FAIL TO REMAIN

Mylife76
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FAIL TO REMAIN

by: Mylife76 on
Fri Feb 04, 2011 4:10 am

So I'm heading home approx. 4am one morning, go around a bend (about a minute from home) don't see in time and accidentally swipe a car almost parked in the middle of the road.
Now I stop - look around - no driver - no passenger - no one in sight - car is parked in the road. Now this is a residential area but I am not about to start knocking on every door @ 4am.
I wait around for a bit in case someone heard accident or comes out - nothing. Being about a minute from home, I drive over to tell my gf what happened and then returned with her to the scene as a witness. Still no one - wait a bit and decide we might as well just report it rather than wait around all morning. Went back home to get my ID and docs, didnt leave right away (as gf now wants to fixup a bit and Im having coffee in meantime). Aound 9ish knock on the door - surprise its the boys in blue. Asked what happened - told them everything in detail. He then makes out the accident report ( saving us trip to station ) and hands me a FAIL TO REMAIN? How long was I supposed to remain and I did in fact return to the scene and waited some more? According to the accident report - they themselves arrived at the scene after 8am approx. 4 hours after the accident. I am fully insured and had no thought or reason to evade or not report - they just came before we headed out. Am I still in big trouble even with all my good intentions and a witness?

Thnx Guys


Stanton
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by: Stanton on
Fri Feb 04, 2011 8:16 am

In a five hour period you had no reasonable opportunity to contact police even by telephone? You may say you had good intentions but it sounds suspicious. You are required by law to report a collision "forthwith", basically as soon as you can. The police likely suspect you were drinking and waited to sober up or were simply avoiding responsibility. I don't think the Courts would reasonably expect you to be knocking on doors at that hour trying to locate the owner of the other vehicle, but a simple call to police would have covered you and let them locate the owner. Did you at least leave a note on the vehicle you struck identifying yourself? How did the police actually track you down?

You're probably going to want to get legal representation on this charge, it's fairly serious and rightfully so. I am somewhat surprised that they charged you with fail to remain versus fail to report, which I think would be more accurate under the circumstances.


Mylife76
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by: Mylife76 on
Fri Feb 04, 2011 1:08 pm

In every instance where I've been party to a call to the police where there have been no injury - the wait has been several hours or they just say to drop by a station or reporting center and thats with the other parties present.
Apparently a signal lense or other trim was at the scene with my vin number.

Stanton wrote:I am somewhat surprised that they charged you with fail to remain versus fail to report, which I think would be more accurate under the circumstances.

This is where my whole concern is. I am specifically being charged with the code that I failed to remain - which I did | failed to return - which I also did; and with a witness. The officer indicated he understood and wasn't issuing any other tickets or determining fault but had to give me the fail to remain as a matter of law. Now is it up to them or me to prove I did not remain or return to the scene right away in the preceeding time period and also is there a portion of the fail to remain that also includes a fail to report even though a separate code covers that?

Thnx again


Mylife76
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by: Mylife76 on
Fri Feb 04, 2011 1:39 pm

Just to add the charge was specifically Section 200(1)(a)


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;


Stanton
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by: Stanton on
Fri Feb 04, 2011 2:25 pm

Mylife76 wrote:In every instance where I've been party to a call to the police where there have been no injury - the wait has been several hours or they just say to drop by a station or reporting center and thats with the other parties present.
You're still required to report the accident right away. The police may take several hours to respond or direct you to a reporting centre, but that's their determination to make. You must still exercise your due diligence by reporting the matter forthwith.
Mylife76 wrote:This is where my whole concern is. I am specifically being charged with the code that I failed to remain - which I did | failed to return - which I also did; and with a witness. The officer indicated he understood and wasn't issuing any other tickets or determining fault but had to give me the fail to remain as a matter of law. Now is it up to them or me to prove I did not remain or return to the scene right away in the preceding time period and also is there a portion of the fail to remain that also includes a fail to report even though a separate code covers that?
Leaving the scene shouldn't be a major issue under these circumstances since you were the only person present. You're not expected to simply wait around hoping a police officer might drive by. But when you did go home, it should have been for the purpose of calling police. The fact that five hours go by without notifying anyone is hard to justify. The fact that you brought your girlfriend back to the scene is probably meaningless. She isn't impartial nor did she witness the accident itself. Returning to the scene would be going back there after having left to call police, get help, etc.

As for the section, I believe they should have charged you under 199(1). I'm not aware of 200(1) having a fail to report clause, but more knowledgeable persons on these boards would know better. There may be case law that supports the section based on your actions. The other possibility is that the Crown could amend the charge to the correct section before trial.

Again, representation would probably be helpful. It's a serious charge that can insurance companies disdain.


Mylife76
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by: Mylife76 on
Fri Feb 04, 2011 3:29 pm

What if it is not ammended? So far what you say makes sense but the fact of the matter is it all refers to reporting when my charge is remaining. Are they allowed to ignore all that and still find me guilty? Are you referring to case law against me or that I can use?

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, driver’s 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.

Penalty

(2) Every person who contravenes this section is guilty of an offence and on conviction is liable to a fine of not less than $400 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition the person’s licence or permit may be suspended for a period of not more than two years. 2009, c. 5, s. 54.


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by: Stanton on
Fri Feb 04, 2011 4:57 pm

This isn't definative, just my opinion, but reading the wording for 200(1) makes it sound like you could be found NOT guilty of that offence. But again, I have no idea about relevant case law for that charge. Hopefully someone more experienced could give you a better idea.


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by: Mylife76 on
Fri Feb 04, 2011 5:21 pm

I still appreciate your time and opinion. Look forward to other comments and will let you know how it all proceeds. Thanx


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by: Simon Borys on
Fri Feb 04, 2011 9:34 pm

All issues regarding the duty to report as well as whether the defendant was could have/should have/or was going to report are irrelevant to this situation as the charge is fail to REMAIN, not fail to REPORT. Those are 2 completely different charges and the defendant here only has to defend himself against the former. Further, the charge can not be amended at trial, except on consent of the defendant. You can't amend to a different charge without consent because that would violate the right to make full answer in defence of the charge if they changed the charge on you. That's why the consent is necessary, because you are effectively waiving a charter right by letting them amend. They could withdraw the fail to remain and recharge with fail to report if they really wanted to, but not amend.

Also, please don't fall victim to thinking that the officer HAD to charge you with anything. He didn't. There are no charges in the HTA that are mandatory. He did it because he felt that he had reasonable grounds to lay the charge against you.
http://www.boryslaw.ca
NOTHING I SAY ON HERE IS LEGAL ADVICE.


Mylife76
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by: Mylife76 on
Tue Aug 30, 2011 5:53 pm

***** UPDATE ******

So I picked up my disclosure 3 weeks ago and sure enough there were no witnesses whatsoever. In the 5 hours or so not even the owner of the parked vehicle was aware or had reported the accident.
Either way I took your advice and retained a paralegal who suggested the only shred of a case they had was me cooperating and admitting to having been the driver. (Next time offer no statement until legal consultation he said) Don't know how the officer would have reacted to that one.

Long story short - trial was yesterday and case was dismissed due to insufficient evidence to support the charge.

Thanks to all for your comments - appreciate it and Good Luck to the rest of you!


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