Under the criminal law of Canada, “hit-and-run” is not only
prohibited but comes with a prison term of up to five years.
It is the public policy behind criminal law to limit or
control behaviours in our society. In society, as vehicles can weigh thousands of pounds, of metal and hard plastic, and can be complex instruments
to control, for some or all, depending on the vehicle, injury to fellow human beings by vehicle accident is inevitable.
But what should not be inevitable is the cowardly and selfish act
of one of the drivers rushing away from the scene of a vehicle accident, as if it's not their problem.
The public policy is straightforward and twofold. A person
might be injured and may need assistance from the other driver regardless as to
who might have been at fault. Secondly, the absconding of the participant(s) in
an accident between two vehicles eliminates a source of first-hand evidence as
to what caused the accident. This latter issue is important because it not only
might facilitate a determination of who should pay for damages, if any, but
also allows public authorities to manage traffic flow in the safest possible
manner.
While the public policy might be straightforward, the law is
not. A simple concept of “hit and run” has become a difficult criminal law labyrinth, for which this article attempts a walkthrough.
As with any criminal law matter, it is best to start with
the actual wording of the statute defines the offense, in this case s. 252 of
the Criminal Code, entitled “Failure to stop at scene of accident”:
“Every person commits an offence who has the care, charge or
control of a vehicle, vessel or aircraft that is involved in an accident with another
person, a vehicle, vessel or aircraft, or in the case of a vehicle, cattle in
the charge of another person, and with intent to escape civil or criminal
liability fails to stop the vehicle, vessel or, if possible, the aircraft, give
his or her name and address and, where any person has been injured or appears
to require assistance, offer assistance.”
The punishment for the crime could be life if:
“The person
knows that another person involved in the accident is dead; or the person knows
that bodily harm has been caused to another person involved in the accident and
is reckless as to whether the death of the other person results from that
bodily harm, and the death of that other person so results.”
The list of objects that may be the subject of the accident,
from which a criminal conviction might flow, is exhaustive. For example, a
person would not be criminally liable under the hit-and-run provisions of the Criminal
Code if, while driving a vehicle alone, she struck a building, a tree, a post or a
fire hydrant and then absconded without leaving her name and address.
Nor does the section refer to a "motor vehicle" (as does, for example, the UK
Road Traffic Act, 1988, ch. 52) but just a "vehicle.
The courts in Canada take a broad view of the word “accident”.
For example, they have interpreted the word to include a passenger in the
accused’s vehicle. In
R v Mihalick 28 MVR 2d 114 (1991), the British Columbia
Court of Appeal adopted the trial judge’s words on the issue as follows:
“In my view, there is no logical reason why the legislation
should provide protection to a pedestrian or to a person in another vehicle but
not to a person riding as a passenger in the accused's vehicle. The passenger
may or may not know the identity of the person who has the care, charge or
control of the vehicle. For instance, that person may have been a hitch-hiker.
If the passenger is injured he or she would not be in less need of assistance
than a pedestrian or a person in another vehicle.”
In another case, R v Chase 2005 BCCA 275, the British Columbia Court of Appeal summary is as follows (emphasis added):
"Did the learned summary conviction appeal court judge err in law in finding
that the Applicant was properly convicted of failing to stop at the scene
of an accident under s. 252(1) of the Criminal Code when there was no evidence
of damage or injury? The appellant’s argument that the actus reus or external elements of
an offence charged under s. 252(1) include damage or injury was rejected.
Section 252(1) does not incorporate, either as an ingredient of the offence,
or as a condition precedent for an accused’s obligation to stop at the
scene of an accident and leave his name and address, the presence of damage
or injury resulting from the accident."
Further, in R v King 3 CCC 133 (1970), the accused “gave his
correct name and address, but, instead of revealing that he had been in charge
of a vehicle involved in the accident, he deceived the officer by stating only
that he had observed the stricken person lying in the ditch or by the roadside
as he passed by.”
The Ontario Court of Appeal maintained the conviction of the
accused concluding that:
“What was done here was calculated to conceal, not to
reveal, the respondent's identity as "a person having the care, charge or
control of a vehicle that is involved in an accident" and the inescapable
inference from such conduct is that one who indulges in it does so with intent
to escape civil or criminal liability.”
To most readers, and certainly to lawyers, the words “with
intent to escape ... liability” within the Code, would attract interest as fishing grounds for acquittals.
This in mind, the government has included this evidentiary
provision within the Criminal Code, and which creates a rebuttable presumption:
“Evidence that an accused failed to stop his vehicle, vessel
or, where possible, his aircraft, as the case may be, offer assistance where
any person has been injured or appears to require assistance and give his name
and address is, in the absence of evidence to the contrary, proof of an intent
to escape civil or criminal liability.”
It was only a matter of time before wise counsel considered
the inconsistency of that evidentiary provision against the legal right set out
at s. 11(d) of the Charter of Rights and
Freedoms which holds that any person charged with an offense “has the right ...
to be presumed innocent until proven guilty...”
But it has been judicially determined that the hit-and-run
rebuttable presumption set out above, while offending 11(d) of the charter, is
otherwise a “reasonable limit prescribed by law as can be demonstrably
justified in a free and democratic society” (R v Gosselin 45 CCC 3d 568 (1988).
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