“Possible Fail To Remain Violation”

Hi OHTA-

I'm new to this forum. My daughter was involved in a minor fender-bender collision in Toronto. She was driving my wife's car who has the insurance in her name as our daughter is an occasional driver. There was minimal damage to our vehicle and minimal damage to the other vehicle. Certainly not $2000 total for both. The problem is that my daughter and the other driver did not get out of their vehicles to exchange information. After briefly waiting, my daughter drove off. She also didn't go to a vehicle collision reporting centre as the damage was minimal. My concern now is that the other driver might have gotten her license plate number as she drove off and she will be charged with "Failing to Remain" or other offences.

The incident happened 10 days ago and she/we haven't heard anything. Is there an average amount of time it takes for us to get a summons for this incident? If we were to get a summons would it come through the mail? Or would it be served hand delivered? We live in a city north of Toronto. Is there any way to find out if she has been charged with an offence? Any information would be appreciated. Thanks

In order to charge her, somebody has to identify her.

So if the police show up at your door DO NOT ANSWER ANY QUESTIONS THEY ASK YOU. If you or your wife or your daughter admit that she was driving then she is toast. If you say nothing, then they do not know who was driving and can not charge anybody.

She needs to understand her charter right not to incriminate yourself, and you and your wife need to understand that you have no obligation to say anything to the police at all.

Remember if they come to your door, you do not have to answer the door and do not have to talk to them. You do not have to invite them in either. The police will be forceful and intimidating and probably tell you that you must tell them. They may even take pictures of the car and say "see we got you". But unless somebody can identify the driver OR somebody admits to who the driver was, they have nothing to go on!

Read this topic (and get your wife and daughter to read it to):

I highly recommend that you read ALL the linked to articles in that topic.

If I was going to say anything (which I still suggest you don't) you should say something like this:

"Am I required by law to answer your questions?"

If officer says NO, then say

"Then I have no comment. Have a nice day."

If officer says YES, then say

"Since I am required by law to answer, then anything I say or any information I give you is NOT voluntary and is compelled. Do you understand that I am NOT volunteering any information?"

Thank you for the reply. We would absolutely NOT be saying anything to police and would seek out legal assistance if necessary. If the other driver did report her licence plate to the police, how long do you think it would take to be notified by an officer? Would they send a registered letter with a summons? Or a regular letter to call the officer to discuss incident details? The reason I'm asking is because my wife and I are quite anxious and worried something will come of this and just kind of want to know a general time frame(if possible). Thanks

Not to get "preachy" but I'm assuming that your daughter was at fault in this collision, hence the lack of concern with the damage that was done to your vehicle.

I'd exercise caution here and speak with a lawyer immediately. Your vehicle was involved in a collision, your daughter may have committed a criminal offence and your simply refusing to answer questions regarding who was operating your vehicle at the time of the collision doesn't make this matter disappear.

Additionally, your insurance company has to meet a lower burden of proof and may hold you at fault for the collision (as it is reasonable to believe the other driver given the damage to your car).

You may want to consider how to make this situation "right" rather than focusing exclusively on how to avoid the consequences of a criminal act.

I agree with Mugwug. This isnt a situation where you just ignore it and hope for the best. Id consult with an experienced traffic lawyer ASAP. You have legal requirements to report an accident under both the HTA and your insurance policy, but such compelled statements arent typically admissible in Court if youre charged.

My main concern would be your insurance provider finding out that your vehicle was involved in a collision that you failed to report and/or failed to co-operate with the police investigation. In such situations they can deny coverage and terminate your policy leaving you on the hook for the other drivers repair costs, medical expenses, etc.

There is no timeline for how long it would take the police to contact you though its typically sooner rather than later. Police have up to 6 months to lay a charge under the HTA, 3 years under compulsory automobile insurance act and no time limitation for criminal charges.

So just a reminder that this is NOT legal advice, and is just my opinion. You need make sure anything I say is actually true and you may want to seek out a lawyer/paralegal (print out this thread and take it with you though and see what they say about it).

The police have up to 6 months to lay a charge for a provincial offences under the HTA. I am not sure if there is a time limit for criminal charges.

The article below breifly explains the two possible charges the police could lay:

PROVINCIAL OFFENCE CHARGE of Fail to Remain at Sceen of Accident

CRIMINAL CHARGE of Fail to Stop at Scene of Accident

Now back to Mugwug's comments...

Legal advice may be something you want to consider. Let's suppose that you get legal advice and they tell you to report it, or you feel guilty enough that you want to report it. In either of these cases I would get your daughter to write a letter as to what happened. But I would open the letter with something along the following:

"I understand that I am required by law to report what happened, so the following statement is not voluntary. Here is what happened bla bla bla"

The reason you want to do this, is that the statement can then NOT be used against her in court. The common law confessions rule prevents statements you made from being used against you IF they were not given voluntarily. If you make a voluntary statement then it CAN be used against you. If they try to use your statement against you, you can then object and say it was not voluntary therefore it is not admissable. At this point the prosecution has to prove that it was voluntary (see case law below). If your statement clearly says that you are doing it because the law requires you to do it and that it is not a voluntary statement, then the prosecution can not prove that.

Common Law Confessions Rule

Paragraphs [40],[42],[43] of R. v. Soules, 2011 ONCA 429

Paragraph [9] of R. v. Slopek 1974 OJ No 826

Paragraph [90] of R. v. Grant, [2009] 2 SCR 353, 2009 SCC 32

R. v. Grant, [2009] 2 SCR 353, 2009 SCC 32

[90] This case concerns s. 24(2). However, it is important to note at the outset that the common law confessions rule, quite apart from s. 24(2), provides a significant safeguard against the improper use of a statement against its maker. Where a statement is made to a recognized person in authority, regardless of whether its maker is detained at the time, it is inadmissible unless the Crown can establish beyond a reasonable doubt that it was made voluntarily. Only if such a statement survives scrutiny under the confessions rule and is found to be voluntary, does the s. 24(2) remedy of exclusion arise. Most commonly, this will occur because of added protections under s. 10(b) of the Charter.

Can they still charge your daughter even if they can not use the statement she gives? Yes they can BUT how were they able to identify her as the driver prior to the statement? So again if the statement is not admissable then they can not use to lay the charge either.

Let's say you still end up in court with a charge. The other driver must show up to identify your daughter. If she is charged as a provincial offence under the HTA then she is not required to be in court and if the other actually driver shows up and your daughter is not there, then she can not be idetified. If she is charged under crimimal code then she does have to be court, but there is still a chance the other driver won't show up.

There are several charges in the Highway Traffic Act where the investigating officer does not need to prove who was driving. There are times when charges may be brought against the registered owner for violations such as passing a school bus which is stopped, lights on and a car blows by. If the plate number is captured by witness, or camera, the owner can be charged. Read Section 207 HTA: although the driver can't be charged under S. 199 if they can't be identified, and the owner can't be charged as that is an an exception to owner liability, Section 200 is not an owner liabiltiy exemption section and the owner may be charged

207. (1) Subject to subsection (2), the owner of a vehicle may be charged with and convicted of an offence under this Act or the regulations or any municipal by-law regulating traffic for which the driver of the vehicle is subject to be charged unless, at the time of the offence, the vehicle was in the possession of some person other than the owner without the owners consent and on conviction the owner is liable to the penalty prescribed for the offence. R.S.O. 1990, c. H.8, s. 207 (1).

When owner not liable

(2) The owner of a vehicle, except if the owner is also the driver, shall not be convicted for a contravention of,

(a) subsection 106 (2) or (4);

(b) sections 129 to 143, subsections 144 (1) to (17), subsections 144 (19) to (32), sections 145 to 168, section 172, subsections 175 (1) to (10), subsections 175 (13) to (18) or section 176, 182 or 199;

Sorry, forgot to include Section 200:

Duty of person in charge of vehicle in case of accident

200. (1) Where an accident occurs on a highway, every person in charge of a vehicle or street car that is directly or indirectly involved in the accident shall,

(a) remain at or immediately return to the scene of the accident;

(b) render all possible assistance; and

(c) upon request, give in writing to anyone sustaining loss or injury or to any police officer or to any witness his or her name, address, drivers licence number and jurisdiction of issuance, motor vehicle liability insurance policy insurer and policy number, name and address of the registered owner of the vehicle and the vehicle permit number. R.S.O. 1990, c. H.8, s. 200 (1); 1997, c. 12, s. 16.

Speak to a lawyer. Right away.

From my own perspective I would counsel MY daughter to report the accident immediately and to take responsibility for her mistake. Reporting the accident BEFORE someone knocks on the door undermines the key element of the criminal fail to remain charge (attempting to avoid civil or criminal responsibility).

She can deal with the HTA consequences (and indeed there are strategies here for precisely that) and even if she is found guilty of fail to report or some other HTA charge those will disappear from her abstract quickly enough. A criminal charge is forever, and playing Russian roulette with one seems like a really bad idea.

Lets not forget she did this thing - she isn't wrongly accused. She did it and now you're looking for ways to help her avoid responsibility. The 'right' thing to do is rarely the easy thing. I guess you (and her) need to decide if that's the sort of people you are.

I'd wish you luck, but I'll admit that I'm hoping you hear that knock at your door soon.

+1 Mugwug

so ,

you get into a FB, both parties wait, the both parties drive off, "not examining the cars"

without getting out and looking how did EITHER party know the damage was minor.

whoes fault was it? was it a 50/50

other than the legal stuff, that's a part I don't understand, was it a small gentle "kiss off" or more

cars are designed to break easily to absorb impacts

in the past I've clipped, curbs, or posts only to get home and see a major ding,

I'm sorry but in this town, with high liabilities, I can't see 2 drivers having an accident and not getting out to check

UNLESS they both did not want to report it and go 50 50

also BOTH parties left the scene of an accident nes pas?

re-reading the post ... and THIS IS JUST an IMHO

I don't think anyone will come knocking, they didnt want to get involved with an insurance claim, possibly not having insurance or having a high insurance,

otherwise they would have got out and your daughter and them would have had a conversation

sometimes its ALWAYS GOOD just to get out (don't admit liability) sometimes both parties will say, they will fix there own,

especially if it will go 50/50

at least you then KNOW almost certainly either way

again this is just my personal opinion