- M. Myschyshyn (Law Student)
Dangerous No-Drivers: cases of automated dangerous driving of cars and futures of responsibility
Autonomous vehicles are developing at a rapid rate and will revolutionize the future of transportation. Google, Tesla, Uber, Volvo, and many other big names are developing technology that enable vehicles to drive without any human intervention. Tesla has spearheaded the development of the autonomous vehicle market and currently offers products with semi-autonomous capabilities. The field of driverless vehicles is still young and there have been some accidents due to limitations of the technologies.
Although autonomous vehicles are likely more safe than human operated vehicles, there have still been several reports of collisions.
In one incident, the anti-collision system in a Tesla did not kick-in, causing the vehicle to rear-end a parked van.1 Another incident resulted in the destruction of the windshield of a Tesla when the owner may have accidentally engaged the self-parking feature after leaving his vehicle.2 More dangerous incidents have also occurred. In San Francisco, a driverless Uber vehicle was spotted running a red light as a pedestrian began crossing the street.3 In mid 2016, a Tesla crashed into a semi-truck while in autopilot, leading to the death of the driver.4
In Canada, the operation of vehicles is heavily regulated. In Manitoba, the Highway Traffic Act specifies rules and regulations of operating a vehicle on public roads, while the Drivers and Vehicles Act specifies the fitness and licensing requirements of individuals wishing to operate a vehicle.5 A driver may be convicted of a criminal offence depending on the severity of driving related conduct.6 Section 249 (1) of the Criminal Code states that it is an offence to operate a vehicle in a dangerous manner.7 A brief look into case law reveals that the mens rea and causation requirements to prove a criminal offence of dangerous operation of a vehicle are quite low.
In R v McDermott, the accused was charged with dangerous driving causing bodily harm under section 249 (3) after he ran through several stop signs resulting in a crash.8 In R v McIntyre the accused stole a vehicle and fled the scene at speeds of up to 50km/h above the limit.9 The accused pleaded guilty to operating a vehicle in a dangerous manner. In R v John, the accused attempted to pass a tuck on a dusty road. Low visibility and speeding contributed to a crash, resulting in the death of the spouse of the accused.10 The judge in that case convicted the accused of criminal negligence causing death. Lastly, in R v Arsenault, the accused was convicted of dangerous driving causing death.11 Mr. Arsenault stopped his vehicle on the wrong side of a road to talk to pedestrians without his blinkers on. A passing vehicle hit and killed two pedestrians. The court noted that the test for causation need only show a contributing cause beyond the de minimis range. Mr. Arsenault’s dangerous and illegal parking departed from the standard of care that a prudent driver would have exercised, resulting in a contributing cause of death above the range of de minimis, leading to a conviction under section 249 (4).
This mini case review indicates that the actus reus of such offences may be the only place to seriously entertain subjectivity for the accused's actions under section 249 or in criminal negligence offences - largely because the subjective mindset of the accused is rarely (in fact, it doctrinally would not be) considered - rather departure from reasonable conduct (marked or marked and substantial) will impart a guilty mind to an acused; this dovetails with the allotment of risk and responsibility in related offences such as establishing care or control of a car while intoxicated due to the reverse onus provision in the Code which creates a presumption of care or control when intoxicated drivers are found in the front seat of a car. Notably, if a driver's actions are in violation of municipal driving regulation then that action may well be considered criminal with further evidence.
How would the law deal with a dangerous driving offence when there is no driver? As noted above, dangerous driving of autonomous vehicles have already been reported. There are many other possible scenarios where an autonomous vehicle may drive dangerously. Autonomous vehicles navigate using various sensors and/or optical cameras in combination with complex software. Researchers have shown that the sensors on a Tesla can be tricked to make the car believe that an object is in its path when there is none.12 They can also conceal real objects from the vehicles sensors. Undoubtedly, as autonomous vehicle technology develops, the software that drives the vehicles will get better. However, it seems unlikely that a completely crash-free driving software could be designed.
A dangerous driving offence by an autonomous vehicle may foreseeably be linked to the manufacturers of the sensors or even the computer programmers responsible for the software controlling the vehicle. Software errors have produced extraordinary mishaps in the past. For example, in May 2016, a computer programing error caused Hitomi, a Japanese space satellite, to rapidly rotate, resulting in incapacitating damage to the project costing US$286 million.13 In 1985-87, a radiation therapy machine caused several deaths due to a programing bug that overdosed patients with X-rays.14 However, due to lack of precedent, it is unlikely that a software engineer would bear the blame for a dangerous driving offence.15 A more likely outcome would be a lawsuit involving a defect in design.
Liability can become complicated further when an autonomous vehicle drives dangerously due to the fault of the car owner. If a car owner does not maintain their vehicle in accordance to the safety standards specified in Part III of the Highway Traffic Act and an offence constituting dangerous driving arises, would there and can there be joint liability between the owner and the car manufacturer? Should the liability be criminal or merely civil? Many other scenarios may be hypothesized, but ultimately it is important for regulations and laws to be developed to set a broad framework for the future.
In September 2017, the United States passed a bill called the SELF DRIVE Act that is meant to lay the foundation for the future of autonomous vehicles. State specific legislation has also steadily been developed. In Canada, the only regulations on autonomous vehicles are set in Ontario and they focus on testing only. The development of regulations is important so that manufacturers are aware of the expectation of the market. The issue of dangerous driving leading to a criminal offence is not the only matter to be solved. Canada will have to develop an abundance of laws regarding autonomous vehicle if there is to be any possibility of a driverless future.
4 https://www.wired.com/2016/06/teslas-autopilot-first-deadly-crash/ ; https://www.usatoday.com/story/money/cars/2017/06/20/tesla-self-driving-car-crash/411516001/
5 Highway Traffic Act, SM 1985-86, c 3; Drivers and Vehicles Act, SM 2005, c 37.
7 Criminal Code, RSC 1985 c C-46, s 249 (1).
8 R v McDermott, 2004 BCPC 86, 2004 CarswellBC 744.
9 R v McIntyre, 2017 ONSC 360, 2017 CarswellOnt 342.
10 R v John, 2004 SKCA 13, 2004 CarswellSask 74.
11 R v Arsenault, 104 Nfld & PEIR 29, 1992 CarswellPEI 12.
17 http://www.ncsl.org/research/transportation/autonomous-vehicles-self-driving-vehicles-enacted-legislation.aspx
18 http://business.financialpost.com/transportation/we-need-to-move-more-quickly-why-canadas-falling-behind-in-driverless-cars-race
