Fail to Remain (Hit and Run) Charges in Ontario: What You Need to Know
A knock on the door from police hours — or even days — after you drove home. A phone call from an officer asking you to come to the station. A summons in the mail. This is how most people learn they have been charged with failing to remain at the scene of an accident, commonly called a “hit and run.” It is one of the most serious driving offences in the Criminal Code, carrying penalties that range from a two-year sentence all the way up to life imprisonment.
If you are facing a fail to remain charge in Barrie, Simcoe County, or anywhere in Ontario, this article will walk you through the law, the penalties, the elements the Crown must prove, and the defences that may be available to you. The single most important step you can take right now is to speak with a criminal defence lawyer before providing any statement to the police.
The Legal Definition: Section 320.16 of the Criminal Code
Failing to remain at the scene of an accident is defined under section 320.16 of the Criminal Code of Canada. The offence is committed when a person operates a motor vehicle and is involved in an accident with another person or vehicle, and then fails to stop, give their name and address, and offer assistance to anyone who appears to need it.
The wording of the section is deliberately broad. It captures three distinct obligations, all of which arise the moment an accident occurs:
- Stop at the scene — you must bring your vehicle to a halt as soon as it is safe to do so
- Provide your identity — you must give your name and address to anyone involved in the accident, or to a police officer
- Offer assistance — if anyone appears to be injured, you must offer to help or arrange for help
Failing to meet any one of these obligations is enough to ground the charge. You do not need to have caused the accident; you simply need to have been involved in it and then left without fulfilling your legal duties.
For a full overview of the offence and how our firm approaches these cases, see our fail to remain practice area page.
It Applies to Every Kind of Accident
One of the most common misconceptions about fail to remain is that it only applies to serious collisions involving injuries. This is wrong. Section 320.16 applies to any accident, regardless of severity:
- Property damage only — you clip a parked car in a parking lot and drive away
- Minor injury — a fender bender where someone reports whiplash
- Serious bodily harm — a collision that puts someone in hospital
- Death — a pedestrian or cyclist killed in a collision
The scope of the accident matters enormously for sentencing, but the legal obligation to stop is identical whether you scratched a bumper or caused a fatality.
Penalties for Fail to Remain
The penalties for failing to remain reflect Parliament’s view that fleeing an accident scene is a grave breach of civic duty. The maximum sentences escalate based on the consequences of the accident:
Summary Conviction (Minor Cases)
- Maximum two years less a day in jail
- Fine at the court’s discretion
Indictable Offence — No Bodily Harm or Death
- Maximum 10 years imprisonment
Where Bodily Harm Results
- Maximum 10 years imprisonment
Where Death Results
- Maximum life imprisonment
In addition to jail, a conviction will trigger a mandatory driving prohibition imposed by the sentencing court, which is separate from any administrative suspension by the Ministry of Transportation.
Even a first offence involving only property damage can result in a criminal record, a driving prohibition, and dramatically increased insurance costs. The stakes are serious in every case.
What the Crown Must Prove
To secure a conviction for fail to remain, the Crown must prove each of the following elements beyond a reasonable doubt:
1. Involvement in an Accident
The Crown must establish that the accused was operating a motor vehicle that was involved in an accident. This can be proven through witness testimony, surveillance footage, vehicle damage analysis, paint transfer evidence, or GPS data.
2. Knowledge of the Accident
This is often the most contested element. The Crown must prove that the accused knew, or ought to have known, that an accident occurred. If a driver genuinely did not realize a collision took place — for example, a large truck that made contact with a small object at highway speed — the Crown may have difficulty proving this element.
3. Failure to Stop and Comply With Legal Obligations
The Crown must show that after the accident, the accused failed to stop, failed to provide identification, or failed to offer assistance to anyone who was injured.
If the Crown cannot prove all three elements, the charge cannot stand. A skilled defence lawyer will scrutinize the evidence supporting each element and identify the weakest link in the Crown’s case. If you are unsure whether you need representation, read our article on why you need a lawyer for criminal charges.
Common Defences to Fail to Remain
Several well-established defences apply to fail to remain charges. The right defence depends entirely on the facts of your case.
Lack of Knowledge
If you genuinely did not know that an accident occurred, you cannot be convicted. This defence arises more often than people might expect: a driver who hits a curb or object in poor visibility, someone who felt a bump on a highway but saw nothing in their mirrors, or a situation where the contact was so minor that a reasonable person would not have recognized it as an accident.
Panic, Shock, or Psychological Overwhelm
The moments after an accident can trigger a fight-or-flight response. Some drivers leave the scene not out of malice or calculation, but because they are in genuine psychological shock. While panic alone may not be a complete defence, it can be relevant to the question of whether the accused formed the intent to flee, and it is a powerful mitigating factor at sentencing.
Safety Concerns
In some cases, remaining at the scene is dangerous. If an accident occurs in a high-crime area, if the other driver is aggressive or threatening, or if road conditions make stopping hazardous, a driver may be justified in leaving the scene — provided they report the accident to police promptly afterward.
Identity and Misidentification
In cases where the alleged hit and run was not directly witnessed — for example, damage to a parked vehicle in a lot — the Crown’s case may rest on circumstantial evidence like matching paint or vehicle damage. If the identification evidence is weak, the defence may challenge whether the accused was the driver at all.
Voluntariness and Charter Issues
Police often investigate fail to remain charges by contacting the registered owner of a suspect vehicle and asking them to come in for an interview. Statements made during these interviews can sometimes be challenged if your Charter rights were not properly respected — for instance, if you were not advised of your right to counsel before being questioned.
Fail to Remain vs. Dangerous Driving
Fail to remain is frequently confused with dangerous driving, but the two offences target very different conduct. Dangerous driving (s.320.13) is about how you drove — operating a vehicle in a manner that is dangerous to the public. Fail to remain (s.320.16) is about what you did after the accident — specifically, your failure to stop and fulfill your legal obligations.
A person can be charged with both offences arising from the same incident. For example, if you ran a red light, struck another vehicle, and then drove away, you could face charges for both dangerous driving and fail to remain. The dangerous driving charge addresses the collision itself; the fail to remain charge addresses your departure from the scene.
The distinction matters because the defences are entirely different. A strong defence to the dangerous driving charge (such as a mechanical failure) will do nothing to address the fail to remain charge, and vice versa.
Fail to Remain and Impaired Driving: A Common Pairing
Fail to remain and impaired driving charges are frequently laid together, and the combination creates unique legal issues that require careful attention.
Why They Are Charged Together
The most common scenario is straightforward: a driver who has been drinking or using drugs is involved in an accident and flees the scene to avoid detection. When police eventually locate the driver — sometimes hours later — blood alcohol evidence may be unavailable or stale. The Crown then relies on the fail to remain charge to address the flight from the scene, and pursues the impaired driving charge based on whatever evidence they can gather (witness observations of impairment before the accident, admissions, or circumstantial evidence).
The “Bolus Drinking” Defence
When a driver is located hours after an accident and provides a breath sample, the reading reflects their blood alcohol concentration at the time of testing — not at the time of driving. This opens the door to the bolus drinking defence: the argument that the driver consumed alcohol after the accident, meaning their BAC at the time of driving was lower than the breath test suggests, or that they were not impaired at all while behind the wheel.
This defence is common in fail to remain cases precisely because there is a gap between the time of driving and the time of testing. However, raising this defence can create a tension: if you say you went home and drank after the accident, you may inadvertently strengthen the Crown’s case that you knew an accident occurred and chose to leave. Your lawyer must navigate this carefully.
Strategic Considerations
The interplay between fail to remain and impaired driving charges means that the defence strategy for one charge must account for the other. An admission that helps you on the impaired charge may hurt you on the fail to remain charge, and vice versa. This is one of the strongest reasons to retain counsel early and avoid making any statements to police without legal advice.
MTO Consequences: Administrative Licence Suspension
Beyond the criminal penalties, a fail to remain conviction triggers consequences from the Ministry of Transportation of Ontario (MTO) that can be equally devastating for your daily life.
Upon conviction for a fail to remain offence, the MTO will impose an administrative licence suspension on top of any driving prohibition ordered by the court. For a first conviction, this is typically a one-year suspension. Repeat offenders face longer suspensions, and in some cases, the MTO may require you to complete the Ignition Interlock Program before your licence is reinstated.
The insurance consequences are also severe. A fail to remain conviction will appear on your driving record and can result in massive insurance premium increases or outright cancellation of your policy. For many people in Barrie and Simcoe County, where driving is essential for work and daily life, these administrative consequences can be just as life-altering as the criminal penalties.
For a more detailed breakdown of how criminal driving offences affect your licence and insurance, read our article on MTO consequences for criminal driving offences.
What to Do If You Are Charged
If you have been charged with fail to remain — or if you suspect you may be under investigation — here is what you should do immediately:
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Exercise your right to silence. Do not provide a statement to the police without first speaking to a lawyer. Anything you say can and will be used against you, and in fail to remain cases, even well-intentioned statements can create problems.
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Contact a criminal defence lawyer. The earlier you retain counsel, the more options are available. In some cases, early intervention by a lawyer — including facilitating voluntary contact with police or the other party — can make a significant difference in how the case is resolved.
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Preserve evidence. If you have dashcam footage, photographs of your vehicle, or records of where you were at the time of the alleged accident, save everything. Do not tamper with or repair vehicle damage until your lawyer advises you.
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Do not contact the other party directly. If the accident involved another person, all communication should go through your lawyer or through proper legal channels.
Contact Mor Fisher LLP
A fail to remain charge is a serious criminal offence that can result in imprisonment, a criminal record, a lengthy driving prohibition, and devastating insurance consequences. Whether your case involves a parking lot scrape or a fatal collision, the penalties are too severe to face without proper legal representation.
At Mor Fisher LLP, we defend clients throughout Barrie, Simcoe County, and across Ontario against fail to remain and all criminal driving charges. If you have been charged — or if police have contacted you about a hit and run investigation — call us immediately at 705-252-2828 or contact us online to schedule a consultation.