Anthony de Fazekas | Fred Barbieri
Canada is primed for the development and testing of autonomous vehicles and related technology, highlighted by the fact that the Canadian government is supportive of the research and development of autonomous vehicle technology, a dedicated automotive sector currently exists in Canada, and autonomous vehicle testing is already taking place on public roads and at designated test centres. Although it is not currently permitted in Canada for the general public to operate an autonomous vehicle on public roads or highways, the provinces of Ontario and Quebec have enacted legislation to allow for the testing of autonomous vehicles. Canada is taking proactive steps towards the future of autonomous vehicles and while there is much legislative change required, Canada has started to position itself well for this inevitable change.
- Regulatory framework
Driving in Canada is primarily regulated at the provincial level, however, some issues, such as vehicle safety and transportation, are regulated at the federal level. As such, autonomous vehicles will impact regulations at both levels of government.
Autonomous vehicles touch upon a varied cross-section of regulatory areas, including driver licensing, vehicle standards, road safety, liability, insurance, motor vehicle safety, data security and privacy. To date, autonomous vehicles have not been the subject of much legislation in Canada. Two provinces adopted legislation that regulates the testing of autonomous vehicles: Ontario and Quebec, and the federal government amended the Motor Vehicle Safety Act to provide for, on application to the government, a temporary exemption from compliance with motor vehicle standards for “new kinds of vehicles, technologies, vehicle systems or components.” As autonomous vehicles would not comply with current motor vehicle safety standards under the Motor Vehicle Safety Act, such an exemption removes a previous barrier to the testing of autonomous vehicles in Canada.
Ontario is leading the way with autonomous vehicle testing in Canada. Section 228 of the Ontario Highway Traffic Act provides that the “Lieutenant Governor in Council may by regulation authorize or establish a project for research into or the testing or evaluation of any matter governed by this Act or relevant to highway traffic.” Pursuant to this authority, on January 1, 2016, Ontario launched a 10-year pilot project for the testing of autonomous vehicles on public roads: Ontario Regulation 306/15, Pilot Project – Automated Vehicles (the “Ontario Pilot Project”). As noted on the Ontario government website, the following points summarize key aspects of the Ontario Pilot Project:
- It is restricted to testing purposes only;
- It will run for ten years and include interim evaluations;
- Only vehicles manufactured and equipped by approved applicants are permitted;
- The driver must remain in the driver’s seat of the vehicle at all times and monitor the vehicle’s operation;
- The driver must hold a full class licence for the type of vehicle being operated;
- Eligible participants must have insurance of at least $5,000,000;
- All current Highway Traffic Act rules of the road and penalties will apply to the driver/vehicle owner; and,
- Vehicles must comply with SAE Standard J3016 and any requirements of the Motor Vehicle Safety Act (Canada) that apply to automated driving systems for the vehicle’s year of manufacture.
The Ontario Pilot Project references the Society of Automotive Engineers (SAE) International Standard J3016 which provides for six (6) levels of car automation:
- Level 0 – No automation – a human driver performs all aspects of the driving tasks;
- Level 1 – Driver assistance – a human driver is assisted by either a steering or an acceleration/deceleration assistance system;
- Level 2 – Partial automation – a human driver is assisted by both a steering and an acceleration/deceleration assistance system;
- Level 3 – Conditional automation – an automated system performs all dynamic driving tasks, with the expectation that the human driver will respond appropriately to a request to intervene;
- Level 4 – High automation – an automated system performs all dynamic driving tasks, even if a human driver does not respond appropriately to a request to intervene; and
- Level 5 – Full automation – an automated driving system performs all dynamic driving tasks, but can be managed by a human driver.
Vehicles operating at level 3 or higher are contemplated under the Ontario Pilot Project. To date, Ontario has approved seven entities to participate in the testing of autonomous vehicles on public roads: Uber, Magna, the University of Waterloo, the Erwin Hymer Group, BlackBerry QNX, Continental, and X-Matik.
Ontario recently conducted a public consultation regarding amendments to the Ontario Pilot Project. Although this consultation period is now closed, it will be interesting to see the results of such consultation. Specifically, the proposed amendments would permit:
- public registration and use of SAE level 3 (Conditional Automation) autonomous vehicles eligible for sale in Canada:
- This proposal would allow such vehicles to be registered and driven on Ontario roads.
- platooning for commercial and passenger motor vehicles:
- This proposal would allow for the platooning of vehicles. Platooning is defined as allowing one vehicle equipped with a driving support system to closely follow another. The grouping of mutually communicating vehicles forms a “platoon” that is driven by smart technology. One perceived advantage to platooning is that it may lower fuel consumption, reduce greenhouse gas emissions, and help improve road safety and efficiency.
- driverless testing of autonomous vehicles, through additional application requirements:
- This proposal will allow for SAE level 4 and 5 vehicles to be tested without a driver behind the wheel. Section 172 of the Highway Traffic Act (prohibition against stunt driving) would have to be amended.
Quebec amended its Highway Safety Code to define “autonomous vehicle” to mean an SAE level 3, 4 or 5 road vehicle and to provide for special rules that could be set under a pilot project to allow autonomous vehicles to operate on Quebec roads. Additionally, the Highway Safety Code was amended to add an explicit prohibition of the operation of an autonomous vehicle on public highways and roadways where public traffic is allowed. This prohibition does not apply to SAE level 3 vehicles that are allowed for sale in Canada.
Quebec also amended its Automobile Insurance Act to provide for an exemption from insurance contribution payments for pilot project testing of autonomous vehicles.
In January 2018, the Standing Senate Committee on Transport and Communications delivered a report on the regulatory and technical issues related to autonomous vehicles in Canada. Working with evidence provided by industry stakeholders, automakers, lawyers and police, the Committee provided recommendations regarding the federal government’s role in the arrival of autonomous vehicle technologies in Canada. The report suggests that Canada may not be ready for widespread autonomous vehicle use, and outlined a number of key recommendations to help prepare the nation for a successful autonomous vehicle strategy.
(i) Federal leadership
The committee recognized that proactive federal leadership will be required to bring together provincial, municipal and cross-border governmental stakeholders. To facilitate this leadership the committee recommended:
- The creation of a joint policy unit between Transport Canada and Innovation, Science, and Economic Development Canada to coordinate federal efforts and implement a national strategy on automated and connected vehicles;
- The engagement of provincial, territorial and municipal governments through the Canadian Council of Motor Transport Administrators to develop a model provincial policy; and
- To work with the U.S. through the Regulatory Cooperation Council to ensure that autonomous vehicles operate seamlessly in both countries.
(ii) Vehicle safety
The federal government is responsible for safety standards regulations in Canada. Although autonomous vehicles may have safety benefits, the committee noted that these vehicles actually have to work and be operated safely. To ensure vehicle safety, the committee recommended:
- That Transport Canada urgently develop vehicle safety guidelines on autonomous vehicles. The guidelines should identify design aspects for industry to consider when developing, testing and deploying such vehicles on Canadian roads. The guidelines should also be updated regularly to keep pace with the evolution of automated and connected vehicle technology.
Cybersecurity was noted as a topic of pressing and substantial concern. In order to mitigate the uncertainty of how autonomous vehicles will be connected, the committee recommended:
- That Transport Canada, in cooperation with the Communications Security Establishment and Public Safety Canada, develop cybersecurity guidance for the transportation sector based on best practices and recognized cybersecurity principles. This guidance should also include advice on equipment, replacement equipment, and software updates; and
- That Transport Canada, in cooperation with the Communications Security Establishment, Public Safety Canada, and industry stakeholders, address cybersecurity issues, establish a real-time crisis connect network, and provide regular reports on their progress.
The committee noted privacy concerns over the potential data collected by autonomous vehicle technologies and how that data would be used. As part of a national strategy towards autonomous vehicles and privacy, the committee recommended:
- That the Government of Canada table legislation in order to empower the Privacy Commissioner to investigate proactively and enforce industry compliance with the Personal Information Protection and Electronic Documents Act,
- That the Government of Canada continue to assess the need for privacy regulations specifically for connected cars and autonomous vehicles; and
- That Transport Canada bring together relevant stakeholders including governments, automakers, and consumer, develop a connected car framework with privacy protection as a key driver.
(v) Data access and competition
The committee remarked on the potential reliance on access to data for certain industries to remain competitive. As part of the national strategy the committee recommended:
- That Innovation, Science and Economic Development Canada to monitor the impact of autonomous vehicles on competition between various sectors of the automotive and mobility industries, in order to ensure that sectors such as the aftermarket and car rental companies continue to have access to the data they need to offer their services.
(vi) Research and development
The committee remarked on the important role of the federal government in research and development, as Canada is home to the second largest information technology cluster in North America. The committee noted that the federal government has the resources to encourage the research and development of autonomous vehicles in Canada, and recommended:
- The Government of Canada increase its investments in the research and development of autonomous vehicles, through a new Innovative and Intelligent Mobility Research and Test Centre. Such centre is to be located at the existing Motor Vehicle Test Centre in Blainville, Quebec. In addition to ensuring that these vehicles are tested in a mix of urban, rural and cold environments, consideration should be given to projects focused on cybersecurity and privacy; and
- That Innovation, Science and Economic Development Canada work with Networks of Centres of Excellence of Canada (NCE), which funds partnerships between universities, industry, government, and not-for-profit organisations, to create large-scale research networks and reconsider the rule requiring that these networks close down at the end of NCE program funding.
(vii) Insurance, infrastructure and public transit
Autonomous vehicles are expected to impact the areas of automotive insurance, infrastructure and public transit, all of which fall under provincial jurisdiction. To prepare for the impact, the committee recommended:
- That Transport Canada monitor the impact of autonomous vehicle technologies on the automobile insurance, infrastructure and public transit sectors.
(vii) Employment and education
The adoption of autonomous vehicles is anticipated to result in changes to employment across many sectors. In preparation for the inevitable change, the committee recommended:
- That Employment and Social Development Canada continue to work closely with the provinces and territories in order to strengthen retraining, skills upgrading and employment support for Canadians facing labour market disruption; and
- That Public Safety Canada and the Communications Security Establishment work closely with the provinces and territories to develop cybersecurity training materials and programs to improve public understanding of cybersecurity issues.
- Strategic initiatives
Although many cities across Canada have expressed interest in being a test center for autonomous vehicles, only Ontario and Quebec currently have legislation in place to allow for autonomous vehicle testing.
In addition to developing regulations which allow for autonomous vehicle testing, Ontario actively supports research and development of autonomous vehicle technology and aims to be a global leader in the near future. The 2017 Ontario provincial budget set aside $80 million for investment in autonomous vehicle testing over a five-year period.
To date, a handful of notable projects have been launched under the Ontario regulations as part of the Ontario Pilot Project. In particular the launch of dedicated testing centres and a cross-border initiative with the State of Michigan.
The Autonomous Vehicles Innovation Network (AVIN) located in Stratford, Ontario is a hub for testing and development of autonomous vehicles. AVIN has a unique demonstration zone that will allow researchers to test autonomous vehicles in a wide range of traffic and weather conditions.
The City of Ottawa was the first city in Canada to launch on-street autonomous vehicle testing. It has partnered with BlackBerry QNX and its Autonomous Vehicle Innovation Center (AVIC) to advance autonomous vehicle technology and related development. AVIC is a collective of companies in Ottawa’s autonomous vehicle ecosystem and led by BlackBerry QNX. AVIC completed the first driverless autonomous vehicle demonstration and test route in Canada which featured the Mayor of Ottawa as a passenger.
The Province of Ontario and the State of Michigan have formed a partnership to test autonomous vehicles at border crossings between Canada and the United States of America. The purpose of this collaboration is to explore how vehicles would adapt to changing traffic regulations in different jurisdictions.
With the Ontario Pilot Project, and autonomous vehicle clusters developing and testing the technology, Ontario is leading the way in Canada for the development and testing of autonomous vehicles and related technology. There is still much work to be done by all levels of government pertaining to a national strategy on automated and connected vehicles. Regulations focused on vehicle safety, cybersecurity, privacy (specifically for connected cars and autonomous vehicles), insurance, infrastructure and public education pertaining to autonomous vehicles are required to ensure the successful implementation of an autonomous vehicle strategy in Canada.
 Pilot Project – Automated Vehicles, O Reg 306/15.
 Bill 165, An Act to amend the Highway Safety Code and other provisions, 1st Sess, 41st Leg. Quebec, 2018 (assented to 18 April 2018), SQ 2018, c 7.
 Bill S-2, An Act to amend the Motor Vehicle Safety Act and to make consequential amendment to another Act, 1st Sess, 42nd Parl, 2018 (assented to 1 March 2018).
 Motor Vehicle Safety Act, SC 1993, c 16, s 9(1).
 Highway Traffic Act, RSO 1990, c H-8.
 Supra note 5.
 Supra note 4.
 Supra note 5.
 Highway Safety Code, QCLR, c C-24.2.
 Automobile Insurance Act, CQLR, c A-25.
 Senate, Standing Committee on Transport and Communications, Driving Change – Technology and the future of the automated vehicle (January 2018) (Chair: David Tkachuk).
 Personal Information Protection and Electronic Documents Act, SC 2000, c 5.