and insurance, there remains a great deal of legal uncertainty. For example, should both the consumer and the manufacturer not be at fault and the hacker cannot be caught, who is responsible and for how much?
In part two of this article, we will discuss how your vehicle’s technology is putting your privacy at risk.
Marco Fantin, Articling Student,
Alepin Gauthier Avocats Inc.
This text contains legal information of a general nature and should not replace legal advice with a lawyer or notary who will take into account the particularities of your situation.