How Can a Hit and Run Charge Be Defended?

Fighting a Charge of Failure to Remain At An Accident Scene, Commonly Referred to As 'Hit and Run', Involves Various Legal Defence Strategies Intended to Give Rise to a Reasonable Doubt That the Accused Driver Is Guilty As Alleged. The Best Strategy to Use Will Depend Upon the Unique Circumstances of Each Case.

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Understanding the Charge of Failing to Remain At the Scene of An Accident (Hit & Run) Including the Potential Penalties

Black Automobile Damaged With Driver Sitting Outside Holding Head When an accident occurs a driver must remain at the scene or promptly return to the scene of the accident.  At the scene of the accident, a driver is required to provide assistance to anyone injured, if necessary. Additionally, all drivers involved within an accident must exchange certain information including name, address, licence number, insurance company and policy number, vehicle licence plate number, among other relevant things including the name and address for the owner of the vehicle if such is a person or entity different than the driver.

The Law
When Must a Driver Stay at An Accident Scene

The actual legal specifics regarding the offence of failing to remain at the scene of an accident or failing to return to the scene of an accident, commonly referred to as 'hit and run', are as stated per section 200 of the Highway Traffic Act, R.S.O. 1990, c. H.8 where it is said:

Duty of person in charge of vehicle in case of accident

200 (1) Where an accident occurs on a highway, every person in charge of a vehicle or street car that is directly or indirectly involved in the accident shall,

(a) remain at or immediately return to the scene of the accident;

(b) render all possible assistance; and

(c) upon request, give in writing to anyone sustaining loss or injury or to any police officer or to any witness his or her name, address, driver’s licence number and jurisdiction of issuance, motor vehicle liability insurance policy insurer and policy number, name and address of the registered owner of the vehicle and the vehicle permit number.


(2) Every person who contravenes this section is guilty of an offence and on conviction is liable to a fine of not less than $400 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition the person’s licence or permit may be suspended for a period of not more than two years.

What Is the Punishment For Failing to Remain At the Scene of An Accident

As shown, the failure to remain or return to the scene of an accident is an offence that is treated very harshly with significant penalties that include a fine between four hundred ($400) dollars and two thousand ($2,000) dollars plus victim surcharge per the Victim Fine Surcharges, O. Reg. 161/00 and court cost.  Additionally, a jail term of six (6) months and the licence of the driver may be suspended for two (2) years.  Furthermore, the driver receives seven (7) demerit points per the Demerit Point System, O. Reg. 339/94 and may, and likely will, be subjected to very significant insurance rate increases.

Defence Strategy
How to Fight a Traffic Ticket Charge For Failing to Remain At the Scene of An Accident

A driver charged with the offence of failure to remain at an accident scene or failure to return to an accident scene may be successful in fighting the charge by forcing the prosecution to prove beyond a reasonable doubt that, among other things:

  • The driver charged is the driver who was actually involved; and
  • The occurrence of the accident as alleged.

The burden of proof upon the prosecution is very well summarized in the case of R. v. Found, 2011 ONCJ 167 where it is said:

82.  With regard to the charge of failing to remain at the scene of an accident, R. v. Hill 1972 CanLII 670 (ON SC), [1972] 2 O.R. 402, 17 C.R.N.S. 124, 6 C.C.C. (2d) 285 (H.C.) was affirmed in 1973 by the Supreme Court of Canada. That decision reads: “On a charge under the section it is sufficient to prove that two vehicles have touched; proof of knowledge of damage is not required.”

83.  R. v. Racimore (1975) 1975 CanLII 1478 (ON SC), 25 C.C.C. (2d) 143 (Ont. H.C.) says failing to remain was held not to be an offence requiring mens rea but where the defendant had no knowledge of contact with the other vehicle, he ought to be acquitted as the actus reus in failing to remain was involuntary.

84.  R. v. Huntley [2006] O.J. No. 4549 2006 ONCJ 432 72 W.C.B. (2d) 373 deals both with careless driving and failure to remain at the scene of an accident. Huntley says the prosecution must first prove that an accident involving the defendant's motor vehicle had occurred beyond a reasonable doubt before it can prove that the defendant had committed the offences of failing to remain under s. 200(1)(a).

85.  The existence of an accident involving the defendant's motor vehicle is an element of those two offences. In order to prove that the defendant's motor vehicle was involved in an accident the prosecution must prove that the defendant's vehicle had collided – Huntley involved a collision with a pedestrian – and by having done so, may also establish that the defendant had committed the offence of careless driving for the particular circumstances of the case.

86.  Huntley states that generally an accident is an event where there is a motor vehicle collision with another vehicle, object, animal or person. Huntley determined someone directly or indirectly involved in an accident has an obligation to remain at or return to the scene of an accident under s. 200(1) (a), regardless of the quantum of damage to property or the degree of personal injury that results from the accident. To prove the charge related to failing to remain it is essential that the prosecution prove there was a motor vehicle accident involving the defendant's vehicle on the date, time and location in question.

87.  Huntley states the obligation on the defendant to remain at or immediately return to the scene of the accident under s. 200(1) (a) of the Highway Traffic Act is dependent on whether the prosecution can prove that the defendant was directly or indirectly involved in an accident, or in particular, that he had been driving a vehicle that had collided with another motor vehicle.

Beyond using a defence strategy that places the burden upon the prosecutor to prove beyond reasonable doubt that the driver charged with failing to remain at an accident scene or failing to return to an accident scene was actually involved in the alleged accident, a positive defence outcome may also result from the use of other strategies that are applicable even where the prosecutor can prove that the accused driver did leave the scene of accident.  These other defence strategies include what is known as the defence of necessity as well as the defence of emergency, among other things; and accordingly, if the defence shows that failing to remain at an accident scene or failing to return to an accident scene was reasonable in the circumstances, then the charge against the driver should be withdrawn by the prosecutor or dismissed by the court.

Summary Comment

Failing to remain at the scene of an accident or failing to return to the scene of an accident is a charge that is treated very seriously with potential for a significant fine, victim surcharge, and court cost in addition to the potential of jail for a period of up to six (6) months.  Upon a conviction, a driver also receives seven (7) demerit points and most likely is also penalized with harsh insurance rates for three (3) years.

Whereas upon a conviction for failing to remain at the scene of an accident, or failing to return to the scene of an accident, comes with such severe punishments, if you are accused of this offence, obtain a professional legal opinion regarding your defence options as promptly as possible.

Learn More About
Failing to Remain

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