In Alberta, leaving the scene of a motor vehicle accident can give rise to two different charges. The first is the criminal offence of failure to stop after an accident under the Criminal Code of Canada, which carries a criminal record and can include a driving prohibition and jail. The second is the provincial offence of failing to remain at the scene under Alberta’s Traffic Safety Act, which is a regulatory charge that does not produce a criminal record but carries its own significant consequences. The two offences cover overlapping ground but have different elements, different defences, and different procedural pathways. The decision about which charge to pursue can shape the file from the outset.
The criminal defence lawyers at Davidson Gregory have decades of experience defending Criminal Code driving offences and provincial driving offences across Alberta, including failure to stop and failing to remain charges. If you have been charged or are under investigation, an experienced criminal lawyer or driving offence lawyer at Davidson Gregory can be reached at 780-482-5496 or through the contact page. The firm regularly appears in Edmonton, Calgary, Red Deer, Fort McMurray, Grande Prairie, and St. Albert.
The Bright Line: Criminal vs Regulatory
The starting point is jurisdictional. The criminal failure-to-stop offence sits under the Criminal Code of Canada and is prosecuted in the Alberta Court of Justice or, in its more serious indictable form, in the Court of King’s Bench. A conviction produces a criminal record. Fingerprinting may apply under the federal Identification of Criminals Act because the criminal offence can be prosecuted in either a more serious or a less serious form. The disposition is reportable on background checks, customs declarations, and immigration applications.
The provincial failing-to-remain offence sits under Alberta’s Traffic Safety Act. It is prosecuted in the traffic stream of the Alberta Court of Justice. A conviction produces a provincial regulatory finding rather than a criminal record. There is no fingerprinting. A failing-to-remain conviction will not appear on a CPIC criminal record check.
That distinction drives many of the consequences that flow from the conviction. The failing-to-remain offence is regulatory, but it is not minor. The Traffic Safety Act framework includes mandatory duties at the scene of an accident, owner liability where the driver flees, a power of arrest without warrant in some circumstances, and meaningful licence consequences. An experienced criminal defence lawyer can assess where a particular file sits and what consequences are realistically on the table.
The Criminal Code Failure-to-Stop Offence
The Criminal Code makes it an offence for any person who operates a conveyance and who knows or is reckless as to whether the conveyance has been involved in an accident with a person or another conveyance, to fail without reasonable excuse to stop, give their name and address, and offer assistance where someone has been injured or appears to require assistance. The offence has three forms: a basic offence, an aggravated offence where the accident caused bodily harm, and an aggravated offence where the accident caused death. The aggravated forms carry significantly higher maximum sentences.
Davidson Gregory’s third post in the driving offences series, Failure to Stop at the Scene of an Accident in Alberta, explains the elements of the criminal offence, the 2018 amendments under Bill C-46, the reasonable excuse defence, the consequences of a conviction, and the firm’s defence approach. This post focuses on the parallel provincial offence under Alberta’s Traffic Safety Act and how it differs from the criminal charge.
The Traffic Safety Act Failing-to-Remain Offence
Alberta’s Traffic Safety Act imposes specific duties on drivers involved in motor vehicle accidents on a highway. The driver of a vehicle that was directly or indirectly involved in the accident is required to remain at the scene (or, if the driver has left the scene, to immediately return unless otherwise directed by a peace officer), to render all reasonable assistance, and to produce certain identifying information in writing when requested by anyone sustaining loss or injury, by a peace officer, or by a witness.
The information that must be produced under the Traffic Safety Act is broader than the verbal name-and-address exchange under the Criminal Code. The Act requires the driver to produce the following information in writing when requested:
- the driver’s name and address;
- the driver’s operator’s licence number;
- the name and address of the registered owner of the vehicle;
- the licence plate number of the vehicle; and
- a financial responsibility card issued in respect of the vehicle.
In practice, drivers typically present the standard documents that contain this information: the operator’s licence (which provides the driver’s name, address, and operator’s licence number), the vehicle registration (which contains the registered owner’s name and address as well as the licence plate number), and the insurance card (the financial responsibility card). Whether handing over those documents in any particular case fully satisfies the statutory requirement to produce the information in writing is a fact-specific legal question on which counsel should be consulted. As a practical matter, the other driver, an investigating officer, or any other person receiving the documents will need to write down or photograph the information from each document at the scene. Without that step, the details are unlikely to be remembered after the parties leave the scene. The same information is required to process an insurance claim and to complete an accident report.
The Traffic Safety Act includes additional rules for accidents involving unattended vehicles or property damage. Where the accident is with an unattended vehicle, the driver must stop and either locate and notify the owner of the unattended vehicle of the relevant identifying information, or leave a written notice with that information in or on the unattended vehicle. Where the accident results in damage to property on or adjacent to a highway, the driver must take reasonable steps to locate and notify the owner of the property of the accident and the relevant identifying information. These rules apply alongside the primary duties to remain, render assistance, and provide written identification.
The Traffic Safety Act also imposes cascading duties on occupants and registered owners. Where the driver is incapable of providing the required information and there is another occupant capable of providing it, the occupant has the duty to provide the information. Where the information has not been provided by the driver or an occupant and the driver is not the owner, the owner has the duty to provide it once the owner learns of the accident. Where the driver is alone, is the owner, and is incapable of providing the information at the time, the driver has the duty to provide it as soon as the driver becomes capable. Failure to comply with any of these duties is a contravention.
Owner Liability Under the Traffic Safety Act
One of the most distinctive features of the Alberta failing-to-remain regime is owner liability. Under the Traffic Safety Act, if a vehicle is involved in a failing-to-remain contravention, the registered owner of the vehicle is automatically deemed to have committed a contravention, and the law presumes the owner is liable unless the owner can prove otherwise. The Criminal Code failure-to-stop offence has no analogous owner-liability provision. This pathway is unique to the provincial regime, and an owner convicted under it cannot be sentenced to jail.
Owner liability under the Traffic Safety Act is a complex and technical area of law. The interaction between the deeming provision, the express or implied consent rebuttal available to the owner, the procedural pathway selected by the Crown, and the licence and financial consequences depends on the specific facts of the case. The Court of King’s Bench addressed the implied consent rebuttal in R v Richardson, where an owner’s appeal was allowed on the basis that the evidence overcame the inference of implied consent. How the analysis applies in any particular file is a question on which an experienced traffic lawyer, driving offence lawyer, or criminal defence lawyer at Davidson Gregory should be consulted.
The Procedural Pathways
A failing-to-remain contravention under the Traffic Safety Act is prosecuted as a violation ticket under the Provincial Offences Procedure Act. There are two types of violation ticket the Crown can use, and the type chosen affects the consequences that are available on conviction.
The first type is the offence notice violation ticket under Part 3 of the Provincial Offences Procedure Act. This is the standard pay-or-contest ticket. The driver can pay the specified penalty (which acts as a guilty plea), enter a plea of not guilty and request a trial, or fail to respond and be convicted in absence. Part 3 is the mandatory pathway for offences with a specified penalty of one thousand dollars or less, and in practice almost all failing-to-remain matters proceed under Part 3.
The second type is the summons violation ticket under Part 2 of the Provincial Offences Procedure Act. This is a more formal ticket that includes a summons compelling a court appearance. The Provincial Offences Procedure Act allows the Crown to use Part 2 even for low-penalty offences if it is in the public interest to do so. Part 2 proceedings are rarer in practice than Part 3 proceedings.
The Traffic Safety Act technically also permits a notice of administrative penalty under the Provincial Administrative Penalties Act for many regulatory contraventions. In practice, however, failing-to-remain contraventions are processed through the Provincial Offences Procedure Act rather than through the administrative penalty stream.
There is one additional procedural feature unique to the failing-to-remain offence. A peace officer can arrest a person without warrant for a failing-to-remain contravention where the officer has reasonable grounds to believe that the person committed the contravention and either will continue or repeat it or has provided inadequate or questionable identification. Arrest without warrant is unusual for a provincial regulatory offence and elevates the practical seriousness of a Traffic Safety Act stop.
The Consequences of a Conviction
The consequences of a failing-to-remain conviction under the Traffic Safety Act are significant even though the offence is regulatory rather than criminal.
The Traffic Safety Act includes a court-imposed licence suspension power that allows the court to suspend an operator’s licence for up to three months on a finding of guilt for a failing-to-remain contravention. That power is available only where the proceeding is commenced under Part 2 of the Provincial Offences Procedure Act (the summons violation ticket pathway). The Traffic Safety Act expressly forecloses the suspension where the proceeding is commenced under Part 3 (the standard ticket pathway). Because failing-to-remain matters in practice usually proceed under Part 3, the court-imposed suspension is in practice unavailable on the typical file.
The practical licence consequence flows instead from the Registrar’s separate administrative disqualification power under the Traffic Safety Act. The Registrar can disqualify a person from driving and cancel or suspend the certificate of registration on a finding of guilt under the Act, subject to a fifteen-day notice requirement and the person’s opportunity to make representations. This administrative pathway runs in parallel to any court proceeding.
Fines and demerit points apply on either ticket pathway. The specified penalty for the offence is set by regulation.
Insurance premiums typically increase substantially after a failing-to-remain conviction, and coverage may be cancelled. Employment in roles requiring driving, security clearance, or background checks can be affected even though there is no criminal record, because driving abstracts often capture the conviction.
The employment consequences are particularly serious for professional drivers. Commercial drivers, ride-share and taxi drivers, delivery and courier drivers, oilfield drivers, and others whose work depends on a clean driving abstract can face termination, denial of new employment, or loss of insurability after a failing-to-remain conviction. The conviction does not produce a criminal record, but the driving abstract captures it, and many employers in commercial transport, professional driving, and emergency services review driving abstracts as part of ongoing employment requirements. For professional drivers, the employment exposure is often the most significant practical consequence of a failing-to-remain charge.
There is no criminal record. There is no fingerprinting. The CPIC database does not list the conviction. Travel to the United States is generally not affected. Permanent residents and foreign nationals do not face the inadmissibility risk that comes with a Criminal Code conviction. These are meaningful differences from the criminal failure-to-stop pathway.
The Charging Decision: When the TSA Charge Is Used Instead of (or Alongside) the Criminal Code Charge
In Alberta, the charging decision between the Criminal Code failure-to-stop offence and the Traffic Safety Act failing-to-remain offence is most often made by the police officer who attends the scene, with Crown review afterward. The same fact pattern can support either charge or both.
Officers and Crown prosecutors weigh a number of factors in choosing the pathway or choose both pathways. Where the accident involved injury or death, the criminal offence with its aggravated forms is more often selected. Where the conduct was sustained, deliberate, or accompanied by other criminal driving offences such as impaired driving or dangerous driving, the criminal pathway is more often selected. Where the conduct was a momentary failure to stop in a low-injury or property-damage scenario, the provincial pathway may be selected. The pathway can also reflect the practical reality of the available evidence: the criminal offence requires proof of knowledge and intent not to stop, and where those elements are difficult to make out, the regulatory offence offers a lower-threshold alternative.
Where police lay the more serious criminal charge at the scene, the Crown’s review of the file is a meaningful opportunity to push for a reduction to the provincial offence. An experienced criminal defence lawyer who can present the Crown with a credible case for the lower charge or a withdrawal of the charge, supported by evidence of the surrounding circumstances and the absence of the criminal-level elements, can sometimes secure a reduction or withdrawal at the disclosure stage or on early Crown contact. That argument is most effective when it is made early.
Defending a Failing-to-Remain Charge
Davidson Gregory defends failing-to-remain charges by attacking each element of the offence and by aggressively pursuing Charter remedies based on police conduct. Where the Crown’s case depends on the owner-liability framework, the firm develops the express and implied consent defence. Where the Crown’s case rests on a power of arrest without warrant, the firm assesses whether the conditions for the arrest were satisfied and whether any Charter rights to silence and to counsel were respected.
The Charter applies to provincial regulatory prosecutions where a peace officer has detained or arrested the accused. Where police conduct has breached the Canadian Charter of Rights and Freedoms, evidence may be excluded under the Charter‘s remedies provisions, sometimes with case-ending effect. Davidson Gregory has decades of experience identifying and litigating these issues.
Davidson Gregory’s failing-to-remain defence work is focused on trial preparation and trial advocacy. The cases that produce results are the cases that are prepared as if they will be tried.
Why the Timing of Legal Advice Matters
For drivers facing a failing-to-remain investigation or charge in Alberta, the timing of legal advice can matter as much as the content of it. Investigations often involve police questioning of the suspected driver or the registered owner at the scene, by telephone, or by attendance at a residence. Statements made before counsel is consulted can shape the prosecution’s case in ways that are difficult to undo later, and they can shape both the criminal pathway and the provincial pathway. Where the circumstances allow it, contacting an experienced criminal defence lawyer or driving offence lawyer early in the process can help preserve the rights that apply to the file. The post-incident period is fact-specific, and there is no general legal advice that applies to every case. An experienced driving defence lawyer at Davidson Gregory can assess the specific facts and the timing of the encounter and advise on the path forward.
Speak With a Davidson Gregory Criminal Defence Lawyer
If you have been charged with failing to remain at the scene of an accident under Alberta’s Traffic Safety Act, or with the criminal failure-to-stop offence under the Criminal Code of Canada, the criminal defence lawyers at Davidson Gregory can be reached at 780-482-5496 or through the contact page. The firm has decades of experience defending criminal driving offences and provincial driving offences across Alberta, including in Edmonton, Calgary, Red Deer, Fort McMurray, Grande Prairie, and St. Albert.
This is the fourth and concluding post in Davidson Gregory’s series on driving offences in Alberta. The first post, Dangerous Driving vs Careless Driving in Alberta: Why the Difference Matters, explains the line between criminal and regulatory driving offences. The second post, Statements to Police After a Motor Vehicle Accident in Alberta, explains the legal framework that governs statements made to police at the scene. The third post, Failure to Stop at the Scene of an Accident in Alberta, explains the criminal offence under the Criminal Code that is the parallel to the provincial charge addressed in this post.
This article is general legal information only. It is not legal advice. Reading this article does not create a lawyer-client relationship with Davidson Gregory.