Most people assume that the legal responsibility for a hit and run begins and ends with the person behind the steering wheel, but the recent Manitoba case of R. v. Barker-Young demonstrates that passengers can also face severe criminal consequences for leaving the scene of an accident.
While the driver is usually the primary focus of a police investigation, the law in Canada is broad enough to capture anyone who operates a vehicle or assists in a crime.
The first major legal principle involved is the definition of operating a conveyance. Under Section 320.11 of the Criminal Code, to operate a motor vehicle does not simply mean to drive it; it also includes having care or control of that vehicle. The courts have clarified that care involves the charge or protection of the vehicle, while control involves having command or direction over it.
In the Barker-Young case, the court determined that even though the accused was not steering at the moment of impact, he assumed control of the vehicle immediately afterward. By explicitly telling the driver not to stop and to keep driving, the passenger effectively took command of the situation, and the driver followed those commands.
A legal question that arose in this case about when a crime is complete. The defence in this case argued that the offence of failing to stop was crystallized the very second the driver failed to pull over, meaning the passenger couldn’t be responsible for an act that had already happened. However, the court rejected this narrow interpretation, and ruled that the obligation to stop, provide particulars, and offer assistance is not limited to the exact instant of a collision. Instead, the law contemplates an ongoing duty to help someone who is injured. Because the passenger took over the actual driving shortly after the crash and continued to flee, his actions were seen as a continuous operation of the vehicle that failed the legal requirements to remain at the scene.
Even if a passenger does not physically take over the wheel, they can still be held responsible under the principles of aiding and abetting. Section 21 of the Criminal Code states that anyone who does something to assist or encourage a perpetrator is just as guilty as the person who committed the act. Aiding means helping the driver commit the crime, while abetting includes encouraging, instigating, or promoting the criminal conduct. By telling a panicked driver to drive man after a fatal collision, a passenger provides the encouragement and psychological support necessary for the driver to commit the offence of fleeing the scene.
The law also requires a specific mens rea to convict someone of this offence. For a passenger to be guilty, the court must be satisfied that they knew the vehicle had been involved in an accident and were either reckless or wilfully blind to the fact that someone was injured or killed. Wilful blindness occurs when a person’s suspicion is aroused to the point that they see a need for further inquiries but deliberately choose not to make them. In this case, the passenger was present for the loud bang of the impact and saw the severely damaged windshield, which the court found was enough to establish that he was wilfully blind to the serious bodily harm caused to the cyclist.
Ultimately, the ruling in R. v. Barker-Young demonstrates that the justice system views a hit and run as a collective failure of those in control of the vehicle to act with humanity. Whether through assuming care or control by directing the driver’s actions or by aiding and abetting the flight from the scene, a passenger’s conduct is under the same legal scrutiny as the driver’s.
The message is clear: if you are in a vehicle involved in a collision, your duty is to ensure the car stops and help is provided, because staying silent or encouraging a getaway can lead to a criminal conviction for a fatal hit and run.
