Know your rights at an accident scene

Any collision involving serious injuries or fatalities is tragic, and it can be a harrowing experience for everyone involved. We were recently reminded of that when a homeless woman was killed by a garbage truck making its rounds in Toronto.

But every time such tragedies makes headlines, we are also reminded about things transportation companies and their drivers should do when dealing with such an incident.

When serious injuries or fatalities are involved, a driver and their employer face the risk of being charged under various provisions of the Ontario Highway Traffic Act (or another province’s similar legislation) and the Criminal Code.

Under the Ontario Highway Traffic Act, a driver may be charged with “careless driving causing bodily harm or death”, which carries a potential penalty of demerit points; a fine between $2,000 and $50,000 along with up to two years in prison; and a potential five-year licence suspension. Under the Criminal Code, a driver may be charged with “dangerous operation of motor vehicles”, which carries a harsher penalty. In the case of bodily injury, up to 10 years in prison. In the case of a fatality, up to 14 years in prison.

The Highway Traffic Act requires drivers to report an accident that results in property damage or personal injuries to the nearest police officer. They’re also obligated to remain at the scene, offer assistance, and when requested provide their name, licence number and jurisdiction, insurance policy details, and the name and address of the vehicle owner.

But drivers and employers should also be aware of the interplay between this duty to cooperate and rights for the accused under the Canadian Charter of Rights and Freedoms. These include the right to remain silent, the right to counsel, and the right upon being arrested to be promptly informed of the reasons why.

Sometimes during an investigation, a police officer will come to believe that the driver has committed an offence under the Highway Traffic Act or Criminal Code. If this happens, the police officer must “caution” the driver – in other words, read them their rights. Generally speaking, this is the moment when the driver’s Charter rights are engaged.

From then on, the driver has the right to remain silent, and the right to speak with counsel. If a caution is not properly given by the police, it might mean that any subsequent statement by the driver is inadmissible if the case goes to trial.

If a driver acknowledges that they understand the caution – but continues to supply damaging information, maybe because they’re fearful or want to be helpful – that information can be used as evidence.

Drivers should make every effort to write down where and when a caution was given to them, and exactly what was said. If a caution is given, drivers should bear in mind that anything they say from that point onward could come back to haunt them later.

It’s why drivers should be urged to:

• Remain calm. Try not to get upset or overly defensive.
• Report an accident immediately to their employer.
• Report an accident to the nearest police officer and cooperate within reason. This means answering questions honestly and as simply as possible. Remember, there is no need to volunteer more information than is being asked.
• Try to make notes about what happens during the investigation. Smartphones can be used to take pictures, record details, and write down notes. If police ask them to stop, they should comply with the directions but take note of who gave the directions and when.
• Take the time to understand any questions before answering.
• Read everything carefully and ensure they understand everything before signing a document. It’s important to note anything that’s objectionable, and ask for clarification in writing or on video if needed.
• Note what a police officer says when delivering a “caution”, who said it, and when. At that point, drivers shouldn’t say or sign anything further. This is when they should call their employer, and if an employer isn’t available they should immediately call a lawyer. When in doubt, drivers should ask what their rights are and if they’re being cautioned.

Employers, meanwhile, are urged to provide contacts that can offer around-the-clock assistance and support. If the call is about an accident that involves serious injury or death, employers should head straight to the scene to offer the drivers any necessary support.

• James Manson of Fernandes Hearn LLP can be reached 416-203-9820, or jmanson@fernandeshearn.com. This column is intended for information purposes only and does not constitute legal advice.