The offence of Fail to Remain or Fail to Stop.

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The offence of Fail to Remain or Fail to Stop.

The offence of Fail to Remain or Fail to Stop is more commonly known to the general public as “hit and run”.

The law imposes three duties on anyone who has care, charge or control of a motor vehicle, vessel or aircraft which is involved in an accident with another person, vehicle, vessel or aircraft or cattle in the charge of another person.  Those duties are:

  1. stop the vehicle, vessel or, if possible, the aircraft;
  2. give your name and address; and
  3. where any person has been injured or appears to require assistance, offer assistance.

If any one of the above three duties are not met with intent of escaping civil or criminal liability, the accused is guilty of “hit and run” with a maximum punishment of five years imprisonment.  If in the same circumstances, the accused knows that bodily harm was caused to another person involved in the accident, the maximum punishment goes up to ten years and if the accused knows that another person involved in the accident is dead or if the accused knows that bodily harm was caused to another person involved in the accident and is reckless as to whether death will result from such bodily harm and death in fact so results, the maximum punishment goes all the way up to life imprisonment.

To make matters even worse, the law presumes that the accused had the intent of escaping civil or criminal liability from the very fact of failure to discharge any of the above three duties in the absence of evidence to the contrary.

So, what do you do if you are charged with “hit and run”?  Run to the lawyer, of course.  Why?  Because as grave as the offence sounds, there are potential defences to any offence which have to be explored before or rather instead of giving up.

Don’t forget that the Crown must prove your guilt beyond a reasonable doubt, you don’t have to prove your innocence.  In the context of “hit and run” offences, this means first of all that the Crown must prove you are the person in charge, care or control of the vehicle, vessel or aircraft.  Typically we are dealing with cases involving motor vehicles and person in charge, care or control means the driver.  In the caotic aftermath of an accident, it is often impossible to prove who that driver actually was.  If such proof is absent, the charge must fail.

In some cases, there is insufficient evidence that you knew you were involved in an accident.  Crown has to prove that you knew or were aware of the accident in order to prove your guilt.  While in many cases, it is simply impossible to be unaware of the accident, there are situations where the evidence on this point is obscure and susceptible of different interpretations.  Suppose a person drives at night on a dark road and runs over something which may be an object but, considering the “quality” of many roads in GTA, may be simply a surface defect.  It turns out that this was actually a pedestrian who was lying on the road for some reason, say drunk or fainted.  In these circumstances you may have a viable defence based on lack of knowledge that you were involved in an accident.  In some cases, however, knowledge may be imputed by doctrine of “wilful blindness” when the accused has serious suspicion he is involved in an accident but chooses to remain ignorant.  Special care must be taken by the defence to refute evidence pointing to this conclusion.

Furthermore, the failure to perform one of the three duties imposed by law may be justified by some circumstances including, for instance, your own injuries, condition of shock and emotional distress, lack of knowledge of English, etc.  This can serve as “evidence to the contrary” which tends to displace the presumption of intent to escape civil or criminal liability on the part of the accused.Ernst Ashurov-legal advice

In addition, it is important to remember that to be found guilty the accused must fail to discharge one of the three duties with intent to escape civil or criminal liability and many courts held that this liability should relate to the accident in question and not to some other offence.  For instance, people were acquitted of “hit and run” when it was shown that they tried to escape from the scene of an accident because of some totally unrelated crimes they were wanted for.  Ironic as it may sound, running from the law may sometimes afford a defence.

Author: Ernst Ashurov

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