Driving Hit and Run

In a blink of an eye, your life could change forever with a hit and run charge. Hiring a lawyer ensures that there is an effective advocate on your side who will represent your interests.

What is a hit and run?

A hit and run is formally known as “failing to stop and remain at the scene of an accident” under section 320.16 of the Criminal Code of Canada. There are three types of hit and run charges:

• Failure to stop after your conveyance (such as a motor vehicle) was in an accident with another person or their motor vehicle;
• Failure to stop after an accident causing someone bodily harm; and
• Failure to stop after an accident causing the death of another person.

So, if you and your vehicle are involved in an accident with another person and/or their vehicle, you must stop and remain at the scene of the accident. You must give your name and address, and you must offer them assistance if they are injured.

There is no justification if you know that you have been in an accident, and you leave simply because you panicked or were scared.

Related charges that you may also be charged with include dangerous driving and impaired driving.

What is a conveyance?

Under section 320.11 of the Criminal Code, a conveyance refers to:

• a motor vehicle;
• a vessel;
• an aircraft; and
• railway equipment.

What if you didn’t know you were involved in an accident?

You are obligated to stay at the scene of the accident if you know that you were in an accident or were reckless as to whether the accident occurred. As soon as you are aware that you were just in an accident, you need to remain at the scene.

What does the Crown need to prove?

• You operated a conveyance (such as a motor vehicle);
• You were the driver and had care and control of your vehicle;
• Your motor vehicle was involved in an accident with another person or their vehicle;
• You were aware that you were in an accident or were reckless as to whether an accident occurred; and
• You failed to remain at the scene of the accident, give your name and address to the other parties involved, and offer assistance.

Arrest and bail:

Once police identify you and charge you, you may be released directly by police. That being said, if injury or death occurred, then you may be held for bail. If you are held for bail, you will be brought in front of a judicial official within 24 hours of your arrest. Not only will a lawyer tell you what to do and what not to do when interacting with police, they can also start working on your release if you are being held in custody.

If you are brought to court for bail, a lawyer can speak to the Crown about what is required to secure your release and can propose a bail plan. The plan often involves one or more people called “sureties.” A surety is someone you know who agrees to take responsibility for your release into the community. They pledge to pay a certain amount of money if you do not follow your conditions of release. Being a surety is a huge responsibility, and the top criminal lawyer can explain their role and adequately prepare them for court.

Everyone has a constitutional right to reasonable bail with respect to the amount of money sureties pledge and the conditions imposed on you. Reasonableness also includes the fact that you should not be denied bail without “just cause.”

The Crown may consent to your release based on the plan. If they have concerns about the plan, the circumstances of the offence, your chance of reoffending, your ability to follow conditions (especially if you have breached bail before), et cetera, they may contest your bail. A contested bail results in a bail hearing (also known as a “show cause” hearing). In line with the principles of reasonable bail, the Crown must “show cause” as to why it is in society’s best interest for you to be detained—although there are certain circumstances that require the accused to demonstrate why their detention is not justified.

There are three grounds of detention upon which you can be denied bail. The Crown will state on which grounds they are seeking detention, which consider:

• • Whether you are a flight risk (primary ground);
  • Whether you pose a threat to the public (secondary ground); and
  • Whether your detention is required to maintain confidence in the administration of justice (for example, due to the seriousness of the allegations and/or the strength of the Crown’s case) (tertiary ground).

The court will look at factors, such as your ties to the community, your personal situation (including the presence of a criminal record), the offence itself, and the strength of a proposed bail plan and adequacy of sureties, when considering these grounds.

As part of considering your release, the court will determine whether conditions should be imposed and what they should be to mitigate concerns, such as ensuring that you attend court and do not commit any further offences. These bail conditions can be stringent and restrictive and may include, but are not limited to:

• • Supervision through sureties;
  • Curfews or house arrest, including ankle monitoring;
  • Refraining from use of drugs and alcohol;
  • Mandatory counselling;
  • No contact with certain individuals, such as the victim; and/or
  • Restrictions on where you can travel.

With driving offences, a driving prohibition may also be made.

When making this consideration, the Crown and the court are bound by the “ladder principle.” This principle means that when it comes to imposing conditions, the least restrictive conditions must be imposed unless the Crown can show that the less restrictive conditions are not appropriate in your case. The Supreme Court of Canada’s 2017 decision in R. v. Antic reinforced this principle. A number of courts, however, seem to have forgotten this obligation. A criminal appellate lawyer can help the court recognize that your detention is not necessary and can remind the court why less strict bail conditions are appropriate.

If you are denied bail, you will remain in custody until your trial or resolution, although it is possible to ask for a bail review at the Superior Court. Obtaining bail can be an uphill battle. Hiring a lawyer maximizes your chances of being released.

It is important to recognize that breaching the terms of your bail conditions can result in further charges against you and the revocation of your bail.

Awaiting trial:

Once you are released by police or a bail hearing is conducted, a lawyer can start preparing a successful defence for your case.

A lawyer will ask the Crown for the disclosure of all relevant evidence against you. The Crown is obligated to disclose evidence about your case to your lawyer, regardless of whether or not that evidence will be used by the Crown in court. This disclosure is a fundamental feature of our criminal justice system. It helps to ensure that you have a fair trial and that you have the information needed to provide a full answer and defence.

In some cases, disclosure can include hundreds (and sometimes thousands) of pages of documents, as well as hours of police interviews and surveillance footage. A lawyer will review these documents and can use them to effectively advocate for you.

A lawyer will then take steps to move the case along. Once disclosure is reviewed, a Crown pre-trial (CPT) is typically scheduled. The CPT allows the defence and the Crown to discuss issues in the case, as well as the Crown’s position. The CPT can be a springboard for further discussions and negotiations with the Crown. In fact, negotiations with the Crown can be crucial in driving offences and a lawyer is best placed to have these discussions. Depending on the case and how it proceeds, a judicial pre-trial (JPT) may also take place. The JPT allows a judge to weigh in and provide guidance in a more informal setting.

If you have retained a lawyer, you will not be present at the CPT or JPT. A lawyer’s expertise and experience can be invaluable at this stage. If you do not retain a lawyer, you most likely will have more difficulty speaking to the Crown, and your JPT will take place in open court instead of the judge’s chambers. You will be responsible for advocating for yourself, which can be an unnecessary stress added to an already challenging experience.

There can be a number of court appearances before a case is set down for trial or resolved. A lawyer can explain the purpose of these appearances and even appear on your behalf, so you have one less thing to worry about.

If you cause death, or if the Crown chooses to proceed by way of indictment and the case goes to trial, there will come a time when you will be asked to make an election regarding your mode of trial. You will have the option of being tried by a provincial court judge, a judge alone in the Superior Court, or a judge and jury in the Superior Court. Since causing bodily harm or death carry possible sentences of 14 years or more in prison, you will also be entitled to a preliminary inquiry, which is a sort of mini-trial that determines whether there is sufficient evidence to even hold a trial on the charges. If the judge finds that there is not sufficient evidence, then you will be discharged. Making your election and having a preliminary inquiry are strategic decisions. You will no doubt benefit from the support of a lawyer advising and guiding you through this lengthy and complicated process.

Consequences if found guilty:

A hit and run charge carries with it the potential for very severe penalties if you are convicted. It can affect your daily life and livelihood. For a hit and run charge, you could face a maximum sentence of two years less a day and/or a fine of up to $5,000 if the Crown proceeds by summary conviction. If they proceed by indictment, then you could face a sentence of up to 10 years. If you cause bodily harm, the Crown also has the ability to elect, but the maximum sentence by indictment is 14 years, with a minimum fine of $1,000 for a first offence. If you cause death, the Crown can only proceed by indictment, you could face a sentence of life in prison, with a minimum fine of $1,000 for a first offence. You can also face a driving prohibition.

A lawyer can evaluate your case and obtain the best possible outcome in the circumstances.

It’s vital to hire a lawyer

Being charged with a criminal offence, such as failing to remain, is a stressful and tolling experience. It is important to seek professional advice from a lawyer about your rights from the beginning.

A lawyer can also do much more. They can:

• Work to secure your release with the most favourable conditions;
• Help you navigate the criminal justice system;
• Ensure that the Crown meets its disclosure obligations;
• Identify systematic or administrative errors in the criminal process, including Charter rights violations;
• Speak to the Crown on your behalf, negotiate, and advise you of your options;
• Assess all the evidence against you and build a strong defence, so the charges are withdrawn or you are acquitted;
• Gather further evidence to support your version of the events;
• Obtain a more lenient sentence in the event a guilty plea or conviction is entered.

All criminal cases are complex and fact specific. We have provided general information about how hit and run cases are handled. Hiring a lawyer provides your best chance at mounting a successful defence. For more information about how we can help, please contact our team.