A recent ruling from the Court of Appeal of Yukon serves as an example of what the Crown must do in order to prove the offence in Court. Section 252 (1) of the Criminal Code sets out certain duties you must fulfill if you are driving and get into an accident with another person or vehicle. You must:
Give your name,
Give your address, and
Offer assistance to anyone who might have been injured
These duties are cumulative, meaning if you don’t do all of them, you commit the offence of failure to stop. The Criminal Code also states that evidence that an accused failed to carry out these duties is sufficient proof of their intent to escape civil or criminal liability. In other words, it is presumed that anyone leaving the scene of an accident they were involved in is doing so deliberately to escape criminal punishment or financial costs.
This presumption is effectively a shortcut for the Crown to establish an accused’s motives for failing to stop. In this case for example, an all-terrain vehicle driver was convicted of failing to stop at the scene of an accident, among other offences, after he crashed into another person. The provincial court judge said: “The evidence establishes that Mr. Spence [the accused] failed to provide assistance to Mr. Atkins or provide his name and address. As a result, the presumption of leaving to escape liability applies. The evidence presented has not rebutted this presumption.”
Presumption in hit and run cases only applies when there is no “evidence to the contrary” about why a person did not fulfill their s. 252 duties. While evidence to the contrary might be enough to prevent a Court’s reliance on presumption, it is not necessarily a defence against the offence of failure to stop because the Crown might still be able to prove, beyond a reasonable doubt, an accused’s intent.
What happened in the Court of Appeal of Yukon ruling?
As I mentioned earlier an interesting case out of the Court of Appeal of Yukon helps to illustrate the issue of presumption in hit and run cases and when it does and does not apply. In R. v. Kloepfer a driver, Mr. Kloepfer, was convicted of two counts of failing to stop at the scene of an accident and dangerous driving charges after he allegedly swerved on a gravel road near his property, injuring two of his neighbours.
At trial, the judge convicted Mr. Kloepfer of failure to stop at the scene on the grounds that he was involved in a motor vehicle accident and he did not immediately stop to give his name, address or offer assistance, saying “There is no evidence to the contrary that his intent was other than to escape liability. Accordingly, I find him guilty of both counts as charged.”
However, the Court of Appeal granted Mr. Kloepfer’s appeal against the failure to stop charges and set aside the conviction because there was in fact evidence that after the accident the accused contacted the police. This amounted to evidence to the contrary and therefore the presumption on Mr. Kloepfer’s intent did not apply.
On this basis, the Court was then required to decide whether the Crown had established beyond a reasonable doubt whether Mr. Kloepfer intended to escape liability. Since this had not been established by the trial judge, the conviction was set aside. The Court of Appeal judge said: “Without reliance on the presumption in s. 252, there is no evidence upon which a properly instructed trier of fact could reasonably conclude that the appellant left the scene of the accident with the intent to escape civil or criminal liability.”
In the heat of the moment, if you fail to stop at the scene of an accident in which you are involved, you can be saved if you are able to show you are not trying to avoid liability. If you fail to fulfill your duties following an accident, it is imperative you do something to prove you are not simply trying to escape detection.