5 THINGS TO KNOW ABOUT HIT-AND-RUN – PART I
THE HIGHWAY SAFETY CODE OF QUEBEC
Claudiu Popa
If you are involved in a road accident, the law requires you to comply with certain obligations. One of these obligations is to stop your vehicle after the accident. Failure to do so can result not only in triggering your liability under the Quebec Highway Safety Code but also under the Canadian Criminal Code (see the article 5 things to know about hit-and-run - part II).
Whether you caused the accident or are a victim of one, here are five things to know about hit-and-run offences under Quebec's Highway Safety Code:
What is a hit-and-run?
What are the obligations in the event of an accident?
What are the possible consequences of a hit-and-run?
What are the usual defences to a hit-and-run charge?
What about the victim of a hit-and-run?
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1. WHAT IS A HIT-AND-RUN UNDER THE QUEBEC HIGHWAY SAFETY CODE?
Hit-and-run, fleeing the scene of an accident or failing to stop following an accident are expressions that refer to the same prohibited actions: failing to stop your vehicle after an accident, failing to give your name and address, failing to offer help to people who are injured or who appear to need assistance.
Under sections 168 and 179 of the Highway Safety Code, the driver of a road vehicle involved in an accident who fails to remain at or to immediately return to the scene after the accident, and to render the necessary assistance to any person who has sustained injury or damage could be charged with a hit-and-run offence.
An accident can also involve
(i) an animal weighing over 25kg;
(ii) an unattended road vehicle; or
(iii) an inanimate object (section 171 Highway Safety Code).
What is an accident?
According to the Highway Safety Code, an accident is an event during which injury or damage is caused by a moving road vehicle, occurring on any road or land (sections 166.1 and 167 Highway Safety Code).
An incident occurring inside a building housing a car wash or on a wash lane was not considered an accident under the Highway Safety Code since these locations do not constitute a road or land within the meaning of section 166.1 of the Code (McMasterville (Municipalité de) c. Côté, BJCMQ 2004-210 (C.M.)).
On the other hand, the courts found guilty a person accused of a hit-and-run committed in a shopping centre parking lot, despite the fact that a shopping centre parking lot is not a public road. (Verville c. Brossard, 2015 QCCS 4367).
According to the case law, an incident occurring while parking one’s vehicle and causing damage to another vehicle constitutes an accident. (Alma (Ville de) c. Bergeron, BJCMQ 95-101 (C.M.)).
2. What are the obligations in the event of an accident?
Any driver involved in an accident must:
Remain at or immediately return to the scene of the accident (section 168 Highway Safety Code);
Give the required assistance to any person who has sustained injury or damage (section 168 Highway Safety Code);
Call for a peace officer if a person has sustained bodily injury during an accident (section 169 Highway Safety Code);
Give to the peace officer or to the person having sustained injury or damage their personal information : their name and address, their licence number, the name and address of the owner entered on the registration certificate of the vehicle, the number appearing on the registration plate of the vehicle, and the certificate of insurance or of financial responsibility provided for in the Automobile Insurance Act (section 170 Highway Safety Code);
Communicate immediately with the nearest police station, report the accident and furnish the required information if the accident involves an animal weighing over 25 kg, an unattended road vehicle or any other inanimate object, and if the owner of the damaged property or a person representing him cannot be found at the scene of the accident or nearby (sections 170 and 171 Highway Safety Code; Lévis (Ville de) c. Malenfant, 2013 QCCM 283).
Some case law examples :
The courts have found a person guilty of a hit-and-run offence that occurred during the night when the accused had collided with the complainant's parked vehicle after losing control of his own vehicle. The accused was found guilty as he failed to leave his contact information on the damaged vehicle and also failed to contact the police (Lévis (Ville de) c. Malenfant, 2013 QCCM 283);
Under section 171 of the Highway Safety Code, if the owner of the damaged property cannot be found at the scene of the accident or nearby, the driver of the vehicle involved in the accident must immediately contact the police in this regard;
The courts, however, acquitted a person accused of a hit-and-run who left the scene of the accident without giving their name and address, but remained at the scene for 10 to 15 minutes, and no assistance from their behalf was needed (Tremblay c. Loretteville (Ville de), J.E. 92-1134 (C.S.));
The courts have also acquitted the defendants who left the scene of an accident once they had ascertained that no damage had been caused to the other vehicle or to a third party (Kirkland (Ville de) c. Mompoint, BJCMQ 96-256 (C.M.); Longueuil (Ville de) c. Caseault, BJCMQ 94-08416 (C.M.));
On the other hand, the courts have found guilty a driver who left the scene of an accident after the victim told them to leave, but who did not carry out any serious investigation into any bodily injury or other harm (Côté c. Saint-Charles-Borromée (Municipalité de) (June 23 2005), Saint-Hyacinthe, no 705-36-000321-040 (C.S.), j. Laramée).
3. Possible consequences of a hit and run: applicable sanctions and penalties
There are several types of sanctions depending on the circumstances of the case. Criminal, penal and administrative sanctions may apply.
Fine
A fine of $600 to $2,000 can be imposed in the event of a hit-and-run involving a person (sections 179 and 168 Highway Safety Code).
A fine of $200 to $300 can be imposed in the event of a hit-and-run involving an animal weighing over 25 kg, an unattended road vehicle or any other inanimate object (sections 178, 170 and 171 Highway Safety Code).
Demerit Points
A conviction for a hit-and-run offence under the Highway Safety Code, involving an animal weighing over 25 kg, an unattended road vehicle or any other inanimate object (sections 168 and 171 Highway Safety Code), will result in 9 demerit points (Schedule 2, Regulation respecting demerit points).
Depending on the number of demerit points on their driving record, a person could have their driver’s licence revoked or their right to obtain one suspended.
Cancellation of the driver’s licence
Cancellation due to the number of accumulated demerit points
When the total number of demerit points entered into a person's record is equal to or greater than the number set by regulation, the Société de l’assurance automobile du Québec cancels that person's driver's licence or suspends their right to obtain one (section 185 Highway Safety Code).
For these purpose, the number of demerit points is prescribed by sections 5 and 5.1 of the Regulation respecting demerit points as follows :
In the case of a learner's licence : 4 points;
In the case of a probationary licence : 4 points;
In the case of a regular driver’s licence and the person is under 23 years of age: 8 points;
In the case of a regular driver’s licence and the person is 23 or 24 years of age: 12 points;
In the case of a regular driver’s licence and the person is 25 years of age or over: 15 points.
The learner's licence, probationary licence, or regular driver’s licence of a person under 23 years of age will be automatically revoked in the event of a conviction for a hit-and-run offense under the Highway Safety Code.
Cancellation under the Highway Safety Code due to a conviction under the Canadian Criminal Code
If a person is found guilty of a hit-and-run offence under the Criminal Code (section 320.16), the Société de l'assurance automobile du Québec will cancel their licence or suspend the right to obtain one (section 180 Highway Safety Code).
The duration of the cancellation of the licence or the suspension of the right to obtain one
The duration of the sanction in the case of a hit-and-run can be 4 or 5 consecutive years from the date of cancellation or suspension, or for a longer period through a driving prohibition order issued by the Court under the Canadian Criminal Code (sections 76 and 76.1 Highway Safety Code; section 320.24(4) and (5) Criminal Code).
Other administrative sanctions may apply, such as increased licences’ fees and car insurance.
4. Certain means of defence
Hit-and-run offences under the Highway Safety Code are ‘strict liability’ offences (Directeur des poursuites criminelles et pénales c. Pizzardi, 2021 QCCQ 8215, para. 25; Caron c. Ste-Perpétue (Municipalité), 2003 CanLII 20216 (QC CS), para. 5; Ville de Lévis c. Tétreault, 2006 CSC 12, para. 64).
This means that an accused person can defend themselves if they prove
(1) they have taken reasonable precautions to avoid the event leading to imposition of the penalty (due diligence defence)
or
(2) they believed on reasonable grounds in a non-existent state of facts which, if it had existed, would have made the act or omission innocent (defence of reasonable mistake of fact) (R. c. Sault Ste-Marie, [1978] 2 R.C.S. 1299, 1325; Caron c. Ste-Perpétue (Municipalité), 2003 CanLII 20216 (QC CS), para. 8).
These defences are established by a preponderance of evidence (Caron c. Ste-Perpétue (Municipalité), 2003 CanLII 20216 (QC CS), para. 68).
Other defences may also be possible, such as the necessity defence, the insanity defence or the alibi defence (Joliette (Ville de) c. Lavoie, 2010 QCCM 215, para. 117).
The Due Diligence Defence
When raising this defence, the accused person must prove that they took reasonable precautions or means to avoid the commission of the alleged offence.
The Court will assess the accused person's conduct compared to that of a reasonable person in similar circumstances as the accused person, taking into account their situation (age, experience, physical state or state of shock after the accident) (Joliette (Ville de) c. L'Écuyer, 2009 QCCM 269, para. 71; Ville de Ste-Catherine c. Bergevin, juge Lemieux, CM Candiac, February 3rd, 2009, [2009] J.Q. 1627).
The courts acquitted a driver who left the scene of an accident because the configuration of the scene did not allow the driver to remain at the scene and provide the necessary assistance to the other driver (Québec (Procureur général) c. Slobodrian, 2007 QCCS 2011, para. 27 to 31).
The courts have determined that a person must adopt an active behavior to ensure compliance with their obligations, as a passive or wait-and-see behaviour cannot constitute due diligence (Ville de Terrebonne c. Jasmin, 2018 QCCM 296, para. 77 and 78).
The Reasonable Mistake of Fact Defence
The defence of reasonable mistake of fact may be defined as follows:
"While due diligence focuses on the individual's behaviour and the means they used to comply with the relevant provision, reasonable mistake of fact pertains to their state of mind and, more specifically, to the conformity of their subjective belief with that of a reasonable person placed in the same circumstances. Since the test is objective, ‘the defence will be admissible [only] if the accused believed on reasonable grounds in a non-existent state of facts that, if it had existed, would have made the act or omission innocent’. In other words, good faith is not sufficient to relieve the accused of liability if the belief is not accompanied by reasonable grounds." (Joliette (Ville de) c. L'Écuyer, 2009 QCCM 269, para. 73, citing professor Hughes Parent in his book Traité de droit criminel, t. 2, Themis Editions, p. 341).
This type of defence consists of proving
(1) an error of fact
and
(2) the reasonableness of the error (Directeur des poursuites criminelles et pénales c. Pizzardi, 2021 QCCQ 8215, para. 28).
In the case of a hit-and-run, the accused person must establish
(1) ignorance of the accident, bodily injury or other harm caused to others
and
(2) the reasonableness of such ignorance. Their belief in this state of facts must be sincere, honest and reasonable. (Caron c. Ste-Perpétue (Municipalité), 2003 CanLII 20216 (QC CS)).
The willful blindness of the accused person does not allow for this defence to be invoked (Ville de Terrebonne c. Jasmin, 2018 QCCM 296, para. 83).
To acquit the accused driver, the courts took into consideration factors such as :
the fact that this person was notified or that an attempt was made to notify them that there had been an accident (Joliette (Ville de) c. L'Écuyer, 2009 QCCM 269, para. 77);
the ignorance of the accident due to the high level of their sound system (Caron c. Ste-Perpétue (Municipalité), 2003 CanLII 20216 (QC CS));
the dangerousness of the situation, such as snow plowing during a heavy snowstorm (Jonquière (Ville de) c. Sirois, (March 26th, 1996), Jonquière, no 041195, BJCMQ 96-220 (C.M.), j. Turcotte);
the fear of being hit by the victim and the willingness to fill out an amicable report (Hull (Ville de) c. Alarie (September 9th, 1996), Hull, no 96-01617-0, BJCMQ 96-291 (C.M.), j. Simard);
the fact of not realising in good faith that damage had occurred as a result of the accident (Masson-Angers (Ville de) c. Martin (April 21st, 1995), Gatineau, no 95-01590, BJCMQ 95-275 (C.M), j. Séguin).
What about the defence of mistake of law?
In principle, ignorance of their legal obligations is not a valid defence in criminal or penal law (section 19 Criminal Code).
Such is the case with the hit-and-run offence: the courts have determined that the defence of mistake of law is not admissible. (Ville de Laval c. Vaudry, May 23rd, 2000, 2000 J.Q. 2352).
For example, an accused person cannot defend themselves by claiming that they called their insurer instead of communicating with a peace officer, in accordance with the obligations set out in the Highway Safety Code (Ville de Chicoutimi c. Corneau, November 10th, 1999, 1999 J.Q. no. 6712, Justice Alain Côté j.c.m.).
The courts have also determined that the fact that an accused person leaves their business card on the windshield wiper of the damaged vehicle does not meet their obligations under the Highway Safety Code with regard to hit-and-run offences. (Ville de Laval c. Vaudry, May 23rd, 2000, 2000 J.Q. 2352, Hon. juge Caron j.c.m).
5. What about the victim of a hit-and-run?
Compensation by the Société de l’assurance automobile du Québec in the event of a hit-and-run
The victim of a hit-and-run whose vehicle or property has been damaged may be entitled to compensation by the Société de l'assurance automobile du Québec (SAAQ) for the material damages suffered if it is impossible to discover the identity of the owner or driver who caused the accident.
Eligibility
In order to file a claim with the SAAQ, the following conditions must be met:
The accident occurred in Québec;
You are the owner of the vehicle or the property that were damaged (ex. : a bicyle);
The victim is not entirely responsible for the accident;
The insurance policy does not cover hit-and-run accidents;
The insurance policy includes civil liability coverage of at least $50,000;
The victim reported the hit-and-run to the police no later than 48 hours after it occurred;
The victim filed your claim with the SAAQ no later than 60 days after the accident;
The victim did not have repairs made to the vehicle or property before the SAAQ assessed the damage;
The victim’s driver’s licence is valid and was not under suspension at the time of the accident;
The vehicle is registered and its registration is valid;
The damage caused is valued at more de $500 (minus a 10% deductible of the vehicle’s value); the maximum amount of compensation is $10,000.
Exclusions
The SAAQ may refuse to compensate the victim in the event of a road accident or hit-and-run if one of the following conditions applies:
The insurance policy covers the property damage you sustained;
At the time of the accident, the driver’s licence was under suspension or was not valid;
The vehicle was not registered or your registration fees had not been paid;
The civil liability insurance was not covering property damage to another party.
The compensation is claimed for objects being carried in the damaged vehicle;
The damages are valued at less than $500;
The victim is an insurer, a company, a business, a partnership, a government body or a mandatary of the government;
The damage was caused by a vehicle that was taking part in the following activities, namely: a race, competition, show, trial, demonstration or exhibition on a track or area closed to all other automobile traffic, or inside a building.
Documents required by the Société de l’assurance automobile du Québec
The Authorization to Obtain and Disclose Personal Information in the Case of Property Damage;
A copy of the police insurance policy in effect at the time of the accident indicating the civil liability coverage, the deductibles, the vehicle model, the term of the insurance contract and the name of the person insured;
A repair estimate from a mechanic (or from another specialist in case the property is not a vehicle) including the costs of parts to repair or change, and labour, the hourly rate, as well as the mechanic’s name and business (tax) numbers;
Colour photos of the 4 sides of the vehicle, and the odometer;
A proof that you contacted the police within 48 hours from the accident (police report or other document).
This information regarding compensation by the SAAQ was retrieved from the SAAQ's website, also available by clicking on the following link: https://saaq.gouv.qc.ca/en/traffic-accident/hit-run/.
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The information in this article was up to date in 2023.
This information was prepared for informational purposes only.
This article does not constitute legal advice.
Please consult a lawyer if you need legal advice or are involved in a similar incident.