



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Seipp,









2017 BCCA 54




Date: 20170202

Docket: CA42998

Between:

Regina

Respondent

And

Jeffery Thomas
Raymond Seipp

Appellant




Before:



The Honourable Madam Justice D. Smith

The Honourable Madam Justice Bennett

The Honourable Madam Justice MacKenzie




On appeal from: An
order of the Provincial Court of British Columbia, dated July 7, 2016 (
R. v.
Seipp
, Surrey Docket 207914-2C).




Counsel for the Appellant:



N.J. Preovolos





Counsel for the Respondent:



M.A. Street





Place and Date of Hearing:



Vancouver, British
  Columbia

September 13, 2016





Place and Date of Judgment:



Vancouver, British
  Columbia

February 2, 2017









Written Reasons by:





The Honourable Madam Justice Bennett





Concurred in by:





The Honourable Madam Justice D. Smith

The Honourable Madam Justice MacKenzie








Summary:

The
appellant was charged with eight Criminal Code offences related to a home
break-in in which a car was stolen. The appellant was convicted at trial of
four offences, including fleeing the scene of an accident without leaving his
name and address. His counsel conceded his guilt on this count during final
submissions. Mr. Seipp appeals this conviction on the basis that the concession
amounted to ineffective assistance of counsel that caused him prejudice. He
contends that the mens rea of the offence was not proved. Held: Appeal
dismissed. A decision by counsel to acknowledge an accuseds guilt after all
the evidence has been presented is a legal decision that does not require
instructions. And in this case, it caused the appellant no prejudice. Section
252 of the Criminal Code presumes that an accused who fled the scene of an
accident did so with an intent to avoid civil or criminal liability unless the
accused presents evidence to the contrary. Mr. Seipps evidence that he left
the scene to avoid being arrested for driving a stolen vehicle does not amount
to evidence to the contrary. It is sufficiently connected to the accident to be
captured by the legislative intent of the provision.

Reasons
for Judgment of the Honourable Madam Justice Bennett:

[1]

In the early morning on December 29, 2013, someone broke into Mr. and
Mrs. Davidsons home. Jeffery Seipp was charged with eight
Criminal
Code,
R.S.C. 1985, c. C-46 [
Code
] offences related to the break-in:
fraud under $5,000 for the use of Mrs. Davidsons debit card (count 1);
break and enter and theft at the Davidsons home (count 2); theft of Mrs. Davidsons
car (count 3); use of Mrs. Davidsons stolen debit card (count 4);
possession of Mrs. Davidsons stolen car (count 5); possession of Mrs. Davidsons
stolen cellphone (count 6); possession of the Davidsons stolen television and Mrs. Davidsons
stolen wallet (count 7); and failure to stop and provide his name and address at
the scene of an accident (count 8).

[2]

Mr. Seipp was convicted of four of the eight offences: fraud, use
of a stolen debit card, possession of stolen property (a motor vehicle), and
leaving the scene of an accident. He appeals only the conviction for leaving
the scene of an accident.

[3]

At the conclusion of the evidence, during final submissions, the trial
judge asked Mr. Seipps trial counsel (who is not counsel on the appeal),
if she could narrow the issues by acknowledging Mr. Seipps guilt on any
of the charges. Counsel acknowledged that the elements of possessing the stolen
motor vehicle and leaving the scene of the accident had been proved by the
Crown. The trial judge relied on this admission to convict Mr. Seipp.

[4]

The issues on appeal are whether counsels admission was an error that amounted
to ineffective assistance of counsel, and if so, whether this error prejudiced Mr. Seipp,
entitling him to a new trial on that charge.

Fresh Evidence Application

[5]

Mr. Seipps trial counsel filed an affidavit where she deposed the
following:

7.   After
sentencing, it occurred to me that I should not have admitted that Count 8 had
been proven. When I read Count 8 and advised the court that the offence had
been proven, I did not realize that an essential element of the offence of
failing to stop ones vehicle contrary to s. 252(1)(b) of the Criminal
Code includes proof of intent to escape criminal or civil liability.

8.   In
retrospect, I believe I conflated the
Criminal Code
offence of failing
to stop contrary to s. 252(1)(b) with the
Motor Vehicle Act
offence
of failing to stop contrary to s. 68(1). The latter does not require proof
of intent to escape civil or criminal liability. I think I was also led astray
by the wording of Count 8, which does not mention the element of failing to
stop with the intent to escape criminal or civil liability.

9.   In any event, it was a mistake to
admit Count 8, and the mistake was entirely my own. I did not seek the
appellants instructions because I thought his guilt on Count 8 was a foregone
conclusion.

[6]

No argument was made on appeal with respect to the wording of the
information and the failure to specify an essential ingredient of the offence.
I have therefore not addressed that issue.

Background

[7]

Someone broke into Lisa and Timothy Davidsons home on December 29, 2013.
The Davidsons television, Mrs. Davidsons wallet and debit card, her
cellphone, and her 2009 Chevrolet Equinox were stolen. Later that morning, Mrs. Davidsons
debit card was used to purchase gasoline and make several withdrawals from her
chequing account. Mr. Davidson decided to drive around the neighbourhood in
search of the car on the chance it had been abandoned. His daughter, Laura, accompanied
him. Mr. Davidson saw Mr. Seipp driving his wifes car on Old Yale Road.
He caught up with the car and tried to overtake it in a roundabout. This
manoeuvre resulted in a collision between the vehicles. Mr. Seipp fled
without providing either his name or address. The accident disturbed a
corrective steel rod implanted in Lauras back, ultimately necessitating
surgery.

[8]

Surveillance footage showed Mr. Seipp using Mrs. Davidsons
debit card, and Mr. Davidson identified him in a photo pack line-up. The
central issue in the two-day trial before Rounthwaite P.C.J. was
identification. The Crowns theory was that Mr. Seipp committed the
break-and-enter of, and thefts from, the Davidsons home.

[9]

Mr. Seipp testified in his defence. He admitted driving Mrs. Davidsons
car and using her debit card under suspicion that both were stolen. He claimed
that his friend Alyssa unexpectedly stopped by his house around four or five
in the morning on December 29, 2013, and invited him to drive around in a car
she had acquired. He denied breaking into and stealing from the Davidsons
home. At some point he dropped Alyssa off and continued joyriding until the
collision with Mr. Davidsons car. In his direct examination, Mr. Seipp
testified that he fled from the collision because he suspected the car was
stolen and therefore did not want to be present when the police arrived. He was
not asked in direct or cross-examination if he had another reason for fleeing
the scene of the accident.

[10]

At the end of the defences case, the trial judge asked defence counsel
if she was in a position to admit that the evidence established guilt on any of
the counts charged. Defence counsel submitted that counts 5 (possession of Mrs. Davidsons
stolen car) and 8 (failure to provide a name and address at the scene of an
accident) had been proved. Rounthwaite P.C.J. convicted Mr. Seipp of
counts 5 and 8 at the conclusion of submissions, and adjourned the trial for a
short period to deliberate on the six outstanding counts. Upon her return to
the courtroom, she convicted Mr. Seipp of counts 1 (defrauding the credit
union where the debit card was used) and 4 (using Mrs. Davidsons stolen
debit card). Having concluded that Mr. Seipps explanation for possessing Mrs. Davidsons
car and debit card might reasonably be true, the trial judge did not draw the
inference sought by the Crown that Mr. Seipp had committed the
break-and-enter of, and theft from, the Davidsons home. She thus acquitted Mr. Seipp
of the remaining four counts.

Issues

[11]

There are two related issues on appeal. The first is whether trial
counsels conduct in conceding Mr. Seipps guilt on count 8 (failing to
provide his name and address at the scene of the accident) amounted to
ineffective assistance of counsel. In order to answer this question, the
mens
rea
for that offence must be ascertained, as that will determine whether Mr. Seipp
suffered any prejudice as a result of counsels concession at trial.

Position of the Parties

Ineffective Assistance of Counsel

[12]

Mr. Seipp submits that counsels misapprehension of the essential
elements of the offence was a serious error. Counsel admitted in her affidavit
that she conflated the elements of the offence in the
Motor Vehicle Act
,
R.S.B.C. 1996, c. 318 [
MVA BC
] with the elements in s. 252(1)(b)
of the
Code
. This deprived Mr. Seipp of an opportunity to have the
offence tried on the merits. He submits that there was a reasonable probability
the trial judge would have acquitted. He has brought a motion to adduce trial
counsels affidavit as fresh evidence. He also submits that counsel did not
seek instructions before conceding the offence had been proved.

[13]

The Crown submits that while there could be a concern arising from the
fact that defence counsel did not address the essential elements of the
offence, it says that this failure caused Mr. Seipp no prejudice because he
is guilty of the offence. The Crown says that counsel is not obliged to seek
specific instructions at the end of the evidence. It is not the same as
entering a guilty plea at the outset. In addition, the Crown notes that Mr. Seipp
incriminated himself at trial to the point that his guilt on this count was
established.

Mens Rea Under s. 252(1)(b)

[14]

Mr. Seipp submits that the authorities suggest that the proper
interpretation of escape civil or criminal liability under s. 252(1) is
that the intent must relate to avoiding liability in connection with the cause
of an accident rather than any liability arising from the general operation of
a motor vehicle. He argues that there are two distinct lines of authority
interpreting this provision, and that the correct interpretation is limited to
consequences arising from the accident itself. Alternatively, the meaning of civil
or criminal liability is ambiguous, and therefore the principle of strict construction
in interpreting a penal statute must be applied. Mr. Seipp testified he
fled because he did not want to be found with a stolen vehicle. The Crown did
not cross-examine on any other liability he may have intended to escape, and
the trial judge found that Mr. Seipps driving was not the cause of the
accident. Mr. Seipp submits that if the more limited interpretation is
applied, then his evidence would amount to evidence to the contrary
sufficient to rebut the presumption of intent.

[15]

The Crown submits that there are similar interpretations in most of the cases
rather than two distinct lines of authority. It submits that the decisions
generally find that the intention to escape civil or criminal liability must be
related to or substantially connected to the accident. The Crown submits that Mr. Seipp
fled to evade liability for driving Mrs. Davidsons stolen car at the time
of the accident. Although his manner of driving did not cause the accident such
that he could be held liable for Laura Davidsons injuries, his use of the
stolen car was a factual cause of the accident. The Crown submits that this provides
a sufficient link between the liability he sought to avoid and the collision to
establish the
mens rea
. Thus, even absent defence counsels concession
of the appellants guilt, the verdict would have been the same because the
appellants evidence was insufficient to rebut the presumption of
mens rea
codified
in s. 252(2) of the
Code
. The bottom line is that even if defence
counsels confusion as to the
mens rea
constituted incompetence, it did
not prejudice the appellant.

Discussion

Ineffective Assistance of Counsel

[16]

The right of an accused person to effective assistance of counsel is a
principle of fundamental justice:
R. v. G.D.B.
, 2000 SCC 22 at para. 24.

[17]

A Court of Appeal has jurisdiction to set aside a conviction and order a
new trial on the basis of ineffective assistance of counsel where there has
been a miscarriage of justice. See s. 686(1)(a)(iii) of the
Code
and
G.D.B.
at para. 5. The issue has both a performance component and
a prejudice component:
G.D.B.
at para. 26.

[18]

The analysis with respect to ineffective assistance of counsel generally
commences with the question of whether there is prejudice. Major J. described
the process in
G.D.B.
at para. 29:

In those cases
where it is apparent that no prejudice has occurred, it will usually be
undesirable for appellate courts to consider the performance component of the
analysis. The object of an ineffectiveness claim is not to grade counsels
performance or professional conduct. The latter is left to the professions
self-governing body. If it is appropriate to dispose of an ineffectiveness
claim on the ground of no prejudice having occurred, that is the course to
follow (
Strickland
,
supra
,

at p. 697).

[19]

The issue raised in this case is whether counsels admission that the
elements of the offence had been proved was correct in law. Mr. Seipp says
it was not, and therefore he suffered prejudice. The Crown says that it was,
and that therefore no prejudice occurred.

The Mens Rea Requirement

[20]

Mr. Seipp was charged pursuant to s. 252(1)(b) of the
Code
.
I set out the entire section, as it is relevant to the interpretation of the individual
provisions:

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.

[21]

The French language provision is slightly
different, and I have reproduced the relevant offence section:

252
(1) Commet
une infraction quiconque, ayant la garde, la charge ou le contrôle dun
véhicule, dun bateau ou dun aéronef, omet dans lintention déchapper
à
toute
responsabilité civile ou criminelle darrêter son véhicule, son
bateau ou, si cest possible, son aéronef, de donner ses nom et adresse, et
lorsquune personne a été blessée ou semble avoir besoin daide, doffrir de laide,
dans le cas où ce véhicule, bateau, ou aéronef est impliqué dans un accident :

a)
soit avec une autre personne;

b)
soit avec un véhicule, un bateau ou un aéronef;

c)
soit avec du bétail sous la responsabilité dune autre personne,
dans le cas dun véhicule impliqué dans un accident.

[Emphasis added.]

[22]

The French language version of the offence refers to 
à
toute
 or any liability. If the phrase 
à toute

broadens the meaning, then the English version is preferred. See
Schreiber
v. Canada (Attorney General)
, 2002 SCC 62 at para. 56.

[23]

The
MVA

BC
equivalent is s. 68:

68
(1) The driver or operator or any other
person in charge of a vehicle that is, directly or indirectly, involved in an
accident on a highway must do all of the following:

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

(b) render all reasonable assistance;

(c) produce in writing to any other driver involved in the
accident and to anyone sustaining loss or injury, and, on request, to a witness

(i) his or her name and address,

(ii) the name and address of the
registered owner of the vehicle,

(iii) the licence number of the
vehicle, and

(iv) particulars of the motor
vehicle liability insurance card or financial responsibility card for that
vehicle,

or such of that information as is
requested.

[24]

The main difference between the
Code
provision and the British Columbia
legislation is the intent, specified in the
Code
provision as with
intent to escape civil or criminal liability. The British Columbia legislation
creates a strict liability offence, which is also typical of other provinces.
See, for example, the
Traffic Safety Act
, R.S.A. 2000, c. T-6,
s. 69(1), the
Highway Traffic Act
, R.S.O. 1990, c. H. 8,
s. 200, the
Highway Safety Code
, C.Q.L.R, c. C-24.2, ss. 168-170
and the
Motor Vehicle Act
, R.S.N.S. 1989, c. 293, s. 97.

[25]

A key question on appeal is what is the meaning and breadth of the phrase
with intent to escape civil or criminal liability? In order to answer this
question, I commence with the basic principles of statutory interpretation. It
is long accepted that the governing principle was stated by Elmer Driedger and
noted in
Rizzo v. Rizzo Shoes Ltd. (Re)
,

[1998] 1 S.C.R. 27 at para. 21:

Although much has been written about the interpretation of
legislation  Elmer Driedger in
Construction of Statutes
(2nd ed. 1983)
best encapsulates the approach upon which I prefer to rely. He recognizes that
statutory interpretation cannot be founded on the wording of the legislation
alone. At p. 87 he states:

Today there is only one principle or approach, namely, 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.

[26]

Iacobucci J. noted in
Rizzo
at para. 22 that reliance should
also be placed on the interpretive principle that all acts are remedial. Section
12 of the
Interpretation Act
, R.S.C., 1985, c. I-21
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.

[27]

The
Code
provision was first enacted in 1910
(S.C. 1910, c. 13, s. 2). The Bill was introduced as Injuries Due to
Motor Vehicles, and was debated as follows:

Mr. R.L. BORDEN. As I understand the object of the
legislation it is this. When an accident has occurred on the highway owing to the
presence of a motor car,
whether there has been negligence on the part of
the persons driving the motor car or
not,
absolutely
irrespective of that consideration
, the motor car must stop and the driver
must tender assistance and give his name and address. If he fails to do that,
then he is liable, on summary conviction, to a fine not exceeding $50 in costs.

Mr. CARVELL. That is correct.

Mr. R.L. BORDEN. That would be
irrespective of
whether he is in fault or not
. If the accident occurs, and he drives on
without tendering assistance or without giving his name and address, then he is
liable. I think, perhaps, the wording of it might be improved a little in the
last line, but apart from that it would seem to me to have that meaning.
[Emphasis added.]

(
House of Commons Debates
,
11th Parl., 2nd Sess., Vol. 5 (2 May 1910) at 8730.)

[28]

Thus, initially, the offence focused on rendering
assistance to the injured and providing a name and address, regardless of
whether the driver was at fault for the accident.

[29]

The legislative history of the provision was set
out in
R. v. McColl
, 2008 ABCA 287 at paras. 19-24:

[19]      A review of the enactments history
is useful for this purpose. When first enacted (by S.C. 1910, c. 13,
s. 2), subsection 285(2) (section 252s predecessor) read:

Whenever, owing to
the presence of a motor vehicle on the highway,
an accident has occurred to
any
person or to any horse or vehicle in charge of any person, any person
driving the motor vehicle is guilty of an offence ... if, with intent to escape
liability either civil or criminal, he fails to stop his vehicle, tender
assistance, and give his name and address. Such failure shall be prima facie
evidence of an intent as aforesaid.

[20]      The parts of the provision relevant
to this appeal remained essentially unchanged until
Criminal Code
,
1953-54, c. 51 when a general consolidation resulted in subsection 221(2)
(later 233(2)), which stated:

(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 the 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 ...

[21]      In 1985, the
Criminal Law
Amendment Act
, R.S.C. 1985, c. 27 (1st supp.), s. 36 replaced
that provision with what is now essentially subsection (1), excepting some
changes that made the provision gender neutral. In 1999 an amendment added
subsections 1.1, 1.2 and 1.3, discussed below.

[22]      The original enactment makes it plain
that Parliaments intention was to punish drivers leaving an accident scene
without tendering assistance to an injured person. Although the common law
presumes amendments are intended to change the substance of an enactment, the
presumption may be rebutted when the changes result from a general
consolidation, in which case the revised statute is said to be a reformulation
of the pre-existing law, see generally Pierre
-
André Côté,
The
Interpretation of Legislation in Canada
3rd ed., (Scarborough: Thomson
Canada Limited, 2000) at 422. That approach arguably applies to subsection
1(a): the provision was initially enacted to create an offence when an accident
has occurred and the driver of a vehicle involved leaves without assisting
those injured. Such intention has not been altered by reformulations and
clarifications of the provisions meaning.

[23]      In contrast, true amendments,
including the addition of subsection 1.2, must be considered on a different footing.
Recourse to the Hansard may be used to glean Parliamentary intention:
Reference
re Firearms Act (Can.)
, 2000 SCC 31, [2000] 1 S.C.R. 783 at para. 17.
In introducing Bill C-82 (which was given its third reading and passed that
day), the Parliamentary Secretary to Minister of Justice and Attorney General
of Canada explained the amendments adding subsection 1.2 thus:

Among its penalty
changes Bill C
-
82 includes changes for two crimes which are sometimes directly related
to impaired driving. The first is the offence of leaving the scene of an
accident to escape civil or criminal liability. Bill C-82 would amend this
provision to add the elements of bodily harm and death, which would increase
the gravity of the offence. That in turn should signal to the courts that more
severe sentences are required.

[...]

The new formulation
in Bill C
-
82 preserves the intent of the committee. Three levels of leaving the
scene are created. Each contains different essential elements. ...

Under subsection
(1.2), where the person knows that bodily harm has been caused to another
person involved in the accident the offence is indictable and punishable by a
maximum of 10 years imprisonment.

[...]

The maximum penalty
under Bill C
-
82 is life imprisonment. To the extent that penalties can discourage
those who might leave an accident in order to evade getting caught for impaired
driving, the changes to the offence of leaving the scene will send the message
that running away from a collision where someone is injured or killed is egregious
behaviour that carries a serious penalty.

House of Commons
Debates
, No. 241 (June 9, 1999) at 1835ff (Eleni
Bakopanos)

[24]      Subsection 1 and 1.2 must be read
together. As the Court stated in
Roche
(referring to the two provisions
set out in para. 12 above): [i]t might be said that s. 233(3) read
in isolation is clear. But this is not the type of section that should be
treated in that way, as it is ancillary to s. 233(2). The Court confirmed
that the two subsections, when read together, clarified each other.

[Emphasis added in
McColl
.]

[30]

Section 252(2) requires a driver who is involved in an accident to: (i)
stop, (ii) give their name and address, and (iii) offer assistance if a person
appears injured or in need of assistance. A driver is required to complete all three
steps. Proof of failure to perform any one of these three acts will trigger a
rebuttable presumption with respect to the drivers intent. See
R. v. Roche
,
[1983] 1 S.C.R. 491 at paras. 496-97. The evidence need only raise a
reasonable doubt that the driver did not have the requisite intent. See
R.
v. Proudlock
, [1979] 1 S.C.R. 525 at 551.

[31]

Therefore, failure to perform any of the three requirements is
sufficient to form the
actus reus
of the offence and trigger the
presumption of intent to escape criminal or civil liability. The
mens rea
may be proved by the presumption of intent in the absence of evidence to the
contrary.

[32]

There are two approaches in the jurisprudence for what is meant by intent
to escape civil or criminal liability and what amounts to evidence to the
contrary. One approach limits the intent required to the intent to avoid the
legal consequences of the accident itself; the other includes the course of
conduct leading up to the accident. Neither approach includes the evasion of
criminal conduct at large as meeting the intent requirement.

[33]

In
Fournier c. R
, (1979), 8 C.R. (3d) 248 (Q.C.C.A), the
court considered the intent requirement in s. 233 [now s. 252], and
said, at 254 (translated):

I would add, that in my opinion,
the civil or criminal responsibility that one must intend to escape by leaving
the scene of an accident must be related to the accident, and not refer to all
civil or criminal responsibility previously or otherwise incurred, e.g. risk of
arrest: for armed robbery.

[34]

The case did not involve an armed robbery. By using this offence as an
example, the court appears to exclude the intent to avoid liability for an act
quite separate from the accident. The court found that the intent must be to
escape responsibility
related
to the accident.

[35]

In
R. v. Hofer
, (1982), 2 C.C.C. (3d) 236 (Sask.C.A.), the court specifically
considered the
mens rea
for the offence. The issue was whether the
intent to escape civil or criminal liability only included liability arising
from the accident itself. The court generally agreed with the above passage
in
Fournier
. It added that an accused can have more than one intent

for example, the intent to avoid liability unconnected to the
accident as well as the intent required for the offence (at 239). Furthermore,
the court found that the intent was not limited solely to the accident itself,
but could include, for example, avoiding a charge of 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 (at 240).

[36]

In
R. v. Benson
, (1987), 50 M.V.R. 131 (Ont. Dist. Ct.), Borins
D.C.J. (as he then was), considered whether the presumption of intent was
rebutted when the driver fled from the accident scene because his license was
suspended due to unpaid fines and a bail condition and he did not want to be
caught driving under suspension. Borins D.C.J. did not agree that this
explanation amounted to evidence to the contrary. In his view, at 135, 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. Borins
D.C.J. clarified one of his findings from an earlier decision in
R. v.
Riopka
(1986), [1987] 45 M.V.R. 145 at 149-150, wherein he found that leaving
an accident scene to avoid being caught for theft of property from an employer
was evidence to the contrary. He clarified in
Benson
at 136 that the
intention to avoid liability for a number of driving offences, including
criminal negligence, failing to provide a breath sample, or driving while ones
licence was suspended did not amount to evidence to the contrary.

[37]

In
R. v. MacLean
(1982), [1983] 18 M.V.R. 275 (P.E.I. Sup. Ct.),
McQuaid J., at 277 defined the liability more narrowly. He concluded that the
liability must be incidental to and arising out of the accident in question. In
his view, leaving a scene because ones drivers licence was suspended did not
give rise to the accident nor was consequent upon it (at 277-278).

[38]

More recently, Hill J. considered the intent requirement in
R. v.
Sanford
, 2014 ONSC 3164. Mr. Sanford struck a cyclist at night. He stopped
at the scene, but left, he said, to obtain water and blankets for the injured
cyclist. A number of others had stopped to assist, and police, firefighters,
and paramedics were on route. The trial judge rejected Mr. Sandfords explanation
that he had left to obtain aid for the victim. Instead, he concluded that he
left the scene to avoid detection as a suspended driver. Hill J. at para. 73
noted the correlation between accidents and suspended drivers as well
recognized, citing
R. v. Ladouceur
, [1990] 1 S.C.R. 1257 at 1280-81, where
the majority upheld random police road stops. He adopted the reasoning of
Borins J., and concluded that a person who left an accident scene because his
licence was suspended was attempting to avoid liability as a suspended driver,
which fell within the ambit of the section.

[39]

In
R. v. K.J.F.
, 2009 BCCA 344 at para. 14, Saunders J.A. in
discussing the presumption in s. 252 said:

[14]      Section 252(2), as
counsel for the appellant submits, does not establish a positive obligation on
the part of the driver to fulfill the three behaviours of stopping, providing a
name and address and rendering assistance. Those obligations are the subject of
a provision in the
Motor Vehicle Act
, noncompliance with which is an
offence under the
Offence Act
. Rather, s. 252 prohibits a failure
to fulfill these three actions with the intent of avoiding civil or criminal
liability, and I say parenthetically, in connection with the accident.

[40]

I note that the issue of whether the liability was in connection with
the accident was not an issue before the court in
K.J.F.
, and thus the
parenthetical observation is, in my view,
obiter
.

[41]

If the provision is capable of more than one meaning, then the strict
construction of penal statutes must be invoked. In
Bell ExpressVu Limited
Partnership v. Rex
, 2002 SCC 42 at paras. 28-30, the application of
the principle was stated as follows:

[28]      Other principles of interpretation  such as the
strict construction of penal statutes and the 
Charter
values
presumption  only receive application where there is ambiguity as to the
meaning of a provision. (On strict construction, see:
Marcotte v. Deputy
Attorney General for Canada
, [1976] 1 S.C.R. 108, at p. 115,
per
Dickson J. (as he then was);
R. v. Goulis,
(1981), 33 O.R. (2d) 55
(C.A.), at pp. 59-60;
R. v. Hasselwander
, [1993] 2 S.C.R. 398, at
p. 413;
R. v. Russell
, [2001] 2 S.C.R. 804, 2001 SCC 53, at para. 46.
I shall discuss the 
Charter
values principle later in these reasons.)

[29]      What, then, in law is an ambiguity? To answer, an
ambiguity must be real (
Marcotte
,
supra
, at p. 115). The
words of the provision must be reasonably capable of more than one meaning (
Westminster
Bank Ltd. v. Zang
, [1966] A.C. 182 (H.L.), at p. 222,
per
Lord
Reid). By necessity, however, one must consider the entire context of a
provision before one can determine if it is reasonably capable of multiple
interpretations. In this regard, Major J.s statement in
CanadianOxy
Chemicals Ltd. v. Canada (Attorney General)
, [1999] 1 S.C.R. 743, at para. 14,
is apposite: It is only when genuine ambiguity arises between two or more
plausible readings,
each equally in accordance with the intentions of the
statute
, that the courts need to resort to external interpretive aids
(emphasis added), to which I would add, including other principles of
interpretation.

[30]      For this reason,
ambiguity cannot reside in the mere fact that several courts -- or, for that
matter, several doctrinal writers -- have come to differing conclusions on the
interpretation of a given provision. Just as it would be improper for one to
engage in a preliminary tallying of the number of decisions supporting
competing interpretations and then apply that which receives the higher score,
it is not appropriate to take as ones starting point the premise that
differing interpretations reveal an ambiguity. It is necessary, in every case,
for the court charged with interpreting a provision to undertake the contextual
and purposive approach set out by Driedger, and
thereafter
to determine
if the words are ambiguous enough to induce two people to spend good money in
backing two opposing views as to their meaning (Willis,
supra
, at
pp. 4-5). [Emphasis added in
Bell ExpressVu
.]

[42]

In my view, there is no true ambiguity when one considers the context
and object of the legislation.
The
Code
holds people
responsible for intentionally committing prohibited acts or omissions, or for
acting in a way that is objectively worthy of criminal censure. The case law
generally finds that acts that are connected or related to the driving will be
caught by the provision. In my view,
there is no need to invoke the
strict construction of penal statutes principle. The fact that the section has
been interpreted in different ways by different judges does not mean there is a
true ambiguity.

[43]

It is clear from the debate on Bill C-82 (noted above), when the
legislation was amended in 1999, that the legislature intended to capture
impaired driving in this provision, conduct which may not necessarily be
connected to or be causally related to the accident. The 1999 amendments
support the broader interpretation given to the legislation in, for example,
the decisions in
Hofer
and
Benson
. In my view, the course of
conduct leading up to the accident must be included in order to capture
impaired driving, which is clearly one of the purposes of the legislation.

[44]

The object of the
Code
offence is to provide a penal incentive for
a driver who is involved in an accident, regardless of whether they are at
fault, to remain at the scene, provide their name and address, and offer
assistance if another person appears to be injured or in need of assistance. The
liability a driver seeks to evade is not narrowly construed as solely arising
from the consequences of the accident itself, but must also encompass offences
connected to the driving, such as impaired driving, driving while suspended,
criminal negligence, and dangerous driving.

[45]

The next question is where does flight to avoid criminal liability for
driving a vehicle knowing it was stolen fit into the scale of liability
connected to the accident?

[46]

The legislation was clearly intended to provide penal consequences for
those who avoid an investigation for impaired driving by fleeing the scene. It
also intended to provide penal consequences to persons who remain at the scene
but do not offer to assist injured persons, and to provide penal consequences
for those who attempt to hide their identities by failing to leave a name and
address. A driver who commits these acts to escape civil or criminal liability
arising from their driving has the requisite
mens rea
. The liability
contemplated in the section cannot be solely in relation to the cause of the accident,
as the driver may not be at fault, but the driver is still required to comply
with the legislation. I would adopt the test, as stated by Borins J. in
Benson
at 136 that civil or criminal liability should be broadly interpreted to
include any liability, civil or criminal, which
might properly arise from
the operation of the motor vehicle by the defendant at the time the accident
takes place
 (emphasis added).

[47]

As noted, the
actus reus
of the offence can be committed in three
ways. The broader
mens rea
easily applies to the first two: both failing
to stop a vehicle and failing to provide a name and address provide penal
consequences to those who hide their identity as the driver to escape, for
example, investigation for offences relating to driving, including impaired
driving. The
mens rea
does not as easily fit with a failure to offer
assistance with the intent to escape civil or criminal liability. However, there
are potentially hypothetical situations (although no cases that I have found),
where a driver could desire the death of the only witness to the accident, and
thereby not offer assistance and have the requisite intent for not doing so. It
is an awkward test, and as defence counsel pointed out, it would benefit from
an amendment. However, Mr. Seipp is charged with the
actus reus
of
failing to give his name and address, and while the test I propose must work
with all three acts underlying the offence, it does not need to be honed to
perfection with the act of failing to offer assistance, as that does not arise
on these facts.

[48]

Mr. Seipp did not want to be identified as the driver of the car,
as he was knowingly in possession of a stolen automobile, and was driving it at
the time he was involved in the accident. His flight from the scene was
to
avoid criminal liability in connection with a vehicle he was driving at the
time of the accident
.

[49]

It seems to me that, applying the
Benson
test, being involved in
an accident and fleeing to evade liability for driving a stolen motor vehicle,
like driving while ones licence is suspended, or driving while impaired, is
conduct and intent that is intended to be included in this legislation. Being
the driver of a stolen car when involved in an accident, and fleeing to avoid
detection as the driver, is, in my view, sufficiently related to the event to
be captured by the intent of the legislation. Fleeing to avoid arrest as the
driver of a stolen vehicle after an accident is therefore not evidence to the
contrary, but falls within the criminal liability contemplated by the section.

[50]

Thus, the explanation offered by Mr. Seipp, even if accepted by the
trial judge, would not have rebutted the presumption of intent. His counsel therefore
did not commit an error in admitting that the elements of the s. 252 offence
were proved beyond a reasonable doubt, and the trial judge committed no error
in convicting him.

[51]

Finally, Mr. Seipp submits that counsel failed to obtain his
instructions before admitting the elements of the offence. In these
circumstances, conceding an offence has been proved after hearing the evidence
is within the ambit of counsel; it is a legal decision. It is not on the same
footing as entering a guilty plea to an offence, which would require
instructions. I would not give effect to this argument.Therefore, there is no
need to admit the fresh evidence, as it would not affect the outcome of the
case.

[52]

I would dismiss the appeal.

The Honourable Madam Justice Bennett

I AGREE:

The
Honourable Madam Justice D. Smith

I AGREE:

The Honourable Madam Justice
MacKenzie


