Consent Search and Failure to Stop or Remain at Scene of Accident (Repealed Offence): Difference between pages

Failure to Stop or Remain at Scene of Accident
	s. 252(1.1) and (1.2) of the Crim. Code
Election / Plea
Crown Election	Hybrid / Indictable; summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction	Prov. Court; Sup. Court w/ Jury (); Sup. Court w/ Judge-alone (); * Must be indictable. Preliminary inquiry also available.
Summary Dispositions
Avail. Disp.	Discharge (730); Suspended Sentence (731(1)(a)); Fine (734); Fine + Probation (731(1)(b)); Jail (718.3, 787); Jail + Probation (731(1)(b)); Jail + Fine (734); Conditional Sentence (742.1);
Minimum	None
Maximum	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp.	Discharge (730); Suspended Sentence (731(1)(a)); Fine (734); Fine + Probation (731(1)(b)); Jail (718.3, 787); Jail + Probation (731(1)(b)); Jail + Fine (734); Conditional Sentence (742.1); (* varies)
Minimum	None
Maximum	5 years incarceration; 10 years incarceration (harm) or; Life (death)
Reference
	Offence Elements; Sentence Digests;

VisualWikitext

Revision as of 19:24, 9 February 2019

< Criminal Law/Sentencing
< Offences

Overview

Offences relating to failure to stop or remain at scene of accident are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Pleadings

Template:PleadingsHybridList Template:PleadingsIndictableList

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)

Offences under s. 252(1.1) [failure to stop] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Offences under s. 252(1.2) [with bodily harm] and 252(1.3) [with death] are straight indictable. There is a Defence election of Court under s. 536(2).

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By a Judge or Justice on a Release Order s. 515 to 519	Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act
s. 252(1.1)	Template:ReleaseProfileAll
s. 252(1.2) or (1.3)	Template:ReleaseProfileOnlyBail

When charged under s. 252(1.1), the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Template:ReleaseOnlyBail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
"for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

And, regardless of Crown election, if the offence alleged was one:

where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

A peace officer who charges a person under s. 252 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 252

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Failure to stop at scene of accident

252. (1) 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

(a) another person,

(b) a vehicle, vessel or aircraft, or

(c) 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.

Punishment

(1.1) Every person who commits an offence under subsection (1) in a case not referred to in subsection (1.2) or (1.3) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction.

Offence involving bodily harm

(1.2) Every person who commits an offence under subsection (1) knowing that bodily harm has been caused to another person involved in the accident is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Offence involving bodily harm or death

(1.3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for life if

(a) the person knows that another person involved in the accident is dead; or

(b) 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.

...
R.S., 1985, c. C-46, s. 252; R.S., 1985, c. 27 (1st Supp.), s. 36; 1994, c. 44, s. 12; 1999, c. 32, s. 1(Preamble).

– CCC

Proof of the Offence

Proving Failure to Stop or Remain at Scene of Accident under s. 252(1), (1.1) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the accused must be the operator of one of the vehicles ☐ the make and model of the vehicle driven by accused ☐ there must be an accident with a person, vehicle, or cattle ☐ the condition of the objects before and after a collision ☐ the culprit must be aware of the accident ☐ the accused did not stop, give his name/address or offer assistance to any injured persons ☐ the accused must flee for the purpose of escaping criminal or civil liability in relation to the accident (presumed under s. 252(2))	Proving Failure to Stop or Remain at Scene of Accident under s. 252(1.2) should include: ☐ underlying elements of s. 252(1), (1.1) ☐ the culprit knew that "bodily harm has been caused to another person involved in the accident" Proving Failure to Stop or Remain at Scene of Accident under s. 252(1.3) should include: ☐ underlying elements of s. 252(1), (1.1) ☐ the culprit "knows that another person involved in the accident is dead" or "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".

Interpretation of the Offence

Duty

The offence imposes a duty upon all people to stop their vehicles, provide their name and address, and offer assistance to injured persons. A failure to do any of these duties will make out the mens rea of the offence.^[1]

Mens Rea

Actual subjective knowledge of the accident is necessary.^[2]

Circumstances of the Offence

It is not necessary for the Crown to prove that there was any damage or injury.^[3]

Section 252(1)(a) can include a single vehicle accident where "another person" refers to the passenger of the vehicle.^[4]

↑ R v Parks, 1979 ABCA 242 (CanLII), per Harradence JA at paras 7, 8
R v Steere, (1972) 6 CCC (2d) 403 (BCCA), 1972 CanLII 1256 (BC CA), per MacFarlane JA
↑ R v Slessor, 1969 CanLII 248 (ON CA), [1970] 2 CCC 247 (Ont. C.A.), per Laskin JA at pp. 260-61
R v Faulkner (No. 2) (1977), 37 CCC (2d) 217 (N.S. Co. Ct.), 1977 CanLII 1976 (NS SC), per McLellan J
R v MacDonald (1972), 8 CCC (2d) 16 (B.C.S.C.), 1972 CanLII 1286 (BC SC), per Berger J at p. 18 - ("The test therefore is a subjective one. Did the accused know he had been involved in an accident?")
see also R v Bartlett, 1994 CanLII 4427 (NL SCTD), per Barry J
↑ R v Chase, 2006 BCCA 275 (CanLII), per Rowles JA, at para 40
↑ R v McColl, 2008 ABCA 287 (CanLII), per Hunt JA, at para 28

Definitions

Section 214 defines "aircraft" and "vessel".

"Liability"
"Liability" refers to liability that flows from the accident, not simply any liability that may arise from unrelated acts.^[1]

↑ R v Hofer, 1982 CanLII 2378 (SK CA), (1982), 2 CCC (3d) 236 (Sask. C.A.), per Hall JA - judge found sole reason for failing to stop was to avoid arrest due to outstanding warrants

Section 252 Presumption of Mens Rea

Section 252(2) creates a presumption where there is evidence of the accused failing to stop that is proof of intent to escape criminal or civil liability. This presumption can be negated by evidence of intoxication.^[1] The presumption is rebutted by presenting evidence that raises a doubt.^[2]

The effect of s. 252(2) is that once the full actus reus is proven then the mens rea is presumed until there is evidence to the contrary.^[3]

252
...

Evidence

(2) In proceedings under subsection (1), 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.
R.S., 1985, c. C-46, s. 252; R.S., 1985, c. 27 (1st Supp.), s. 36; 1994, c. 44, s. 12; 1999, c. 32, s. 1(Preamble).

– CCC

Section 252(2) requires an accused who is involved in an accident to:^[4]

stop
give their name and address, and
offer assistance if a person appears injured or in need of assistance.

A failure to do any of these steps will result in engaging the presumption under s. 252(2).^[5]

Despite anything said in s. 252(2), the burden always remains on the Crown. This presumption "does not place any onus on the accused to establish his lack of intent".^[6] It is only to be applied "only in the absence of any evidence to the contrary."^[7] The accused need only raise a reasonable doubt that he did not have the necessary intent.^[8]

The intent to escape liability must relate to liability arising from the accident at issue and not arising from other conduct that may result in liability.^[9]

Evidence establishing that the accused escaped to avoid being arrested rather than avoid liability is not evidence to the contrary.^[10]

↑ R v Nolet (1980), OJ No. 3027 (ONCA)(*no CanLII links)
↑ R v Kleberc, 2007 YKTC 61 (CanLII), per Luther J, at para 11
↑ R v Roche, 1983 CanLII 130 (SCC), [1983] 1 SCR 491, per Lamer J
↑ R v Seipp, 2017 BCCA 54 (CanLII), per Bennett JA, at para 30
↑ Seipp, ibid., at para 30
↑ Roche, supra, at para 23 ("The presumption provision does not place any onus on the accused to establish his lack of intent. The onus remains on the Crown to prove the case beyond a reasonable doubt. The presumption provision simply assists the Crown in achieving that standard of proof and is applicable only in the absence of any evidence to the contrary.")
↑ Roche, ibid. at para 23
see also Evidence to the Contrary
↑ R v Proudlock, 1978 CanLII 15 (SCC), [1979] 1 SCR 525, per Pigeon J at 551
Seipp at para 30
↑ R v Fournier, (1979), 8 C.R. (3d) 248 (Q.C.C.A), 1979 CanLII 1619 (QC CA), per Dube JA
↑ Seipp, supra

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Maximum Penalties

Offence(s)	Crown Election	Maximum Penalty
s. 252(1.1) [failure to stop]	Summary Election	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 252(1.1) [failure to stop]	Indictable Election	5 years custody
s. 252(1.2) [with bodily harm]	N/A	10 years custody
s. 252(1.3) [with death]	N/A	life in custody

Offences under s. 252(1.1) are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) .

Offences under s. 252(1.2) and (1.3) are straight indictable. The maximum penalty is 10 years under s. 252(1.2) or life under s. 252(1.3).

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s)	Crown Election	Discharge s. 730	Suspended Sentence s. 731(1)(a)	Stand-alone Fine s. 731(1)(b)	Custody s. 718.3, 787	Custody and Probation s. 731(1)(b)	Custody and Fine s. 734	Conditional Sentence (CSO) s. 742.1
s. 252(1.1)	any
s. 252(1.2)	N/A
s. 252(1.3)	N/A

For offences under s. 252(1.1) or (1.2), all dispositions are available. The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

If convicted under s. 252(1.3) a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".

Offences under s. 252(1.3) are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Failure to Stop or Remain at Scene of Accident (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 252	If convicted under s. 252, there is a discretionary DNA Order as a secondary designated offence listed under s. 487.04 (c), (d) or (e), regardless of Crown election.

General Sentencing Orders

Order	Conviction	Description
Non-communication order while offender in custody (s. 743.21)	any	The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738)	any	A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737)	any	A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

General Forfeiture Orders

Forfeiture	Conviction	Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))	any	Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not* apply to summary offences*.
Fine in Lieu of Forfeiture (s. 462.37(3))	any	Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491)	any	Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1)	any	Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not* apply to summary offences*.