It is an offence under both the federal Criminal Code of Canada and the Ontario Highway Traffic Act to fail to remain at the scene of an accident. Both the procedure and potential consequences vary depending on which legislation you are charged under. If charged under the Criminal Code, there are more serious penalties depending on whether the person(s) involved in the accident suffered bodily harm or death. However, there is no duty under the Criminal Code to remain at the scene of an accident where only one vehicle is involved, and there are no injuries sustained by any passenger.

• Criminal Code of Canada (Federal criminal legislation):
  • S. 320.16(1): Failure to Stop at an Accident
  • S. 320.16(2): Failure to Stop at an Accident Involving Bodily Harm
  • S. 320.16(3): Failure to Stop at an Accident Involving Death

• Highway Traffic Act (Ontario non-criminal legislation):
  • S. 200(1): Duty of Person in Charge of Vehicle in Case of Accident

What is Fail to Remain?

A person commits the criminal offence of failing to stop after an accident where:

• He or she operates a conveyance at the time;
• He or she knows or is reckless as to whether the conveyance has been involved in an accident; and
• He or she fails, without reasonable excuse, to stop, give their name and address, and offer assistance if someone has been injured or appears to require assistance.

A person commits the provincial offence of failing to remain at the scene of an accident where:

• An accident occurs on a highway;
• He or she is directly or indirectly involved in the accident;
• He or she fails to remain at or immediately return to the scene of the accident;
• He or she fails to render all possible assistance; and
• He or she fails to provide an injured party, police, or witness with his or her:
  • Name;
  • Address;
  • Driver’s licence and the province that issued it;
  • Motor vehicle liability insurance policy insurer and policy number;
  • The name and address of the registered owner of the vehicle, and
  • The vehicle permit number.

What is a "Conveyance"? (Criminal Code)

Under the Criminal Code, a conveyance is defined as a motor vehicle, vessel, aircraft, or railway equipment.

What is Recklessness? (Criminal Code)

A person can commit the offence of Failing to Stop not only when they know a conveyance has been involved in an accident but also where they are reckless as to whether this has happened. Recklessness exists where a person is aware of the fact that their behaviour could bring about a result that is prohibited by law but chooses to continue, despite the risk.

What is a "Reasonable Excuse"? (Criminal Code)

If a person has a valid reason for failing to stop or remain at the scene of an accident – such as a medical emergency or a fear for his or her imminent safety – this may provide a defence to the charge.

What is a "Highway"? (Highway Traffic Act)<

Under the Highway Traffic Act, a "highway" includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof.

Possible Penalties if Convicted of Failing to Remain Penalties Under the Criminal Code

Failing to Stop After an Accident and Failing to Stop After an Accident resulting in Bodily Harm are hybrid offences, meaning the Crown can elect to proceed by summary conviction or by indictment. Failing to Stop After an Accident resulting in Death is a straight indictable offence – there is no Crown election.

The potential penalties are as follows:

If charged with Failing to Stop under s. 320.16(1):

• If the Crown proceeds by summary conviction: the maximum punishment is a fine of not more than $5000 or a term of imprisonment of not more than two years less a day, or both.

• If the Crown proceeds by indictment: the maximum punishment is ten years imprisonment.

If the offence involved causing bodily harm:

• If the Crown proceeds by summary conviction: a fine of not more than $5,000 or to imprisonment for a term of not more than two years less a day, or to both.
  • For a first offence: there is a mandatory minimum fine of $1000.
  • For a second offence: there is a mandatory minimum of 30 days imprisonment.
  • For each subsequent offence: there is a mandatory minimum of 120 days imprisonment.

• If the Crown proceeds by indictment: a maximum punishment of fourteen years imprisonment, as well as the following mandatory minimums:
  • For a first offence: there is a mandatory minimum fine of $1000.
  • For a second offence: there is a mandatory minimum of 30 days imprisonment.
  • For each subsequent offence: there is a mandatory minimum of 120 days imprisonment.

If the offence involved causing death: a maximum punishment of life imprisonment and to the following mandatory minimum punishments:

• For a first offence: $1000 fine.
• For a second offence: 30 days imprisonment.
• For each subsequent offence: 120 days imprisonment.

Penalties Under the Highway Traffic Act

The potential penalties for a conviction of Failing to Remain under the Highway Traffic Act are as follows:

• A minimum fine of $200, up to a maximum of $2000; OR
• to a term of imprisonment for not more than six months; OR
• To both a fine and imprisonment; AND
• Potentially a licence suspension for a period of not more than two years.

A conviction for failing to remain may also impact your motor vehicle insurance rates.

Aggravating Factors

If convicted of the Criminal Code offence of Failing to Stop at an Accident, there are several aggravating factors that the Court will consider when sentencing the accused, including:

• Whether the commission of the offence resulted in bodily harm to, or the death of, more than one person;
• Whether the accused was operating a motor vehicle in a race or contest of speed with at least one other motor vehicle;
• Whether someone under 16 years of age was a passenger in the conveyance operated by the accused;
• Whether the accused was being paid at the time to operate the conveyance;
• Whether the accused’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;
• Whether the offender was operating a large motor vehicle; and
• Whether the offender was not permitted, under a federal or provincial Act, to operate the conveyance at the time.

Defences Available for a Charge of Failing to Stop/Remain

As in every case, the defences that may be available to you depend on the specific facts of your case.

The following list includes defences that may be available in a Failure to Stop/Remain case:

• Factual Innocence: If the Crown is unable to prove the following elements beyond a reasonable doubt, they will have failed to discharge their burden:
  • the identity of the accused;
  • the date and time of the incident and jurisdiction;
  • that an accident occurred;
  • that the accused operated one of the "conveyances" involved;
  • that the accused knew or was reckless to the fact that an accident had occurred;
  • that the accused did not stop, give his name/address, or offer assistance to any injured persons;

• Reasonable Excuse: If a person has a valid reason for failing to stop or remain at the scene of an accident – such as a medical emergency or a fear for his or her imminent safety – this may provide a defence to the charge.
• No Knowledge: If circumstances existed such that the accused was unaware that an accident had occurred, this would provide a defence to the charge, as the accused would have lacked the intention to leave the scene of an accident.
• Violation of Charter Rights: Under the Canadian Charter of Rights and Freedoms, individuals are afforded specific rights, including:
  • the right against unreasonable search and seizure;
  • the right to not be arbitrarily detained;
  • the right to be informed promptly of the reasons for arrest;
  • the right to retain and instruct counsel without delay; and
  • the right to be tried within a reasonable time.

A successful Charter challenge may also result in a stay of proceedings or evidence from your case being excluded.

Next Steps

The information above provides a general overview of the offences of Failing to Stop/Remain after an Accident under both the Criminal Code and the Highway Traffic Act, as well as potential penalties and defences. However, no two cases are alike. Every criminal case is fact-specific and ranges in complexity, depending on the issues at play.

Were you charged with Failing to Stop/Remain? Contact our office today at 416-924-5969 to learn more about how we can help you. Our team of lawyers is prepared to conduct a thorough review of your situation and develop an approach that is tailored to your needs. Obtaining proper legal representation is the first step in preparing a successful defence.