Hamilton, Beaupré, Hardy

Appeal from a judgment of the Superior Court dismissing the appeal from a conviction. Dismissed.

The appellant was convicted of having failed, without reasonable excuse, to stop and give his name and address after the vehicle he was driving was involved in an accident with another vehicle. According to the appellant, the Superior Court judge erred in law in her determination of  the constitutive elements of the offence set out in section 320.16(1) of the Criminal Code (R.S.C. 1985, c. C-46) (Cr. C.). The appellant also submits that she erred in law by failing to find that the Crown was bound by the particularization of the charge against him.

The appellant concedes that, under the English version of section 320.16 Cr. C., the existence of a person who has been injured or who appears to require assistance is not an essential element of the offence of hit and run. The use of the word “if” leaves no doubt in this respect. On the other hand, the French wording does not contain an equivalent to “if” and is therefore more restrictive. The appellant’s reading of the French version leads him to conclude that the presence at the scene of a hit and run of a person who has been injured or who appears to require assistance must now be proved in all cases, contrary to the prior state of the law. In other words, he alleges that this version includes one constitutive element more than the English version does.

However, the appellant has not demonstrated that an antinomy exists between the English and French versions of section 321.16 Cr. C. The two versions are not irreconcilable. On the contrary, the French version can be read to mean that only the obligation to offer assistance is conditional on the presence of a person who has been injured or appears to require assistance. If the French version is truly ambiguous, it is open to two interpretations, one of which corresponds to the only possible meaning of the English version. This common meaning is what must be accepted.

Thus, to commit the actus reus of the offence of hit and run, a person must be operating a conveyance that is involved in an accident with a person or another conveyance and fail (i) to stop the conveyance; (ii) to give their name and address, or (iii) to offer assistance to a person who has been injured or who appears to require assistance.  It is not necessary to offer assistance if no one is injured or appears to require assistance. Nevertheless, even in that case, the driver must both stop their conveyance and give their name and address. Doing only one of these two actions does not suffice.

As for the second ground of appeal, the appellant has not shown that the amendment to the wording of the charge deprived him of his right to make full answer and defence. The problem is not that the count was reworded, but rather that the appellant’s reading of section 320.16 Cr. C. was erroneous.

Legislation interpreted: s. 320.16(1) Cr. C.

Text of the decision: http://citoyens.soquij.qc.ca