5 THINGS TO KNOW ABOUT HIT-AND-RUN – PART II
THE CRIMINAL CODE OF CANADA
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 Canadian Criminal Code but also under the Quebec Highway Safety Code (see the article 5 things to know about hit-and-run - part I).
Whether you caused the accident or are a victim of one, here are five things to know about hit-and-run offences under the Canadian’s Criminal 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 CANADIAN CRIMINAL CODE?
Hit-and-run, fleeing the scene of an accident or failing to stop after accident are expressions that refer to the same prohibited actions: failing to stop your conveyance after an accident, failing to give your name and address, failing to offer help to people who are injured or who appear to require assistance.
Under section 320.16 of the Criminal Code, a person who fails to stop the conveyance they were operating after accident, who fails to identify themselves by giving their name and address, and who fails to offer assistance to a person who has been injured or who appears to require assistance, could be charged with the hit-and-run offence.
To be charged with a hit-and-run offence, the driver must first have been operating a conveyance at the time the accident occurred.
The offence under the Canadian Criminal Code therefore applies to more than just a road vehicle: it applies to a “conveyance”.
What is a conveyance?
The term “conveyance” includes a motor vehicle (cars, trucks, motorbikes, etc.), a vessel, an aircraft, including a hovercraft, or railway equipment (section 320.11 Criminal Code).
What is an accident?
The term “accident” is not defined by the Criminal Code, but the Courts have proposed a definition:
an accident includes any incident in which a person operates their conveyance in such a way as to cause damage to another conveyance or to other persons (R. v. Reid, 2021 NLCA 13, para. 24 to 26);
regardless of the person's intention in causing the incident (R. v. Hansen, (1988) 46 C.C.C. (3d) 504 (C.A.C.-B.), para. 27 and 30; Hannam et al. c. R., 1986 CanLII 1997 (AB KB), para. 10 et seq..; R. c. Dubois, 2008 QCCM 210, para. 77).
Who can be involved in an accident?
An accident can also include a situation where a driver strikes a pedestrian (R. v. Reid, 2021 NLCA 13), a passenger in another vehicle, or a passenger in the vehicle of the person who caused the accident (Mihalick c. R., (1991) 28 M.V.R. (2d) 114, para. 24-25 (C.A. C.-B.)).
Is it necessary to have a collision?
No. For there to be a hit-and-run, the accident does not have to involve a collision. If a person's conduct is the cause of an incident resulting in harm or damage to the victim, this may still constitute an accident within the meaning of this offence. This is, for example, what the Courts have ruled about the conduct of an offender who
"on a highway, cut off the trajectory of the victim's car without warning, attempted to block their path several times and then, without the flow of traffic justifying it in any way, braked suddenly, causing the car behind them to swerve" (Thériault c. R., 2005 QCCA 583, para. 4).
Is it necessary to have damage or injury?
No. The Courts have concluded that damage or injury does not have to be caused for the incident to constitute an accident within the meaning of the Criminal Code (R. v. Chase, 2006 BCCA 275, para. 38 and 40).
* Caution! Do not confuse the term “accident involving a conveyance” with accident as a defence, which constitutes one of the possible means of defence against an alleged offence *
2. What are the obligations in the event of an accident?
Any driver involved in an accident must:
Stop their conveyance and remain at the scene of the accident or return immediately;
Identify themselves by giving your name and address;
Offer assistance to a person who has been injured or who appears to require assistance.
3. Possible consequences of a hit-and-run: applicable penalties and sanctions
There are several types of penalties depending on the circumstances of the case. Criminal, penal, and administrative sanctions may apply.
Hit-and-run and absence of bodily harm (section 320.16(1) Criminal Code)
If convicted, a person charged with this offence is liable to imprisonment for a term of not more than 10 years (section 320.19(5)a) Criminal Code).
The accused is liable to imprisonment for a term of not more than 2 years less a day if found guilty an offence punishable on summary conviction (section 320.19(5)(b) Criminal Code).
As there is no minimum imprisonment sentence for this offence, a discharge may be granted by the court.
Hit-and-run and bodily harm (section 320.16(2) Criminal Code)
If convicted, the accused is liable to imprisonment for a term of not more than 14 years (section 320.2a) Criminal Code), and to a minimum punishment of :
A fine of $1,000 for a first offence;
Imprisonment for a term of 30 days for a second offence;
Imprisonment for a term of 120 days for each subsequent offence.
If the accused person is found guilty of an offence punishable on summary conviction, they are liable to a fine of not more than $5,000 or to imprisonment for a term of not more than 2 years less a day, or to both (section 320.2b) Criminal Code), the following minimum punishments being applicable :
A fine of $1,000 for a first offence;
Imprisonment for a term of 30 days for a second offence;
Imprisonment for a term of 120 days for each subsequent offence.
Hit-and-run and death of a person (section 320.16(3) Criminal Code)
Anyone charged with this offence is liable on conviction on indictment to imprisonment for life (section 320.21 Criminal Code), and to a minimum punishment of :
A fine of $1,000 for a first offence;
Imprisonment for a term of 30 days for a second offence;
Imprisonment for a term of 120 days for each subsequent offence.
Driving prohibition order
The accused person may be deprived of the opportunity to operate their conveyance since the Court also has the power to impose a driving prohibition order for a period determined by the Court (section 320.24(4) and (5) Criminal Code), as follows :
The entire period to which the offender is sentenced to imprisonment, plus any duration that the Court considers appropriate, if the offender is liable to imprisonment for life;
The entire period to which the offender is sentenced to imprisonment plus a period of not more than 10 years, if the offender is liable to imprisonment for more than 5 years, but less than life;
The entire period to which the offender is sentenced to imprisonment plus a period of not more than 3 years, in any other case.
Effect of the prohibition order
In principle, such a prohibition takes effect on the day that it is made (section 320.24(5.1) Criminal Code). However, if such a prohibition is not only part of the sentence imposed upon conviction, but is also part of another order, such as a condition of release, that prohibition order may be served consecutively to that order (section 320.24(9) Criminal Code).
Scope of the prohibition order
If the order relates to a motor vehicle, the prohibition applies only to driving in a public place: on a street, on a road, on a highway or in any other public place (section 320.24(8) Criminal Code).
Aggravating circumstances and sentencing
To determine the sentence to be imposed, a Court takes into account the circumstances that may justify a heavier sentence - known as “aggravating circumstances” (section 320.22 Criminal Code):
a) the commission of the offence resulted in bodily harm to, or the death of, more than one person;
b) the offender was operating a motor vehicle in a race with at least one other motor vehicle or in a contest of speed, on a street, road or highway or in another public place;
c) a person under the age of 16 years was a passenger in the conveyance operated by the offender;
d) the offender was being remunerated for operating the conveyance;
e) the offender’s blood alcohol concentration at the time of committing the offence was equal to or exceeded 120 mg of alcohol in 100 mL of blood;
f) the offender was operating a large motor vehicle;
g) the offender was not permitted, under a federal or provincial Act, to operate the conveyance.
In addition to the penalties applicable in criminal matters, other penalties may apply under the Highway Safety Code resulting from a conviction for a hit-and-run offence under the Canadian Criminal Code.
Cancellation of a driver’s licence
If a person is convicted of a hit-and-run offence under the Criminal Code (section 320.16), their driver's licence will be automatically cancelled by the Société de l'assurance automobile du Québec, or the right to obtain one will be suspended (section 180 of the Highway Safety Code).
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).
4. Certain means of defence
A person charged with a hit-and-run offence may attempt to establish that they had a reasonable excuse for failing to stop their conveyance, failing to give their name and address, or failing to offer assistance to a person who appeared to require it.
For example, the accused person may try to establish that they were unaware they were involved in an accident and that they did have no intention of leaving the scene without providing their contact information (Directeur des poursuites criminelles et pénales c. Guilbert, 2021 QCCQ 6467, para. 31) or without providing assistance when required, or was unaware that bodily harm had been caused to another person (if applicable) or that the death of another person had resulted (if applicable).
The Court acquitted a driver of a motor vehicle who struck a young girl riding her bicycle on the side of the street. The driver enquired about the victim's condition and left the scene without providing her name and address. However, the driver contacted the police to report the accident and provide her contact information within 30 minutes following the accident. Due to the driver’s subsequent actions, the Court determined that she did not have the criminal intent to leave the scene of the accident without providing her contact information, believing the driver's version that she forgot to provide her contact information due to stress (Directeur des poursuites criminelles et pénales c. Guilbert, 2021 QCCQ 6467, para. 42);
In another case, the Court acquitted the person operating a conveyance who knew he had been involved in an accident with another person that caused bodily harm to that person. The prosecution brought charges against the accused for failing to stop and provide assistance to the victim. In this decision, the Court reiterated that the purpose of the offence of hit-and-run is “to ensure that an injured person is not left to fend for themselves, and that they receive appropriate assistance according to their condition” (R. c. Lepage, 2022 QCCQ 506, para. 64; Directeur des poursuites criminelles et pénales c. Guilbert, 2021 QCCQ 6467, para. 28). In this case, the Court determined that the driver offered assistance to the victim by attempting to reach the police and then his friend who, to his knowledge, had the necessary training to intervene in a critical situation. The Court also determined that the driver stopped at the scene of the accident and left after his friend arrived, who had taken control of the situation. Finally, the Court concluded that the driver did not fail in his obligation to provide his contact information, since he was a good friend of the victim and the victim knew his contact information, the latter having provided this information to the police himself (R. c. Lepage, 2022 QCCQ 506, para. 62 to 76);
In another case, the Court acquitted a driver who failed to comply with his legal obligations after colliding with a cyclist, citing as a reasonable excuse the fear of physical violence from the victim after being punched in the face by the victim through the window of his vehicle (R. v. Wells, 2020 ONCJ 294, para. 22 to 33 and 44 to 69).
In assessing the credibility of the accused person's testimony, the Court takes several factors into account, including :
"the consistency of the testimony and its precision, its coherence, its understanding, the witness’s memory, the plausibility of their statements, the absence of hesitation or reticence, the absence of contradiction, their attitude, their behavior and sincerity" (Directeur des poursuites criminelles et pénales c. Guilbert, 2021 QCCQ 6467, para. 36; Directeur des poursuites criminelles et pénales c. Mughal, 2013 QCCQ 12603).
Other defences may also be possible.
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 accurate 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.