Failure to stop after an accident (s. 320.16) and related impaired driving charges

Impaired drivers may flee the scene of an accident and then lie about what happened in an attempt to avoid DUI charges and other liabilities.

Impaired drivers will sometimes try to flee the scene of an accident to avoid being charged with a DUI. They reason that if they can avoid police contact they may sober up before reporting the accident to the police. By not remaining at the scene they are committing the offence of “failure to stop after an accident” under Section 320.16 of the Criminal Code of Canada. Fleeing the scene is considered to be an aggravating factor by the courts for the DUI charges.

Once the accident is discovered by the police they will attempt to locate the driver as soon as possible.

This includes attending at any known addresses associated with the license plate (if known), calling them on the phone, gathering statements from potential witnesses on scene, etc. A BOLO will be issued to all officers in the area with a description of the suspect vehicle if available. If they cannot identify who is responsible for the accident they may seek information from the public through a press release.

In some cases the driver will foolishly report their vehicle as stolen to the police to try to evade responsibility for both the accident and driving while impaired. If the police later discover that a false police report was filed they will be charged with public mischief (CC s. Section 140 (1)) and failure to stop at the scene of an accident.

When the police identify and make contact with the driver they will try to extract a statement as to what happened by questioning them perhaps prior to their arrest. By not immediately placing them under arrest for DUI or failure to stop they may be able to extract admissions from the accused about their whereabouts that night.

The accused may get themselves into even more trouble by trying to explain what happened to the police.

Perhaps feeling a little hungover and groggy the accused may further lie about what happened all of which will be documented by the police in their notepads and/or via audio or video (bodycam, in car recordings, or CCTV video at the station). The accused is still in the process of trying to explain or talk themselves out of the precarious situation that started with a bad decision to drink and drive and snowballed from there.

While failing to stop (fleeing) and possibly subsequently lying to the police may have allowed enough time to sober up and avoid the DUI impaired driving charges, the accused will be criminally charged under s. 320.16 instead for failure to stop, possibly public mischief, along with a slew of HTA offences usually including s. 200(1)(a) fail to remain instead. If they are ultimately found guilty they likely will face a substantially more serious penalty than had they remained at the scene.

Potential punishments and consequences for charges under s. 320.16 (1) if the accused is convicted in court.

In cases where there is no bodily harm or death, the accused is liable to up to 10 years in prison and a criminal record. The courts are much more likely to jail an offender who flees after a DUI accident than one who remains at the scene. Most first time DUI offenders (alcohol or cannabis), will receive a criminal record and a fine (no jail) if found guilty absent any aggravating factors. These same individuals are now looking at a lengthy jail term in addition to the criminal record if they are ultimately found guilty.

If you have been charged under s. 320.16 for failing to stop or remain at the scene in addition to an impaired driving offence (s. 320.14) the fact that you fled the scene of the accident will be considered a significant aggravating factor by the court. In cases where the accused also provides a false police report (public mischief, obstruction of justice), this is also considered an aggravating factor.

This being said, it is still up to the Crown to prove the case against you. In cases where the accused exercises their right to remain silent, perhaps after consulting with a criminal lawyer, the police may not have enough evidence for the Crown to prove any or some of the charges beyond a reasonable doubt in court.

The burden of proving guilt is always on the Crown which can be difficult in some cases if the accused exercises their right to remain silent.

The burden of proof is always on the Crown and just because an accused perhaps “appears guilty” or is a very “logical suspect” does not mean there is enough evidence to convict them. Judges are required to be impartial and only consider the evidence that is properly before the court. An accused person who exercises all of their Charter rights and hires a lawyer to get them the best result may end up substantially better off by avoiding being convicted of some or all of the counts.

A discharge is a possible sentencing option for s. 320.16 (1) failing to stop charges if there is no bodily harm or death and the Crown proceeds summarily. This would mean no criminal record for the accused if found guilty which is not an option for a judge in an impaired driving case. It is therefore possible to avoid a criminal record if found guilty of failing to stop after an accident if there is no finding of guilt for impaired driving/DUI.

A deal may be offered by the Crown if the evidence against the defendant is relatively weak or incomplete.

In cases where the evidence is inconsistent, incomplete, or triable the accused may also be offered a deal by the Crown to plead guilty to one or more Ontario Highway Traffic Act (HTA) provincial driving offences such as failure to remain at the scene of an accident (s. 200(1)(a)) in exchange for dropping the DUI and/or criminal failure to stop criminal charges. A lawyer may have room to negotiate these options with the Crown allowing the accused to avoid jail and a criminal record if the case against them is problematic or relatively weak.

Many accused will foolishly believe they have no other choice but to plead guilty to the Crown’s initial offer and end up with a far worse result than had they obtained a lawyer from the beginning to defend them.


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