Fail to Remain (Hit and Run) Defence

What Is Fail to Remain?

Fail to remain — commonly referred to as “hit and run” — is a criminal offence under Section 320.16 of the Criminal Code. It applies when a person involved in a motor vehicle accident fails to stop, give their name and address, and offer assistance to anyone who has been injured. The offence applies whether you are the driver or have care or control of the vehicle.

This charge is taken very seriously by the courts because leaving the scene of an accident can have devastating consequences — injured individuals may not receive timely medical attention, and the justice system relies on drivers remaining accountable.

The Offences and Penalties

The Criminal Code sets out escalating penalties based on the consequences of the accident:

Fail to Stop After Accident (Section 320.16(1))

The basic offence — failing to stop when you knew or ought to have known that an accident occurred involving your vehicle. This is a hybrid offence:

• Summary conviction: Maximum 2 years less a day
• Indictment: Maximum 10 years imprisonment
• Mandatory driving prohibition

Fail to Stop — Bodily Harm (Section 320.16(2))

Where the accident caused bodily harm to another person:

• Maximum 14 years imprisonment
• Mandatory driving prohibition

Fail to Stop — Death (Section 320.16(3))

Where the accident caused the death of another person:

• Maximum life imprisonment
• Mandatory driving prohibition

These penalties can exceed those for impaired driving causing death, reflecting Parliament’s view of the seriousness of fleeing the scene.

The Elements the Crown Must Prove

To convict you of fail to remain, the Crown must prove each of the following beyond a reasonable doubt:

1. You were involved in an accident — either as the driver or as a person having care or control of the vehicle.
2. You failed to stop, give your name and address, and offer assistance — the duty is to stop at the scene or return to it as soon as practicable.
3. You knew, or ought to have known, that the accident occurred — this is the critical mental element of the offence.

Each of these elements presents opportunities for the defence.

Our Defence Strategy

1. Lack of Knowledge

The most common and often the strongest defence. The Crown must prove that you knew or ought to have known that an accident had occurred. There are many situations where a driver may genuinely be unaware:

• Minor contact: A sideswipe, a bumper tap in a parking lot, or a brush with a mirror may not produce enough noise or impact for the driver to notice, particularly in a larger vehicle, with the radio on, or in heavy traffic.
• Environmental conditions: Rain, wind, loud traffic, construction noise, or road surface conditions may mask the sound or sensation of a collision.
• Vehicle characteristics: Larger vehicles (trucks, SUVs, commercial vehicles) may not register a minor impact the way a smaller car would.
• Distraction or focus: If your attention was legitimately directed elsewhere at the moment of the collision (checking a blind spot, navigating an intersection), you may not have been aware of the contact.

We present evidence of the circumstances — the nature of the collision, the conditions at the time, the vehicle involved, and any objective indicators of whether the collision was noticeable — to establish that you genuinely did not know.

2. Identity of the Driver

In many hit-and-run investigations, the police locate the vehicle — through license plate information, witness descriptions, or surveillance footage — but do not necessarily identify who was driving at the relevant time. We challenge the Crown’s evidence connecting you to the vehicle at the time of the accident:

• Was the vehicle registered to you, or to someone else?
• Who had access to the vehicle?
• Does the surveillance footage or witness description actually identify the driver, or merely the vehicle?
• Can the Crown exclude other potential drivers?

The Crown must prove beyond a reasonable doubt that you were the person operating the vehicle. If there is any reasonable doubt about identity, you must be acquitted.

3. Honest but Mistaken Belief

If you left the scene because you genuinely believed that no one was injured and no significant damage had occurred, this honest but mistaken belief may constitute a valid defence. For example:

• You stopped briefly, saw no visible damage, and continued on your way
• You checked your mirrors and saw the other vehicle continue driving, leading you to believe everything was fine
• The contact was so minor that you honestly believed it was inconsequential

We gather evidence to support the reasonableness and honesty of your belief, including the nature of the collision, the damage to both vehicles, and your actions immediately after the incident.

4. Fulfilling the Duty After the Fact

The law requires you to stop at the scene or return to it as soon as practicable. If you initially left but then returned to the scene, called 911, or reported the accident to police within a reasonable time, this can form the basis of a defence or a strong mitigating factor. We present a complete picture of your conduct, not just the initial departure.

5. Charter Challenges

We review the investigation for violations of your constitutional rights:

• Statements to police: Were you properly cautioned before being questioned? Were you given an opportunity to speak with a lawyer?
• Search warrants: Were warrants for your vehicle, your home, or surveillance footage properly obtained?
• Identification procedures: Were photo lineups or show-up identifications conducted fairly?

Evidence obtained in violation of your Charter rights may be excluded at trial.

6. Negotiation and Alternative Resolutions

In appropriate cases — particularly where the accident resulted in minor damage and no injuries — we negotiate with the Crown for resolutions that minimize the consequences. This may include a plea to a lesser offence, a peace bond, or a resolution that avoids a criminal record where the circumstances support it.

The Practical Consequences

A fail to remain conviction has serious practical ramifications beyond the criminal sentence:

• Driving record: Mandatory driving prohibition and significant insurance consequences. Your insurance premiums will increase dramatically, and you may have difficulty obtaining coverage at all.
• Employment: A criminal record for a driving-related offence can disqualify you from jobs that require a clean driving abstract — including commercial driving, delivery, transportation, and many trades.
• Travel: A criminal conviction may prevent entry to the United States and other countries.
• Civil liability: A fail to remain conviction is often used as evidence in subsequent civil lawsuits by the injured party.

What to Do If You Are Involved in an Accident

If you are involved in a motor vehicle accident:

1. Stop immediately — pull over safely as close to the scene as possible.
2. Check for injuries and call 911 if anyone is hurt.
3. Exchange information — your name, address, driver’s licence, and insurance information.
4. Do not admit fault — provide your information but do not make statements about who caused the accident.
5. Contact a lawyer if you are charged or if the police want to take a statement.

Related Resources

• Dangerous Driving Defence — frequently charged alongside fail to remain, particularly in serious accidents
• DUI & Impaired Driving Defence — impaired driving charges often accompany fail to remain allegations
• Your Charter Rights in a Criminal Case — how constitutional violations during the investigation can affect your case
• Bail Hearings & Reviews — fail to remain charges involving bodily harm or death often involve contested bail hearings

Charged with fail to remain? Contact us 24/7 for a confidential evaluation of your case.