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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