Description

The following article was written by David W. Hay (http://www.rbs.ca/lawyers/hay.html). David is a litigator whose preferred areas of practice include personal injury, commercial, entertainment and insurance litigation. He has extensive experience in cycling advocacy work and has advised cyclists and cycling advocacy groups for years.

David's preferred areas of practice are: Personal Injury, Commercial, Entertainment and Insurance Litigation.

What is an "Accident"?

A surprisingly common traffic phenomenon involving cyclists is the so called "Hit and Run". Cyclists involved in contact with automobiles are seldom in a position to chase the car after the contact. In my experience, drivers often conduct their own quick assessment of the damage to the bicycle and/or injury to the person, with a view to leaving the scene of the accident if satisfied the contact was relatively harmless.

In a previous article I stressed the importance of doing everything one can to identify the driver and/or owner of the vehicle for purposes of an injury claim. But if there is no evidence of injury or property damage arising from a collision, how does the law respond when the driver leaves the scene of an accident?

This issue was reviewed in a fascinating decision by Mr. Justice Maczko in Regina v Chase, an appeal from a criminal conviction.

The starting point in the analysis is the criminal code which provides:

Failure to stop at a scene of accident

252. (1) Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft 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, vessel, or if possible, the aircraft, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance.

The central issue in R. v Chase was whether or not an accident had occurred within the meaning of the Criminal Code, despite an absence of injury or damage. Let us review the facts.

The complainant was a cyclist who was stopped at an intersection straddling her bicyclist. Mr. Chase had come up from behind the complainant and told her to get out of the way or he would hit her. She refused and Mr. Chase moved his vehicle forward very slowly and touched the back wheel of the complainant's back wheel. It was agreed by all that the impact was minimal and caused no damage or injury. However, the law defines an assault as the least touching of another in anger. Accordingly, Mr. Chase was convicted of common assault. He did not appeal that conviction. He was also convicted of leaving the scene of the accident. From that conviction he brought the appeal before Mr. Justice Maczko.

In his Reasons for Judgment, Maczko J. considered the definition of accident and reviewed a number of sources concluding that "the literary definition of the word appears to encompass both injurious and non-injurious events." Mr. Chase argued that it was Parliament's intent to punish something other than mere trivial contact that may be intentional or unintentional. In effect, Mr. Chase argued that mere touching could not constitute "an accident" which could give rise to a criminal conviction. The complainant responded that Parliament could not have wanted drivers who intentionally strike cyclists with their vehicles to be able to flee the scene of the accident simply because they had the good fortune of not causing an injury or property damage. In reply to this argument, Mr. Chase contended that such an interpretation would lead to an absurd result in every day traffic. If no injury or damage were required for a criminal conviction, Mr. Chase contended that anyone attempting to park a car "by braille" would be required to leave their name and address, regardless of whether or not there was any damage, or face criminal punishment.

Maczko J. carefully considered the word "accident" as it has been interpreted in a number of decisions throughout Canada. After considering all of the authorities, his Lordship decided to take a broad view of the term accident. He held that the obligation under the Criminal Code provision prohibiting leaving the scene of the accident is "triggered by the collision itself, not by the existence of injury or damage". A case from the Maritimes was particularly persuasive in this regard. In that case, the Judge reasoned that unless the obligation to stay at the scene is engaged as soon as the collision occurs, then a driver could escape liability, either civil or criminal or both, in circumstances where the damage or injury may not be apparent to that driver at the scene, based on his or her own assessment. According to Maczko J., this would frustrate the intention of Parliament.

In my respectful view, the legal analysis of Maczko J. is absolutely sound. A failure to stop at a scene of an accident cannot be justified by the person leaving the scene on the basis that he or she observed no damage or injury. Common sense tells us that people responsible for accidents routinely reconstruct them as insignificant events. To allow a subjective standard to prevail in these circumstances would subvert Parliament's purpose.

The most extraordinary feature of R. v Chase is that the accident actually led to a police investigation resulting in a conviction. In my experience, it is extremely rare for the police to be involved in circumstances where there is no damage to person or property. In this case, because there was no injury or damage there was no civil remedy, that is, the complainant could not sue Mr. Chase for damages. The only remedy was obtained by resort to the criminal law. Clearly the police and Crown in R. v Chase were motivated by the increasing incidence of road rage against cyclists. The case in my view represents a victory in terms of the law being correctly applied.