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Milligan's Criminal Law Advisor | Failure to Stop

 Milligan's Criminal Law Advisor | Failure to Stop

Accused may be convicted of failure to stop when he or she did not cause the accident

Milligan’s Criminal Law Advisor

By Jeffrey Milligan

In a recent appeal, the British Columbia Court of Appeal shed light on the mens rea requirement of the offence of failing to stop at the scene of an accident under s. 252 of the Criminal Code.

Just as importantly, they also held that counsel need not obtain the instructions of his or her client to admit, after all the evidence has been tendered, that the Crown has proved some or all of the offences charged.

Mr Seipp was charged with eight Criminal Code offences arising from a break and enter into a dwelling house that belonged to the Davidsons in which one of their cars and some other property was stolen. The offences with which he was charged included: break, enter and theft; theft and possession of a motor vehicle; fraud for using a stolen debit card; fraudulent use of a stolen credit card; possession of a stolen cell phone, television and wallet; failing to stop at the scene of an accident.

The trial judge convicted him of fraudulent use of the credit card, of fraudulent use of stolen debit card, of possession of a stolen motor vehicle and of failing to stop at the scene of an accident.

Mr Seipp appealed only the conviction for failing to stop at the scene of an accident.

Someone broke into the Davidsons’ house and stole their television, a wallet, debit card and credit card, a cellphone and Mrs Davidson’s car.

Later that morning, the debit card was used to buy gasoline and make several withdrawals from a chequing account. Mr Davidson decided to drive around the neighborhood in search of the car on the chance that it may have been abandoned. He saw the stolen car being driven by the appellant. He pursued it and tried to overtake it. A collision ensued and Mr Seipp fled without providing his name or address.

A surveillance video showed Mr Seipp using a debit card stolen from the Davidsons’ home and Mr Davidson identified Mr Seipp from a photo line-up.

The central issue in the trial was identification. The Crown’s theory was that Mr Seipp committed the break and enter of, and thefts from, the Davidsons’ home, and then was involved in the accident and fled because he did not want to be caught for the break-in and other offences he had committed.

Mr Seipp testified in his defence.

He denied breaking into the Davidsons’ home and stealing anything from them. He admitted to driving their car and using the debit card under suspicion that both were stolen. He said that a friend had dropped by his house early one morning and invited him to drive the car that she had acquired. After dropping her off, he continued to joyride until the collision with Mr Davidson. In direct examination, he said that he fled because he suspected the car was stolen and did not wish to be present when the police arrived. He gave no other reason for fleeing the accident scene.

At the end of the defence evidence, the defence counsel was asked if she could admit that the evidence established guilt on any of the counts. Without seeking her client’s instructions, she admitted that the Crown had satisfactorily proven that her client had committed the offences of possession of a stolen car and failing to stop. Believing that Mr Seipp’s evidence that he did not break into the Davidsons’ home or steal their property might be true, the judge acquitted him of those offences, but convicted him of the offences conceded by defence counsel and of fraudulent use of the credit and debit cards.

The judge found that Mr Seipp’s driving was not the cause of the accident he had with Mr Davidson.

The appellant argued at his appeal that, notwithstanding the concession from the defence counsel, the trial judge erred in imposing a conviction for the failing to stop charge because Mr Seipp’s driving was not a cause of the accident. Criminal provisions must be narrowly interpreted. Thus, the argument goes, there was no legal basis to conclude that he fled to escape liability for the accident. The appellant also pleaded that the concession on the part of his trial counsel was an error that amounted to ineffective assistance on her part.

His lawyer deposed in an affidavit that was entered in the appeal that she did not realize that the offence of failing to stop at the scene of an accident required proof of an “intent to escape criminal or civil liability” and she should not have admitted that her client committed this offence. The “mistake”, she deposed, “was entirely my own”.

Section 252(1) and (2) provide as follows:

(1) Everyone commits an offence who has the care, charge or control of a motor vehicle . . . that is involved in an accident with
(a) another person;
(b) a vehicle, vessel or aircraft; or
(c) in the case of a vehicle, cattle in the charge of another person,
and with intent to escape civil or criminal liability fails to stop the vehicle . . . give his name and address and where any person has been injured or appears to require assistance, offer assistance.
(2) In proceedings under subsection (1), evidence that an accused failed to stop his vehicle . . . offer assistance where any person has been injured or appears to require assistance, and give his name and address is, in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability.

The British Columbia Court of Appeal held that this section required a driver who is involved in a motor vehicle accident to take three steps: stop; give his or her name and address; and offer assistance if anyone is hurt or appears to need assistance.

Proof of failure to do any one of these steps, they observed, gives rise to a rebuttable presumption with respect to the driver’s intent: R. v. Roche, [1983] 1 S.C.R. 491, 1983 CarswellBC 681 (S.C.C.) at paras. 496-7. In the absence of evidence to the contrary, a court is entitled to infer that someone who is involved in a motor vehicle and who does not take at least one of the required steps had the requisite intent to escape liability.

After a lengthy review of the case law and legislative history of the provision, the British Columbia Court of Appeal noted that drivers should not be free to leave the scene of an accident even if they are not at fault for the accident. To quote Madam Justice Bennett, who wrote for a unanimous panel, at para. 44:

The object of the Code offence is to provide a penal incentive for a driver who is involved in an accident, regardless of whether they are at fault to remain at the scene, provide their name and address, and offer assistance if another person appears to be injured or in need of assistance. The liability a driver seeks to evade is not narrowly construed as solely arising from the consequences of the accident itself, but must also encompass offences connected to the driving, such as impaired driving, driving while suspended, criminal negligence and dangerous driving.

The Court of Appeal decided to apply the test enunciated by Borins J. (as he then was) in R. v. Benson (1987), 50 M.V.R. 131, 1987 CarswellOnt 62 (Ont. Dist. Ct.) and they quoted him, at para. 46, with approval:

. . . civil or criminal liability should be broadly interpreted to include any liability, civil or criminal, which might properly arise from the operation of a motor vehicle by the defendant at the time the accident takes place . . .

Thus, because Mr Seipp did not want to be identified as a driver when he was knowingly in possession of a stolen car, his flight from the scene of the accident was to escape criminal liability and he was properly convicted of the offence under s. 252. His explanation, even if accepted, afforded him no defence to the charge. Thus, the trial judge committed no error in convicting him and the trial lawyer committed no error in conceding that a conviction should be entered.

Moreover, the Court of Appeal found that she did not need her client’s instructions to make the admission after all the evidence was tendered. As Bennett J.A. put it at para. 51,

. . . conceding an offence has been proved after hearing the evidence is within the ambit of counsel; it is a legal decision. It is not on the same footing as entering a guilty plea to the offence which would require instructions.

R. v. Seipp, 2017 BCCA 54, 2017 CarswellBC 226 (B.C. C.A.)
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