2006 BCCA 275 R. v. Chase

Before:	The Honourable Madam Justice Rowles
	The Honourable Mr. Justice Mackenzie
	The Honourable Madam Justice Kirkpatrick

J.L. Straith	Counsel for the Appellant
A. Budlovsky	Counsel for the Respondent
Place and Date of Hearing:	Vancouver, British Columbia
25 May 2006
Place and Date of Judgment:	Vancouver, British Columbia
6 June 2006

Written Reasons by:

The Honourable Madam Justice Rowles

Concurred in by:

The Honourable Mr. Justice Mackenzie

The Honourable Madam Justice Kirkpatrick

Reasons for Judgment of the Honourable Madam Justice Rowles:

I. Introduction

[1] The appellant was convicted in the provincial court of failing to remain at the scene of an accident. The offence was charged under s. 252(1) of the Criminal Code, R.S.C. 1985, c. C-46 which provides that “[e]very person commits an offence who has the care, charge or control of a vehicle . . . that is involved in an accident with . . . a vehicle . . . and with intent to escape civil or criminal liability fails to stop the vehicle . . . give his or her name and address. . .”.

[2] Following the dismissal of his summary conviction appeal, the appellant obtained leave to appeal to this Court on the following question of law:

Did the learned summary conviction appeal court judge err in law in finding that the Applicant was properly convicted of failing to stop at the scene of an accident under s. 252(1) of the Criminal Code when there was no evidence of damage or injury?

[3] The appellant argues that where prohibited conduct may result in penal sanction, any ambiguity in the provision creating the offence must favour the accused. As applied to s. 252(1), the appellant argues that some real, physical damage, even to the extent of a mark, must be required for an “accident” to be established within the meaning of the section. In the appellant’s submission it cannot have been the intention of Parliament to criminalize conduct where no discernable damage has occurred. His argument is couched this way in his factum:

The evidence before [the trial judge] was unequivocal that there was no discernable injury to the complainant or to the complainant’s bicycle. It is respectfully submitted that an accident requires more than a mere touching in order to constitute a criminal offence. It is respectfully submitted that the intention of Parliament is to punish something other than mere trivial contact that may be intentional or unintentional. Rather it is to punish those who would flee a scene where any discernable damage has occurred.

[4] The respondent argues that s. 252(1) does not incorporate, either as an ingredient of the offence, or as a condition precedent for an accused’s obligation to stop at the scene of an accident and leave his name and address, the presence of damage or injury resulting from the accident. The respondent points out that there is no mention of damage in s. 252(1) and that the only reference to injury is linked to the additional obligation to offer assistance “where any person has been injured or appears to require assistance”. In the respondent’s submission, the obligation of the driver to stop and leave his or her name and address is triggered by the accident, not the occurrence of damage or injury. That interpretation, the respondent submits, is consistent with the gravamen of the offence, which is the intent to escape civil or criminal liability.

[5] After hearing argument we dismissed the appeal with reasons to follow. These are the reasons.

II. Background

[6] On 11 July 2003, the complainant, who was riding her bicycle, had stopped for a red light at an intersection. The appellant came up behind her in his motor vehicle and he told her to get out of the way. The trial judge found that the appellant said, "Get out of the way or I'll hit you". The complainant did not do so. The appellant then pulled forward and the bumper of his vehicle touched the back wheel of the complainant's bicycle causing the complainant to be “jumped” forward. The complainant moved aside and the appellant drove away without leaving his name and address or having any discussion with the complainant. In her testimony, the complainant stated that there had been no damage to her bicycle and that she was not injured.

[7] The driver of a vehicle who had been in the lane next to the appellant was called as a Crown witness and her evidence provided support for the complainant’s testimony. The appellant denied having hit the complainant’s bicycle but the trial judge did not believe him. The trial judge found that the touching of the complainant's bicycle had been intentional.

[8] The appellant was convicted of assault with a weapon, the weapon being his vehicle, and leaving the scene of an accident. He did not appeal the assault conviction but brought a summary conviction appeal from his conviction for leaving the scene of an accident. The narrow question put before Maczko J. on the summary conviction appeal was this:

Did the Learned Trial Judge err in finding that an "accident" had occurred within the meaning of Section 252 (1) of the Criminal Code notwithstanding that there was no evidence of injury or damage to a person or thing?

[9] Maczko J. answered the question in the negative and dismissed the appeal in reasons for judgment at 2005 BCSC 1080, 204 C.C.C. (3d) 152, 21 M.V.R. (5th) 77.

III. Section 252 of the Criminal Code

[10] Section 252 of the Criminal Code provides:

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.

(1.1) Every person who commits an offence under subsection (1) in a case not referred to in subsection (1.2) or (1.3) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction.

(1.2) Every person who commits an offence under subsection (1) knowing that bodily harm has been caused to another person involved in the accident is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

(1.3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for life if

(a) the person knows that another person involved in the accident is dead; or

(b) the person knows that bodily harm has been caused to another person involved in the accident and is reckless as to whether the death of the other person results from that bodily harm, and the death of that other person so results.

(2) In proceedings under subsection (1), evidence that an accused failed to stop his vehicle, vessel or, where possible, his aircraft, as the case may be, offer assistance where any person has been injured or appears to require assistance and give his name and address is, in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability.

[11] Subsection 252(1) took essentially its present form in the Criminal Code, S.C. 1953-1954, c. 51, as s. 221(2). Subsections 221(2) and (3) read:

221. (1) . . .

(2) Every one who, having the care, charge or control of a vehicle that is involved in an accident with a person, vehicle or cattle in charge of a person, with intent to escape civil or criminal liability fails to stop his vehicle, give his name and address and, where any person has been injured, offer assistance, is guilty of

(a) an indictable offence and is liable to imprisonment for two years, or

(b) an offence punishable on summary conviction.

(3) In proceedings under subsection (2), evidence that an accused failed to stop his vehicle, offer assistance where any person has been injured and give his name and address is prima facie evidence of an intent to escape civil and criminal liability.

[12] By the Criminal Law Amendment Act, S.C. 1968-69, subsection (3) was amended from “is prima facie evidence” to the current wording of “is, in the absence of any evidence to the contrary, proof”.

[13] In the Criminal Code, R.S.C. 1970, c. C-34, the sections were renumbered and became ss. 233(2) and (3). As a result of the Criminal Law Amendment Act, 1985, S.C. 1985, c. 19, s. 36 the numbering became ss. 236(1) and (2). Amendments were subsequently made to the consolidated version of the Criminal Code (R.S.C. 1985, c. C-46, ss. 249(2) and(3)), through the Criminal Law Amendment Act, 1985, R.S.C. 1985, c. 27 (1st Supp.), s. 36, where the provisions took the present numbering of ss. 252(1) and (2).

[14] In 1994, Parliament increased the maximum penalty to five years for the offence of failing to stop at the scene of an accident under s. 252(1), on proceedings by indictment: S.C. 1994, c. 44, s.12.

[15] In 1999, Parliament introduced subsections (1.1), (1.2) and (1.3) to s. 252 of the Criminal Code by S.C. 1999, c. 32, s. 1, which govern punishment. Section 252(1.1) contains the general punishment provision and allows the Crown to proceed either summarily or by indictment. Sections 252(1.2) and (1.3) provide for higher maximum penalties for more aggravated offences but require proof of the consequences as well as knowledge of or recklessness about the consequences.

IV. Discussion

[16] Counsel referred us to a number of helpful cases involving the interpretation of s. 252(1) and the operation of the presumption in s. 252(2) to assist in determining whether the actus reus or external elements of an offence charged under s. 252(1) include damage or injury.

[17] In R. v. Hansen (1988), 46 C.C.C. (3d) 504, [1988] B.C.J. No. 2600 (QL) (C.A.), this Court rejected an argument that for the offence of leaving the scene charged under what is now s. 252(1) of the Criminal Code, an “accident” is limited in meaning to an unintended and unexpected occurrence. Rather, the Court held that the provision “must be construed to include both intentional and unintentional striking by a motor vehicle of a person.”

[18] In R. v. Hofer (1982), 2 C.C.C. (3d) 236, 20 Sask. R. 389 (C.A.) [cited to C.C.C.] the court considered the operation of the presumption now found in s. 252(2) of the Criminal Code. In that case, the accused lost control of the vehicle he was driving and ran into two parked vehicles, causing substantial damage. The accused failed to stop his vehicle and left the scene in haste. The following day he paid the outstanding fines he had accumulated and thereafter reported the accident to the police. The trial judge found that the sole intent of the accused in failing to stop and leave his name and address was to avoid having the authorities execute warrants for his committal for failure to pay the outstanding fines and that there was no other evidence to show that he had failed to stop in order to escape civil or criminal liability arising from the accident itself. On the Crown’s appeal, Hall J.A. did not accept the reasoning of the trial judge respecting the operation of the presumption, and he said at 239:

The intent to avoid liability for some other civil or criminal liability cause does not negate the presumption that arises under s. 233(3) [now 252(2)]. The two intents are not incompatible and can exist side by side. Therefore there must be something further shown or accepted by the trial judge before it can be said that there is evidence to the contrary.

[19] Hall J.A. was also of the view that the type of criminal liability contemplated by the section was not as narrow as the reasons the trial judge suggested. He observed that the section “would include, for example, the intent to escape criminal liability for impaired driving which does not technically arise out of the accident itself but arises out of the course of conduct leading up to the accident.”

[20] R. v. Bensen (1987), 50 M.V.R. 131, [1987] O.J. No. 1493 (QL) (D.C.) [cited to M.V.R.] provides a further elaboration of the operation of the presumption and the extent of the civil and criminal liability that may be contemplated by the section creating the offence. In that case, a van driven by the accused struck and fatally injured a child who had run into its path. The accused was charged with failing to stop his vehicle, give his name and address and offer assistance. The reason put forward by the defence for the failure of the accused to comply with his statutory duties was said to be unrelated to any civil or criminal liability to which the accused might be subject arising from the accident. The explanation the accused gave to the police was that he left the scene in order to avoid prosecution for driving while his licence was suspended. In rejecting the submission that the explanation constituted “evidence to the contrary” within the meaning of s. 236(2) [now s. 252(2)] and prevented the Crown from relying on the presumption, Borins D.C.J. said at 135-136:

In my view, civil or criminal liability should be broadly interpreted to include any liability, civil or criminal, which might properly arise from the operation of a motor vehicle by the defendant at the time that an accident takes place. This is what I meant when I stated in Regina v. Riopka (1986), 45 M.V.R. 145 at 149, “that the ‘civil or criminal liability’ referred to in section 236(1) must be in relation to the accident in issue”.… Thus, for example, a particular fact situation resulting in an accident could bring about the commission of a number of driving related offences, such as criminal negligence, failure to provide a breath sample and driving without a licence. In such circumstances, evidence that the defendant failed to remain at the scene of the accident to avoid prosecution for any one of these offences would not constitute evidence to the contrary, such as to prevent the prosecution from relying on the provisions of s. 236(2). Liability that could arise from this accident includes liability for driving while the defendant’s licence was under suspension. As an intent to escape liability for driving while his licence was under suspension comes within the meaning of “civil or criminal liability” in s. 236(1), this does not constitute evidence to the contrary within the meaning of s. 236(2). . .

[21] In R. v. Roche, [1983] 1 S.C.R. 491, 3 C.C.C. (3d) 193 the Supreme Court of Canada held that the presumption in s. 233(3) [now 252(2)], which is to facilitate proof of intent to escape civil or criminal liability, applies upon proof of failure to perform any one of the three duties imposed, that is, (i) to stop his vehicle, (ii) to give his name and address, and (iii) where any person has been injured, to offer assistance

[22] In R. v. Mihalick (1990), 28 M.V.R. (2d) 114, [1991] B.C.J. No. 144 (QL) (C.A.) the vehicle the appellant was driving left the road and plunged into a creek drowning the passenger. He was convicted of criminal negligence causing death and leaving the scene of an accident. On appeal from his conviction for leaving the scene, the appellant argued that the vehicle of which he had control was not involved in “an accident with . . . another person”. In dismissing the appeal, Taylor J.A. agreed with the reasons given by the trial judge for rejecting the appellant’s submission, which Taylor J.A. reproduced at paragraph 23 of his reasons:

The intent of s. 252 is to impose criminal sanction upon a person who has the care, charge or control of a vehicle, vessel or aircraft, and who, with intent to escape civil or criminal responsibility after an accident has occurred [drives] away without giving his name and address and without offering assistance to an injured person. In my view, there is no logical reason why the legislation should provide protection to a pedestrian or to a person in another vehicle but not to a person riding as a passenger in the accused’s vehicle. The passenger may or may not know the identity of the person who has the care, charge or control of the vehicle. For instance, that person may have been a hitch-hiker. If the passenger is injured he or she would not be in less need of assistance than a pedestrian or a person in another vehicle.

[23] In agreeing with what the trial judge had observed, Taylor J.A. said:

[23] . . . It seems to me inconsistent with the sense of the section that the word “accident” in the phrase “everyone who has the . . . control of a vehicle . . . that is involved in an accident with . . . another person” should be interpreted as meaning “collision”, so as to limit its application to circumstances in which there has been an impact of some sort between the vehicle and the person referred to.

[24] It seems to me that in this context the word “accident” should be given its broader, more natural and generally understood meaning, encompassing an incident of any sort causing injury or damage. The words are in my view more readily capable of bearing that meaning than the meaning proposed for the appellant, and there is nothing in the context which could justify the proposed restrictive construction.

[Underlining added.]

[24] The appellant in the case before us submits that the minority opinion of Spence J., with which Laskin J. concurred, in Hill v. The Queen, [1975] 2 S.C.R. 402, 14 C.C.C. (2d) 505 [cited to S.C.R.] provides support for his argument that there must be some damage from the accident to attract criminal liability under s. 252(1). In that case, the appellant had been driving behind a taxi cab which had stopped for a red light. When the light turned green, the taxi began to make a right turn but stopped suddenly to avoid a pedestrian in the crosswalk. The appellant’s vehicle touched the rear of the taxi. There was a pause of two or three seconds and then the taxi pulled over to the right of the street which curved and was out of sight of the appellant. The appellant, believing there was no damage as a result of the touching, continued the drive to her home. It was later shown that there was a dent in the rear bumper of the taxi requiring $60 to repair.

[25] In Hill, the defendant was not charged under the Criminal Code but under provincial motor vehicle legislation. The section in which the word “accident” appeared was s. 140(1)(a) of The Highway Traffic Act, R.S.O. 1970, c. 202 which provided that "where an accident occurs on a highway, every person in charge of a vehicle or car of an electric railway that is directly or indirectly involved in the accident shall (a) remain at or immediately return to the scene of the accident; . . ."

[26] On an appeal by way of a stated case from conviction on the charge, the following point of law was put forward for determination:

Did I err in law in holding that as a matter of law, in order to support a conviction upon the charge aforesaid, there was no need for the appellant to have had knowledge that there had been damage caused as a result of the coming into contact of the vehicle of the appellant with another vehicle.

[27] Osler J. answered the question in the negative, having concluded that in order to convict, it was not necessary for the appellant to have had knowledge that damage occurred as a result of the touching of the two vehicles. An appeal to the Ontario Court of Appeal was dismissed without reasons. The appeal to the Supreme Court of Canada was dismissed with Dickson J. writing for the majority.

[28] However, the majority judgment in Hill proceeded on the footing that there had been some damage to the taxi and therefore it was not necessary to decide whether the view taken by Osler J. was correct that an “accident” occurs the moment two vehicles come in contact accidentally and even without damage. Dickson J. writing for the majority said at 405-407:

. . . The word "accident" is not defined in The Highway Traffic Act and is not easy of definition as its meaning has a certain chameleon-like quality, changing its colour with the context in which it is found. It may mean simply any chance mishap or unforeseen contingency or occurrence; it may mean something more. Counsel for Mrs. Hill maintained that for the purpose of The Highway Traffic Act an "accident" consists of two elements, "chance occurrence" and "resulting loss, injury or damage". Counsel cited Fenton v. Thorley & Co. Limited, [1903] A.C. 443, "any unintended or unexpected occurrence which produces hurt or loss" and Regina v. Morris (1971), 56 Cr. App. R. 175 at p. 178, "an unintended occurrence which has an adverse physical result". The other view which is open is that expressed by Osler J. that an "accident" occurs the moment two vehicles come into contact accidentally and even without damage. I do not think it necessary at this time to decide whether the view held by Osler J. is the correct one for, on the facts of this case, as I understand them, the mishap which befell Mrs. Hill was productive of damage. . . . I have concluded that the case against Mrs. Hill includes damage and hence, there was an "accident", on any definition of the word, within the meaning of s. 140(1)(a).

[29] The point of divergence between the majority and the minority opinions in Hill arose from the way in which the facts in the stated case had been expressed. The majority proceeded on the basis that it was implicit in the stated facts that the damage to the taxi had been caused by the appellant whereas the minority took the view that no such fact had been stated or established.

[30] In the first paragraph of his dissenting reasons, Spence J. stated that if there had been damage to the taxi and the appellant knew of the occurrence of the accident, he would concur with the reasons of Dickson J. However, he took the view that the stated case did not stipulate that the damage had been caused by the accident and the fact could not be assumed. Spence J. then went on to consider what was meant by the phrase “where an accident occurs” in that section of the Highway Traffic Act, and he concluded at 411:

. . . I am of the opinion that all courts below were in error because the appellant was charged with a breach of a section which only operated "where an accident occurs" and the Crown had failed to prove that an accident had occurred. In my respectful opinion, the word "accident" appearing as it does in a section forming part of Part XIII of The Highway Traffic Act of Ontario which deals with "Records and Reporting of Accidents" should be construed to mean a chance occurrence resulting in loss, injury or damages. . . .

[Underlining added.]

[31] Spence J. went on to make the following observation at 412-413, which counsel for the appellant submits is directly applicable to the issue on this appeal:

I am moved by the consideration of the enormous inconvenience which would result from Osler J.'s interpretation to believe that the legislature could not mean to have so enacted. In any large city, there are each day innumerable instances of bumpers touching in parking at the curb, in parking lots and elsewhere. In these cases, the driver of the other car is not in the vehicle and probably could not be found. Surely, the section is designed to penalize an attempt to escape civil liability for damage caused, not to needlessly impede the proper movement of traffic. It may be said that the appellant could not have determined whether damage were caused unless she had remained at the scene. It may be noted in passing that the taxi driver, as recited in para. (3) of the Stated Case, first drove around the corner out of sight of the appellant and therefore it was he and not the appellant who failed to remain. Be that as it may, and perhaps the appellant was lucky, but since there was no proof of damage there was no accident despite the contact and the appellant committed no breach of the section.

[32] In R. v. Atwood (1996), 144 Nfld. & P.E.I.R. 271, 22 M.V.R. (3d) 137 (P.E.I.S.C.(T.D.)) DesRoches J. considered the decision in Hill in relation to an argument that damage or injury is an essential element of the offence charged under s. 252(1):

[23] In my opinion, the obligation imposed upon a person by s. 252(1)(b) to stop his or her vehicle at the scene of an accident, arises immediately upon the collision between the vehicle of which that person has the care, charge or control and another person, vehicle, vessel or aircraft, or cattle in the charge of another person. In the context of s. 252(1)(b) the view expressed by Osler J. in Hill is the preferred one, in my opinion. Damage or injury is not an essential element of accident for the purposes of s. 252(1)(b) in the same way that injury is not an essential element of assault under s. 265 of the Code.

[24] The appellant's interpretation of s. 252(1)(b) has the potential of frustrating the purpose of the section. One can easily conceive of situations, such as that in Hill, supra, where whether damage, or indeed injury, has occurred as a result of the collision is not readily apparent. Unless the obligation under s. 252(1) is engaged as soon as the collision occurs, then a driver responsible for an accident by which, it is later found, damage or injury was occasioned would be able to escape liability, either civil or criminal or both, for that damage or injury by simply, upon his or her own assessment of the extent of the collision, leaving the scene without complying with the requirements of s. 252(1).

V. Analysis

[33] I turn now to consider the issue of whether the summary conviction appeal court judge erred in law in finding that the appellant was properly convicted of failing to stop at the scene of an accident under s. 252(1) of the Criminal Code when there was no evidence of damage or injury.

[34] The argument advanced by the appellant before us does not differ in substance from the argument he advanced before the summary conviction appeal judge. Before us, the appellant submitted, as he had before Maczko J., that it is a fundamental principle of interpretation of criminal statutes that where there is ambiguity, the court must strictly construe the provision and adopt the interpretation that is the least unfavourable to the accused.

[35] As to the approach to statutory construction that ought to be taken when the word or phrase in question is found in a provision that makes conduct criminal, Maczko J. said:

[15] However, application of the rule [of strict construction] has relaxed over time. Indeed such a rule appears to conflict with s. 12 of the Interpretation Act, R.S.C., 1985, c. I-21, which provides:

Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

[16] In R. v. Hasselwander, [1993] 2 S.C.R. 398, Justice Cory, speaking for the majority, had this to say about the rule [of strict construction] and its conflict with [s. 12 of] the Interpretation Act at 411:

We are dealing here with the Criminal Code. In days gone by it was a fundamental principle of statutory interpretation that penal enactments should be strictly construed so that any uncertainty as to the meaning or the scope of the law would be resolved in favour of the accused. See, for example, Cité de Montréal v. Bélec, [1927] S.C.R. 535, and Winnipeg Film Society v. Webster, [1964] S.C.R. 280. This rule has been modified and indeed transformed over the last fifty years.

[17] Justice Cory . . . [in R. v. Hasselwander], at 413 quoted with approval the following passage from Martin J.A., writing for the Ontario Court of Appeal, in R. v. Goulis (1981), 125 D.L.R. (3d) 137 at 141-42:

This Court has on many occasions applied the well-known rule of statutory construction that if a penal provision is reasonably capable of two interpretations, that interpretation which is the more favourable to the accused must be adopted: see, for example, R. v. Cheetham (1980), 53 C.C.C. (2d) 109, 17 C.R. (3d) 1; R. v. Negridge (1980), 54 C.C.C. (2d) 304, 17 C.R. (3d) 14, 6 M.V.R. 255. I do not think, however, that this principle always requires a word which has two accepted meanings to be given the more restrictive meaning. Where a word used in a statute has two accepted meanings, then either or both meanings may apply. The Court is first required to endeavour to determine the sense in which Parliament used the word from the context in which it appears. It is only in the case of an ambiguity which still exists after the full context is considered, where it is uncertain in which sense Parliament used the word, that the above rule of statutory construction requires the interpretation which is the more favourable to the defendant to be adopted. [Emphasis added by Cory J.]

[18] In R. v. Scott, 2000 BCCA 220, Justice Braidwood adopted Justice Cory’s approach in Hasselwander. In concurring reasons, Chief Justice McEachern held, at para. 57:

It is apparent from R. v. Hasselwander, [1993] 2 S.C.R. 398, that our first task in interpreting a provision is to ascertain the real intention of Parliament. . . . Also in Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983) (“Driedger, 2d ed.”) at 87, Professor Driedger summarizes the modern principle of statutory construction as follows:

. . . the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the act, the object of the Act, and the intention of Parliament.

[36] No issue can be taken with the summary of the case authorities Maczko J. provided concerning the rule of statutory construction to be applied to the issue before him. As Cory J. stated in Hasselwander, at 413:

. . . the rule of strict construction becomes applicable only when attempts at the neutral interpretation suggested by s. 12 of the Interpretation Act still leave reasonable doubt as to the meaning or scope of the text of the statute. . . This means that with penal statutes, the real intention of the legislation must be sought, and the meaning compatible with its goals applied. . .

[37] Maczko J. began his analysis with an examination of the ordinary meaning of the word “accident”. After referring to some dictionary definitions, Maczko J. stated that the literary definition of the word “appears to encompass both injurious and non-injurious events”. Maczko J. also referred to the decisions of this Court in R. v. Hansen and R v. Mihalick, both supra, in which the meaning of the word “accident” found in s. 252(1) was considered. He concluded that the reasoning in these cases demonstrated that a broad view of the word “accident” had to be taken in order to capture the intent of Parliament in s. 252 of the Criminal Code.

[38] In relation to the appellant’s argument based on the minority opinion in R. v. Hill, supra, Maczko J. found the reasoning of DesRoches J. in R. v. Atwood, supra, quoted above, particularly persuasive. While noting that the relevant comments of DesRoches J. were obiter because in that case there had been damage caused, Maczko J. was of the view that DesRoches J.’s interpretation of s. 252(1) “best reflects the intent of Parliament”. Maczko J. concluded that the obligation under s. 252(1) is triggered by the collision itself, not by the existence of damage or injury.

[39] In my opinion, uncertainty as to the meaning to be given to the word “accident” in s. 252(1) of the Criminal Code can readily be resolved when the word is considered within the context of the section itself and is interpreted in light of the purpose of the offence created by the section.

[40] There is no reference in s. 252(1) to damage. To make “damage” an external element of an offence charged under s. 252(1) could only be justified if the meaning of “accident” were limited so as to include only those incidents where damage results. The commonly understood meaning of “accident” is not so limited and nothing in the wording of the section suggests to me that such a meaning was intended. Instead, the obligation of a person having charge, care or control of a vehicle to stop the vehicle, give his or her name and address, and, where any person has been injured or appears to require assistance, offer assistance, is triggered by the involvement of the vehicle in an accident, not by the existence of damage or injury.

VI. Summary and conclusion

[41] I do not agree with the appellant's argument that on a charge under s. 252(1) of the Criminal Code, some real, physical damage, even though very minor, must be required for an “accident” to be established within the meaning of the section.

[42] For the reasons given and the reasons of Maczko J., with which I substantially agree, I am of the view that s. 252(1) does not incorporate, either as an ingredient of the offence, or as a condition precedent for an accused’s obligation to stop at the scene of an accident and leave his or her name and address, the presence of damage resulting from the accident.

[43] Accordingly, I would dismiss the appeal.

“The Honourable Madam Justice Rowles”

I agree:

“The Honourable Mr. Justice Mackenzie”

I agree:

“The Honourable Madam Justice Kirkpatrick “