{"id":8795,"date":"2018-02-15T21:44:58","date_gmt":"2018-02-16T02:44:58","guid":{"rendered":"https:\/\/www.doyonavocats.ca\/?p=8795"},"modified":"2019-07-28T10:36:44","modified_gmt":"2019-07-28T14:36:44","slug":"accident-intention-evade-liability","status":"publish","type":"post","link":"https:\/\/www.doyonavocats.ca\/en\/accident-intention-evade-liability\/","title":{"rendered":"The legislation (s. 252) was clearly intended to provide penal consequences for those who avoid an investigation for impaired driving by fleeing the scene : R. c. Seipp, 2018 CSC 1"},"content":{"rendered":"

R. c. Seipp, 2018 CSC 1<\/a><\/p>\n

La mens rea<\/i> d\u00e9crite par\u00a0 l\u2019expression \u00ab\u00a0intention d\u2019\u00e9chapper \u00e0 toute responsabilit\u00e9 civile ou criminelle\u00a0\u00bb au par. 252(1) du C.cr.<\/h2>\n

Selon la preuve invoqu\u00e9e par M. Seipp, il a fui les lieux afin d\u2019\u00e9viter d\u2019\u00eatre tenu criminellement responsable de possession d\u2019un v\u00e9hicule vol\u00e9. Il ne s\u2019agit pas d\u2019une preuve contraire. Cet \u00e9l\u00e9ment prouve plut\u00f4t que M. Seipp voulait \u00e9chapper \u00e0 toute responsabilit\u00e9 civile ou criminelle d\u00e9coulant de la garde, de la charge ou du contr\u00f4le d\u2019un v\u00e9hicule impliqu\u00e9 dans l\u2019accident. Une telle intention correspond \u00e0 la mens rea<\/i> d\u00e9crite par\u00a0 l\u2019expression \u00ab\u00a0intention d\u2019\u00e9chapper \u00e0 toute responsabilit\u00e9 civile ou criminelle\u00a0\u00bb au par. 252(1)<\/a>. En cons\u00e9quence, M. Seipp n\u2019a subi aucun pr\u00e9judice du fait qu\u2019au proc\u00e8s son avocat a admis que les \u00e9l\u00e9ments de l\u2019infraction avaient \u00e9t\u00e9 \u00e9tablis. Pour ces motifs, l\u2019appel est rejet\u00e9.<\/p>\n

R. v. Seipp, 2017 BCCA 54\u00a0<\/a><\/p>\n

Being involved in an accident and fleeing to evade liability for driving a stolen motor vehicle, like driving while one\u2019s licence is suspended, or driving while impaired, is conduct and intent that is intended to be included in this legislation<\/h2>\n

<\/p>\n

[<\/a>30]\u00a0\u00a0 \u00a0\u00a0 \u00a0 Section 252(2)<\/a> requires a driver who is involved in an accident to: (i) stop, (ii) give their name and address, and (iii) offer assistance if a person appears injured or in need of assistance. A driver is required to complete all three steps. Proof of failure to perform any one of these three acts will trigger a rebuttable presumption with respect to the driver\u2019s intent. See R. v. Roche<\/i>, 1983 CanLII 130 (SCC)<\/a>, [1983] 1 S.C.R. 491<\/span> at paras.\u00a0496-97<\/span>. The evidence need only raise a reasonable doubt that the driver did not have the requisite intent. See R. v. Proudlock<\/i>, 1978 CanLII 15 (SCC)<\/a>, [1979] 1 S.C.R. 525<\/span> at 551<\/span>.<\/p>\n

[<\/a>31]\u00a0\u00a0 \u00a0\u00a0 \u00a0 Therefore, failure to perform any of the three requirements is sufficient to form the actus reus<\/i> of the offence and trigger the presumption of intent to escape criminal or civil liability. The mens rea<\/i> may be proved by the presumption of intent in the absence of evidence to the contrary.<\/p>\n

[<\/a>32]\u00a0\u00a0 \u00a0\u00a0 \u00a0 There are two approaches in the jurisprudence for what is meant by \u201cintent to escape civil or criminal liability\u201d and what amounts to \u201cevidence to the contrary\u201d. One approach limits the intent required to the intent to avoid the legal consequences of the accident itself; the other includes the course of conduct leading up to the accident. Neither approach includes the evasion of criminal conduct at large as meeting the intent requirement.<\/p>\n

[<\/a>33]\u00a0\u00a0 \u00a0\u00a0 \u00a0 In Fournier c.\u00a0R<\/i>, (1979), 8 C.R. (3d) 248 (Q.C.C.A)<\/span><\/span>, the court considered the intent requirement in s.\u00a0233 [now s.\u00a0252<\/a>], and said, at 254 (translated):<\/p>\n

\n

I would add, that in my opinion, the civil or criminal responsibility that one must intend to escape by leaving the scene of an accident must be related to the accident, and not refer to all civil or criminal responsibility previously or otherwise incurred, e.g. risk of arrest: for armed robbery.<\/p>\n<\/blockquote>\n

[<\/a>34]\u00a0\u00a0 \u00a0\u00a0 \u00a0 The case did not involve an armed robbery. By using this offence as an example, the court appears to exclude the intent to avoid liability for an act quite separate from the accident. The court found that the intent must be to escape responsibility related<\/u> to the accident.<\/p>\n

[<\/a>35]\u00a0\u00a0 \u00a0\u00a0 \u00a0 In R. v. Hofer<\/i>, (1982), 1982 CanLII 2378 (SK CA)<\/a>, 2 C.C.C. (3d) 236 (Sask.C.A.)<\/span><\/span>, the court specifically considered the mens rea<\/i> for the offence. The issue was whether the intent to escape civil or criminal liability only included liability arising from the \u201caccident itself\u201d. The court generally agreed with the above passage in Fournier<\/i>. It added that an accused can have more than one intent \u2014 for example, the intent to avoid liability unconnected to the accident as well as the intent required for the offence (at 239). Furthermore, the court found that the intent was not limited solely to the \u201caccident itself\u201d, but could include, for example, avoiding a charge of impaired driving, which \u201cdoes not technically arise out of the accident itself but arises out of the course of conduct leading up to the accident\u201d (at 240).<\/p>\n

[<\/a>36]\u00a0\u00a0 \u00a0\u00a0 \u00a0 In R. v. Benson<\/i>, (1987), 50 M.V.R. 131 (Ont. Dist. Ct.)<\/span><\/span>, Borins D.C.J. (as he then was), considered whether the presumption of intent was rebutted when the driver fled from the accident scene because his license was suspended due to unpaid fines and a bail condition and he did not want to be caught driving under suspension. Borins D.C.J. did not agree that this explanation amounted to evidence to the contrary. In his view, at 135, \u201ccivil 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 that an accident takes place\u201d. Borins D.C.J. clarified one of his findings from an earlier decision in R. v. Riopka<\/i> (1986), [1987] 45 M.V.R. 145<\/span> at 149-150<\/span>, wherein he found that leaving an accident scene to avoid being caught for theft of property from an employer was evidence to the contrary. He clarified in Benson<\/i> at 136 that the intention to avoid liability for a number of driving offences, including criminal negligence, failing to provide a breath sample, or driving while one\u2019s licence was suspended did not amount to evidence to the contrary.<\/p>\n

[<\/a>37]\u00a0\u00a0 \u00a0\u00a0 \u00a0 In R. v. MacLean<\/i> (1982), [1983] 18 M.V.R. 275 (P.E.I. Sup. Ct.)<\/span><\/span>, McQuaid J., at 277 defined the liability more narrowly. He concluded that the liability must be incidental to and arising out of the accident in question. In his view, leaving a scene because one\u2019s driver\u2019s licence was suspended did not give rise to the accident nor was consequent upon it (at 277-278).<\/p>\n

[<\/a>38]\u00a0\u00a0 \u00a0\u00a0 \u00a0 More recently, Hill J. considered the intent requirement in R. v. Sanford<\/i>, 2014 ONSC 3164 (CanLII)<\/span><\/a><\/span>. Mr.\u00a0Sanford struck a cyclist at night. He stopped at the scene, but left, he said, to obtain water and blankets for the injured cyclist. A number of others had stopped to assist, and police, firefighters, and paramedics were on route. The trial judge rejected Mr.\u00a0Sandford\u2019s explanation that he had left to obtain aid for the victim. Instead, he concluded that he left the scene to avoid detection as a suspended driver. Hill J. at para.\u00a073 noted the correlation between accidents and suspended drivers as well recognized, citing R. v. Ladouceur<\/i>, 1990 CanLII 108 (SCC)<\/a>, [1990] 1 S.C.R. 1257<\/span> at 1280-81<\/span>, where the majority upheld random police road stops. He adopted the reasoning of Borins J., and concluded that a person who left an accident scene because his licence was suspended was attempting to avoid liability as a suspended driver, which fell within the ambit of the section.<\/p>\n

[<\/a>39]\u00a0\u00a0 \u00a0\u00a0 \u00a0 In R. v. K.J.F.<\/i>, 2009 BCCA 344<\/span> (CanLII)<\/a> at para.\u00a014<\/span>, Saunders J.A. in discussing the presumption in s.\u00a0252<\/a> said:<\/p>\n

\n

[14]\u00a0\u00a0 \u00a0\u00a0 Section 252(2)<\/a>, as counsel for the appellant submits, does not establish a positive obligation on the part of the driver to fulfill the three behaviours of stopping, providing a name and address and rendering assistance. Those obligations are the subject of a provision in the Motor Vehicle Act<\/a><\/i>, noncompliance with which is an offence under the Offence Act<\/a><\/i>. Rather, s.\u00a0252 prohibits a failure to fulfill these three actions with the intent of avoiding civil or criminal liability, and I say parenthetically, in connection with the accident.<\/p>\n<\/blockquote>\n

[<\/a>40]\u00a0\u00a0 \u00a0\u00a0 \u00a0 I note that the issue of whether the liability was in connection with the accident was not an issue before the court in K.J.F.<\/i>, and thus the parenthetical observation is, in my view, obiter<\/i>.<\/p>\n

[<\/a>41]\u00a0\u00a0 \u00a0\u00a0 \u00a0 If the provision is capable of more than one meaning, then the strict construction of penal statutes must be invoked. In Bell ExpressVu Limited Partnership v. Rex<\/i>, 2002 SCC 42<\/span> (CanLII)<\/a> at paras.\u00a028-30<\/span>, the application of the principle was stated as follows:<\/p>\n

\n

[28]\u00a0\u00a0 \u00a0\u00a0 Other principles of interpretation \u2014 such as the strict construction of penal statutes and the \u201cCharter<\/i> values\u201d presumption \u2014 only receive application where there is ambiguity as to the meaning of a provision. (On strict construction, see: Marcotte v. Deputy Attorney General for Canada<\/i>, 1974 CanLII 1 (SCC)<\/a>, [1976] 1 S.C.R. 108<\/span>, at p.\u00a0115<\/span>, per<\/i> Dickson J. (as he then was); R. v. Goulis,<\/i> (1981), 1981 CanLII 1642 (ON CA)<\/a>, 33 O.R. (2d) 55 (C.A.)<\/span>, at pp.\u00a059-60<\/span>; R. v. Hasselwander<\/i>, 1993 CanLII 90 (SCC)<\/a>, [1993] 2 S.C.R. 398<\/span>, at p.\u00a0413<\/span>; R. v. Russell<\/i>, [2001] 2 S.C.R. 804<\/span>, 2001 SCC 53<\/span>(CanLII)<\/a>, at para.\u00a046<\/span>. I shall discuss the \u201cCharter<\/i> values\u201d principle later in these reasons.)<\/p>\n

[29]\u00a0\u00a0 \u00a0\u00a0 What, then, in law is an ambiguity? To answer, an ambiguity must be \u201creal\u201d (Marcotte<\/i>, supra<\/i>, at p.\u00a0115). The words of the provision must be \u201creasonably capable of more than one meaning\u201d (Westminster Bank Ltd. v. Zang<\/i>, [1966] A.C. 182 (H.L.)<\/span>, at p.\u00a0222<\/span>, per<\/i> Lord Reid). By necessity, however, one must consider the \u201centire context\u201d of a provision before one can determine if it is reasonably capable of multiple interpretations. In this regard, Major J.\u2019s statement in CanadianOxy Chemicals Ltd. v. Canada (Attorney General)<\/i>, 1999 CanLII 680 (SCC)<\/a>, [1999] 1 S.C.R. 743<\/span>, at para.\u00a014<\/span>, is apposite: \u201cIt is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute<\/u>, that the courts need to resort to external interpretive aids\u201d (emphasis added), to which I would add, \u201cincluding other principles of interpretation\u201d.<\/p>\n

[30]\u00a0\u00a0 \u00a0\u00a0 For this reason, ambiguity cannot reside in the mere fact that several courts — or, for that matter, several doctrinal writers — have come to differing conclusions on the interpretation of a given provision. Just as it would be improper for one to engage in a preliminary tallying of the number of decisions supporting competing interpretations and then apply that which receives the \u201chigher score\u201d, it is not appropriate to take as one\u2019s starting point the premise that differing interpretations reveal an ambiguity. It is necessary, in every case, for the court charged with interpreting a provision to undertake the contextual and purposive approach set out by Driedger, and thereafter<\/u> to determine if \u201cthe words are ambiguous enough to induce two people to spend good money in backing two opposing views as to their meaning\u201d (Willis, supra<\/i>, at pp.\u00a04-5). [Emphasis added in Bell ExpressVu<\/i>.]<\/p>\n<\/blockquote>\n

[<\/a>42]\u00a0\u00a0 \u00a0\u00a0 \u00a0 In my view, there is no true ambiguity when one considers the context and object of the legislation. The Code<\/i> holds people responsible for intentionally committing prohibited acts or omissions, or for acting in a way that is objectively worthy of criminal censure. The case law generally finds that acts that are connected or related to the driving will be caught by the provision. In my view, there is no need to invoke the strict construction of penal statutes principle. The fact that the section has been interpreted in different ways by different judges does not mean there is a true ambiguity.<\/p>\n

[<\/a>43]\u00a0\u00a0 \u00a0\u00a0 \u00a0 It is clear from the debate on Bill C-82 (noted above), when the legislation was amended in 1999, that the legislature intended to capture impaired driving in this provision, conduct which may not necessarily be connected to or be causally related to the accident. The 1999 amendments support the broader interpretation given to the legislation in, for example, the decisions in Hofer<\/i> and Benson<\/i>. In my view, the course of conduct leading up to the accident must be included in order to capture impaired driving, which is clearly one of the purposes of the legislation.<\/p>\n

[<\/a>44]\u00a0\u00a0 \u00a0\u00a0 \u00a0 The object of the Code<\/a><\/i> 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.<\/p>\n

[<\/a>45]\u00a0\u00a0 \u00a0\u00a0 \u00a0 The next question is where does flight to avoid criminal liability for driving a vehicle knowing it was stolen fit into the scale of liability connected to the accident?<\/p>\n

[<\/a>46]\u00a0\u00a0 \u00a0\u00a0 \u00a0 The legislation was clearly intended to provide penal consequences for those who avoid an investigation for impaired driving by fleeing the scene. It also intended to provide penal consequences to persons who remain at the scene but do not offer to assist injured persons, and to provide penal consequences for those who attempt to hide their identities by failing to leave a name and address. A driver who commits these acts to escape civil or criminal liability arising from their driving has the requisite mens rea<\/i>. The liability contemplated in the section cannot be solely in relation to the cause of the accident, as the driver may not be at fault, but the driver is still required to comply with the legislation. I would adopt the test, as stated by Borins J. in Benson<\/i> at 136 that \u201ccivil or criminal liability should be broadly interpreted to include any liability, civil or criminal, which might properly arise from the operation of the motor vehicle by the defendant at the time the accident takes place<\/u>\u201d (emphasis added).<\/p>\n

[<\/a>47]\u00a0\u00a0 \u00a0\u00a0 \u00a0 As noted, the actus reus<\/i> of the offence can be committed in three ways. The broader mens rea<\/i> easily applies to the first two: both failing to stop a vehicle and failing to provide a name and address provide penal consequences to those who hide their identity as the driver to escape, for example, investigation for offences relating to driving, including impaired driving. The mens rea<\/i> does not as easily fit with a failure to offer assistance with the intent to escape civil or criminal liability. However, there are potentially hypothetical situations (although no cases that I have found), where a driver could desire the death of the only witness to the accident, and thereby not offer assistance and have the requisite intent for not doing so. It is an awkward test, and as defence counsel pointed out, it would benefit from an amendment. However, Mr.\u00a0Seipp is charged with the actus reus<\/i> of failing to give his name and address, and while the test I propose must work with all three acts underlying the offence, it does not need to be honed to perfection with the act of failing to offer assistance, as that does not arise on these facts.<\/p>\n

[<\/a>48]\u00a0\u00a0 \u00a0\u00a0 \u00a0 Mr.\u00a0Seipp did not want to be identified as the driver of the car, as he was knowingly in possession of a stolen automobile, and was driving it at the time he was involved in the accident. His flight from the scene was to avoid criminal liability in connection with a vehicle he was driving at the time of the accident<\/u>.<\/p>\n

[<\/a>49]\u00a0\u00a0 \u00a0\u00a0 \u00a0 It seems to me that, applying the Benson<\/i> test, being involved in an accident and fleeing to evade liability for driving a stolen motor vehicle, like driving while one\u2019s licence is suspended, or driving while impaired, is conduct and intent that is intended to be included in this legislation. Being the driver of a stolen car when involved in an accident, and fleeing to avoid detection as the driver, is, in my view, sufficiently related to the event to be captured by the intent of the legislation. Fleeing to avoid arrest as the driver of a stolen vehicle after an accident is therefore not evidence to the contrary, but falls within the criminal liability contemplated by the section.<\/p>\n

[<\/a>50]\u00a0\u00a0 \u00a0\u00a0 \u00a0 Thus, the explanation offered by Mr.\u00a0Seipp, even if accepted by the trial judge, would not have rebutted the presumption of intent. His counsel therefore did not commit an error in admitting that the elements of the s.\u00a0252 offence were proved beyond a reasonable doubt, and the trial judge committed no error in convicting him.<\/p>\n

[<\/a>51]\u00a0\u00a0 \u00a0\u00a0 \u00a0 Finally, Mr.\u00a0Seipp submits that counsel failed to obtain his instructions before admitting the elements of the offence. In these circumstances, 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 an offence, which would require instructions. I would not give effect to this argument.<\/p>\n","protected":false},"excerpt":{"rendered":"

R. c. Seipp, 2018 CSC 1 La mens rea d\u00e9crite par\u00a0 l\u2019expression \u00ab\u00a0intention d\u2019\u00e9chapper \u00e0 toute responsabilit\u00e9 civile ou criminelle\u00a0\u00bb au par. 252(1) du C.cr. Selon la preuve invoqu\u00e9e par M. Seipp, il a fui les lieux afin d\u2019\u00e9viter d\u2019\u00eatre tenu criminellement responsable de possession d\u2019un v\u00e9hicule vol\u00e9. Il ne s\u2019agit pas d\u2019une preuve contraire. […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[2],"tags":[],"yst_prominent_words":[],"acf":[],"_links":{"self":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/posts\/8795"}],"collection":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/comments?post=8795"}],"version-history":[{"count":0,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/posts\/8795\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/media?parent=8795"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/categories?post=8795"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/tags?post=8795"},{"taxonomy":"yst_prominent_words","embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/yst_prominent_words?post=8795"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}