Reporting A Motor Vehicle Accident
Michael W. Lacy for The Lawyers Weekly
Being involved in a motor vehicle accident of any kind can be a daunting and emotional experience. The police will inevitably become involved in investigating the accident and, for many people this may be their first involvement with the police. The police in Canada will consider whether any charges should be laid and whether the charge should be criminal in nature or a traffic act violation. It is important to understand what obligations you might have to speak to the police about the accident and in Canada, what type of information you might be required to provide. It is also important for you to understand what use the police can make of the information you give them.
In Canada, do I have the right to remain silent?
Canadian Courts have interpreted s.7 of the Canadian Charter of Rights and Freedoms so as to recognize that every person in Canada has the right to remain silent in relation to a criminal investigation.
As a general rule, no one is required to cooperate with the police during an investigation or provide a statement detailing what they know about the matter under investigation. This general rule applies to any criminal investigation in Canada, including a criminal investigation arising from a motor vehicle accident.
The principle behind the rule is that no one should be required to "incriminate" themselves by assisting the police in providing information to substantiate a criminal charge against them. However, that general rule has been modified by provincial traffic legislation, which requires drivers to assist the police investigating motor vehicle accidents in some instances.
My obligations under provincial legislation
It is the responsibility of every province in Canada to enact legislation (a Highway Traffic Act or similarly named Act) to regulate and license drivers. In order to allow for the effective enforcement of these provincial statutes, the legislation includes a requirement that drivers involved in motor vehicle accidents are required to report the details of the accident to a police officer. These "reporting requirements" are different in each province but generally include a requirement that drivers provide details to the police about how the accident occurred.
For example, Section 199 of the Ontario Highway Traffic Act requires that every driver involved in an accident in Ontario, which results in injury or damage (that apparently exceeds the amount prescribed by regulation) must immediately report the accident to the police. The Ontario police must then obtain certain information from the person making the report, including the particulars of the accident, the people involved and the extent of the injuries and damage. Similarly, section 200 of the Highway Traffic Act requires a driver, upon request (by the police, a witness or anyone that sustained injury or loss in the accident), to provide particulars, including their name, address, driver's license and insurance information. Every person in Ontario who contravenes these sections is liable to a fine and/or jail term and/or license suspension.
The requirement that a driver in Ontario involved in a car accident must cooperate with the police and provide information about the accident appears to be inconsistent with the general rule that you should not be forced to incriminate yourself.
Take the following example: If you are involved in an accident because you went through a red light and you are required to report what happened to a police officer, it is very likely that you are going to be charged with a traffic offence and possibly with a criminal offence (dangerous driving), which has very significant consequences if convicted. In those circumstances, it would not seem fair if the Crown prosecutor was entitled to introduce the statement you gave admitting you went through the red light at your trial. The Supreme Court of Canada has dealt with this conundrum in a way that seeks to still protect the right to remain silent and not to incriminate oneself while giving effect to the traffic legislation that requires you to speak to the police and tell them about the accident.
In a case called R. v. White, the Supreme Court of Canada decided as follows:
A statement, made by a driver in Canada who is fulfilling the statutory requirement that he give the statement, cannot be used against the driver in a subsequent prosecution for a criminal offence;
The statement you give to the police will only not be admissible against you in a criminal trial if you honestly believe at the time that you give the statement that you were required to give it; and
If the Canadian police want to take a statement only in relation to a possible criminal offence and do not want to rely on your obligation to provide a statement, they must make it clear to you that they are not taking a statement under the traffic legislation.
The case stands for the proposition that it is okay for the legislation to require you to cooperate by giving a statement but it is not okay to then use that statement against you in a criminal trial. This way, although you are required to provide information that might not be helpful to you, that information cannot be used to prove any subsequent charge against you.
What should I do?
When approached by a police officer in Canada investigating a motor vehicle accident that you've been involved in, you should be cautious before simply telling the officer what occurred. The following guidelines might assist you before you speak to the police:
- Ask the officer whether you are under arrest or detention. If you are, it is likely that the officer has already decided to charge to you with a criminal offence. You are entitled to be told about your rights to counsel and you are entitled to speak to a Criminal lawyer before answering any questions so you can clarify whether you should speak to the police or not;
- If you are not under arrest or detention, you should ask the Canadian officer whether he is investigating the matter as a criminal offence or as a highway traffic act offence;
- If you are told that it is a possible criminal offence, you should indicate that you are exercising your right to remain silent and should tell the officer that you would like to speak to a Criminal lawyer;
- If you are told that it is a traffic investigation or that it is both a traffic investigation and a criminal investigation you should make it clear that you are only speaking to the officer and providing a statement based upon your understanding that you are required by the Canadian traffic legislation to provide a statement. You should also indicate that it is your understanding that the officer is asking you questions under the Canadian traffic legislation;
- If the officer indicates he is not asking you to provide a statement pursuant to the traffic legislation, than you are not required to give the police in Canada a statement.
- If you provide a statement to the police in Canada, you are required to be truthful in what you tell them. Lying to the police during the course of an investigation is a serious criminal offence called "public mischief" and is prohibited by s.140 of the Criminal Code. Canadian judges view lying to the police during the course of an investigation very seriously and the punishment imposed when people are found guilty reflects that. Therefore, if you provide the police with a statement, you must be truthful in your account.
Dealing with persons in authority in a time of emotional crisis such as a motor vehicle accident is difficult, especially if you are without the assistance of an Criminal lawyer. At the time of your interaction with the police, it is difficult to know whether you will be charged with an offence regardless of whether you believe you did anything wrong or not. In some cases you will be required to tell the Canadian police officer how the accident occurred and answer their questions about the details of the accident. When that happens, it is important that you make it clear that you are answering the questions because you understand that you are required to do so. That way, should the worst happen and you find yourself charged with an offence, your Criminal lawyer can argue that whatever you told the police should not be admitted into evidence against you.
Whenever possible, speak to a criminal lawyer before deciding whether to provide a statement to the police.
Michael W. Lacy is an attorney with Kelly & Lacy in Toronto, Ontario.
A great way to start your search for a local Canadian Criminal lawyer is at Canadian-Lawyers.ca. Go to the 'Find a Lawyer' search box that appears on the right hand side of this screen to start your lawyer search. Type in Criminal Law or the name of the law firm, the city and the province that you are looking to hire a lawyer from, and click on the 'Search Now' button. This will generate a list of local Canadian Criminal lawyers.