FAILING TO REMAIN AT THE SCENE OF AN ACCIDENT

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

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

 At the conclusion of the evidence, during final submissions, the trial judge asked Mr. Seipp’s trial counsel (who was not counsel on the appeal), if she could narrow the issues by acknowledging Mr. Seipp’s 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.

The issues on appeal were whether or not counsel’s 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 specific charge.

Mr. Seipp’s trial counsel filed an affidavit where she deposed the following:

“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 one’s vehicle contrary to s. 252(1)(b) of the Criminal Code includes proof of “intent to escape criminal or civil liability.”

“In retrospect, I believe I conflated the Criminal Code offence of failing to stop contrary to section 252(1)(b) with the Motor Vehicle Act offence of failing to stop contrary to section 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.  In any event, it was a mistake to admit Count 8, and the mistake was entirely my own. I did not seek the appellant’s instructions because I thought his guilt on Count 8 was a foregone conclusion.” unquote

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. The Court of Appeal did not addressed that issue.

Later that morning, Mrs. Davidson’s 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 wife’s 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 that had been medically implanted in Laura’s back, ultimately necessitating surgery. While driving his wife’s car on Old Yale Road. Mr. Davidson caught up with his wife’s car and tried to overtake it in a roundabout. This manoeuvre resulted in a collision between the vehicles. Mr. Seipp then fled without providing either his name or address.

Now I can understand why he didn’t want to remain at the scene of the accident since he had stolen the vehicle he was driving.  But that doesn’t mean that he would be innocent of not remaining at the scene of the accident by fleeing the scene of the accident. He was soon after seen by the police and arrested.

 Surveillance footage showed Mr. Seipp using Mrs. Davidson’s 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 Crown’s theory was that Mr. Seipp committed the break-and-enter of, and thefts from the Davidsons’ home.

 Mr. Seipp testified in his own defence. He admitted driving Mrs. Davidson’s car and using her debit card knowing  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. Davidson’s 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.

At the end of the defence’s 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. Davidson’s stolen car) and 8 (failure to provide a name and address at the scene of an accident) had been proved. The trial judge 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. Davidson’s stolen debit card). Having concluded that Mr. Seipp’s explanation for possessing Mrs. Davidson’s 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.

 There were two related issues on appeal. The first is whether trial counsel’s conduct in conceding Mr. Seipp’s 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 counsel’s concession at trial.

Mr. Seipp submitted (through his second counsel) that his first counsel’s misapprehension of the essential elements of the offence was a serious error. His first Counsel admitted in her affidavit that she conflated the elements of the offence with the elements in s. 252(1)(b) of the Criminal Code. This deprived Mr. Seipp of an opportunity to have the offence tried on the merits. His second lawyer  submitted that there was a reasonable probability the trial judge would have acquitted Mr. Seipp. The second lawyer brought a motion to adduce trial counsel’s affidavit as fresh evidence. He also submitted that the first lawyer did not seek instructions before conceding the offence had been proved.

 Mr. Seipp’s second lawyer submitted that the first counsel’s misapprehension of the essential elements of the offence was a serious error. She had 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. Accordingly, this deprived Mr. Seipp of an opportunity to have the offence tried on the merits. He submitted that there was a reasonable probability the trial judge would have acquitted his client. He has brought a motion to adduce trial counsel’s affidavit as fresh evidence. He also submitted that Mr. Seipp’s first lawyer did not seek instructions from his client before conceding the offence had been proved.

The Crown (the prosecutor) submitted that while there could be a concern arising from the fact that defence counsel did not address the essential elements of the offence, 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.

Mr. Seipp’s lawyer  submitted that the legal authorities (f0rmer court decisions) 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 argued 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.

Keep in mind that Mr. Seipp testified that he fled because he did not want to be found with a stolen vehicle. The Crown did not cross-examine Mr. Seipp on any other liability he may have intended to escape, and the trial judge found that Mr. Seipp’s driving was not the cause of the accident. Mr. Seipp’s lawyer submitted 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.

The Crown submitted that there are similar interpretations in most of the cases rather than two distinct lines of authority. It submitted 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 also submitted that Mr. Seipp fled to evade liability for driving Mrs. Davidson’s 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 Davidson’s injuries, his use of the stolen car was a factual cause of the accident. The Crown submitted 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 counsel’s concession of Mr. Seipp guilt, the verdict would have been the same because the appellant’s evidence was insufficient to rebut the presumption of mens rea codified in  section252(2) of the Code. The bottom line is that even if defence counsel’s confusion as to the mens rea constituted incompetence, it did not prejudice the appellant.

  The analysis with respect to ineffective assistance of counsel generally commences with the question of whether there is prejudice. Justice Major 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 counsel’s performance or professional conduct. The latter is left to the profession’s 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.”

 The issue raised in this case is whether counsel’s admission that the elements of the offence had been proved was correct in law. Mr. Seipp’s Lawyer said it was not, and therefore his client  suffered prejudice. The Crown says that it was, and that therefore no prejudice occurred.

 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. The lesser offence gets a lessor sentence.

 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.

Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for life if  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. I know of no case where a driver was sent to prison for life. Generally, the sentence is around five years.

 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 driver’s intent.

Therefore, failure to perform any of the three requirements is sufficient to form the actus reus  (criminal act) 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.

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.

 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.

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.

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 Mr. Seipp.

The Court of appeal dismissed his appeal. The lawyer for Mr. Seipp appealed to the Supreme Court of Canada. That court refused to hear the appeal. It said,

“The appeal from the judgment of the Court of Appeal for British Columbia that was held Vancouver had delivered the following judgment orally by the Chief Justice of the Supreme  Court of Canada.”             

Mr. Seipp was convicted of the offence of failure to stop at the scene of an accident, contrary to s. 252(1) of the Criminal Code, . The British Columbia Court of Appeal upheld his conviction. We will not interfere with that decision.”

“We are all of the view that Mr. Seipp’s conviction was not a miscarriage of justice. Mr. Seipp had control of a vehicle involved in an accident. He fled the scene without providing his name or address. In the absence of evidence to the contrary, this was proof of the requisite intent for the offence.”

“The evidence on which Mr. Seipp relies is that he fled the scene to avoid criminal liability for possession of a stolen vehicle. This is not evidence to the contrary. Rather, it is evidence that Mr. Seipp intended to avoid criminal or civil liability from his care, charge, or control of the vehicle involved in the accident. Such an intent falls within the ambit of the mens rea (criminal intent) established by the expression “intent to escape civil or criminal liability,” As a result, Mr. Seipp suffered no prejudice from his trial counsel’s admission that the elements of the offence had been made out. For these reasons, the appellant’s appeal is dismissed.”