Failure to Stop or Remain at Scene of Accident (Offence)
|Failure to Stop or Remain at Scene of Accident|
|s. 320.16(1), (2) or (3) of the Crim. Code|
|Election / Plea|
|Crown Election||Hybrid / Indictable|
summary proceedings must initiate within 12 months of the offence (786(2))
Sup. Court w/ Jury (*)
|Avail. Disp.||Discharge (730)|
Conditional Sentence (742.1)
|Maximum||2 years less a day|
|Maximum||5 years incarceration|
10, 14 years incarceration or Life
Offences relating to failure to stop or remain at scene of accident are found in Part VIII.1 of the Criminal Code concerning "Offences Relating to Conveyances".
|Crown Election||Defence Election
|s. 320.16(1) [failure to stop at accident]||Hybrid Offence(s)||(* only if Crown proceeds by Indictment)||(under 14 years max)|
|s. 320.16(2) [failure to stop at accident involving bodily harm]||Hybrid Offence(s)||(* only if Crown proceeds by Indictment)||(14 years max)|
|s. 320.16(3) [failure to stop at accident involving death]||Indictable Offence(s)||(life max)|
by Peace Officer
by Judge or Justice
s. 508(1), 512(1), or 788
s. 498, 499, and 501
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. 320.16(1) [failure to stop at accident]|
|s. 320.16(2) [failure to stop at accident involving bodily harm] or
s. 320.16(3) [failure to stop at accident involving death]
When charged under s. 320.16(1) [failure to stop at accident] , 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.
When charged under s. 320.16(2) [failure to stop at accident involving bodily harm] or (3) [failure to stop at accident involving death], the accused can be given a judicial summons without arrest. 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.
- Reverse Onus Bail
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 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)).
- Fingerprints and Photos
A peace officer who charges a person under s. 320.16 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
|AG Consent Required||Serious Criminality|
s. 36 IRPA
|s. 320.16(1) [failure to stop at accident]||(10 years max)|
|s. 320.16(2) [failure to stop at accident involving bodily harm]||(14 years max)|
|s. 320.16(3) [failure to stop at accident involving death]||(life max)|
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Draft Form of Charges
|"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"AND FURTHER at the same time and place aforesaid, he [or she]..."|
|Code Section||Subject of Offence||Draft Wording|
|"..., contrary to section XXX of the Criminal Code.|
Proof of the Offence
Proving Failure to Stop or Remain at Scene of Accident under s. 320.16(1) should include:
Proving Failure to Stop or Remain at Scene of Accident under s. 320.16(2) should include:
Proving Failure to Stop or Remain at Scene of Accident under s. 320.16(3) should include:
Interpretation of the Offence
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.
- Mens Rea
Actual subjective knowledge of the accident is necessary.
- Circumstances of the Offence
It is not necessary for the Crown to prove that there was any damage or injury.
Section 320.16(1) can include a single vehicle accident where "another person" refers to the passenger of the vehicle.
R v Parks, 1979 ABCA 242 (CanLII), per Harradence JA, at paras 7 to 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),  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 - referring to old legislation
"Liability" refers to liability that flows from the accident, not simply any liability that may arise from unrelated acts.
Participation of Third Parties
- 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
s. 606(4.1), (4.2)
|Victim Notice |
of Impact Statement
|s. x [x]|
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
- Maximum Penalties
|s. 320.16(1) [failure to stop at accident]||summary election||Two years less a day|
|s. 320.16(1) [failure to stop at accident]||indictable election||10 years incarceration|
|s. 320.16(2) [failure to stop at accident involving bodily harm]||N/A||14 years incarceration|
|s. 320.16(3) [failure to stop at accident involving death]||N/A||life in custody|
Offences under s. 320.16(1) are hybrid. If prosecuted by indictment, the maximum penalty is 10 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. 320.16(2) and (3) are straight indictable. The maximum penalty is 14 years incarceration under s. 320.16(2) or life under s. 320.16(3).
- Minimum Penalties
These offences have no mandatory minimum penalties.
- Available Dispositions
s. 718.3, 787
|s. 320.16(1) [failure to stop at accident]||any|
|s. 320.16(2) [failure to stop at accident involving bodily harm]||N/A|
|s. 320.16(3) [failure to stop at accident involving death]||N/A|
For offences under s. 320.16(1) [failure to stop at accident] or (2) [failure to stop at accident involving bodily harm], 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. 320.16(3) [failure to stop at accident involving death] 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. 320.16(3) [failure to stop at accident involving death] 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.
Ancillary Sentencing Orders
- Offence-specific Orders
|DNA Orders||s. 320.16(1) [failure to stop at accident] - regardless of election
s. 320.16(2) [failure to stop at accident involving bodily harm] - only on indictable election
s. 320.16(3) [failure to stop at accident involving death]
- General Sentencing Orders
|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 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 Her Majesty the Queen on application of the Crown.|
|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.|
Record Suspensions and Pardons
Convictions under s. 320.16 are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".
Until December 18, 2018, the offence read as follows: