R. v. McColl (M.V.),

• Judge: Conrad,Hunt,Park
• Neutral Citation: 2008 ABCA 287
• Citation: 2008 ABCA 287,(2008), 437 A.R. 81 (CA),437 AR 81,(2008), 437 AR 81 (CA),437 A.R. 81
• Date: 18 August 2008
• Court: Court of Appeal (Alberta)

R. v. McColl (M.V.) (2008), 437 A.R. 81 (CA);

      433 W.A.C. 81

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. AU.128

Her Majesty The Queen (appellant) v. Michael Vincent McColl (respondent)

(0701-0085-A; 2008 ABCA 287)

Indexed As: R. v. McColl (M.V.)

Alberta Court of Appeal

Conrad and Hunt, JJ.A., and Park, J.(ad hoc)

August 18, 2008.

Summary:

A vehicle driven by the accused drove the wrong way down a divided street and struck a tree. The accused and three passengers were injured. All had been drinking. The three passengers walked to a nearby convenience store to call for medical assistance. The accused offered no assistance and walked away. The accused, who suffered a concussion, broken ribs and a bruised collarbone, alleged that he awoke at his mother-in-law's house the next morning and had no memory of leaving the accident scene. The accused was charged under s. 252 of the Criminal Code with leaving the scene of an accident.

The Alberta Provincial Court acquitted the accused. Section 252(1)(a) made it an offence to leave the scene of an accident with another person, with intent to escape civil or criminal liability, without offering assistance to an injured person who appeared to need assistance. Section 252(2) provided that evidence that an accused fled an accident scene without offering assistance to an injured person who appeared to require assistance was, absent evidence to the contrary, proof of an intent to escape civil or criminal liability. The court held that s. 252(1)(a) did not apply to single vehicle accidents where a passenger was injured. The Crown appealed.

The Alberta Court of Appeal allowed the appeal and ordered a new trial. Section 252(1)(a) applied to single vehicle accidents injuring a passenger. A new trial was necessary, as the trial judge, having found that s. 252(1)(a) did not apply, made no findings as to whether the presumed intent in s. 252(2) was rebutted on the evidence. Conrad, J.A., dissenting, held that s. 252(1)(a) applied to accidents "with" another person, which excluded passengers and was intended to apply only where a person outside the vehicle (e.g., pedestrian) was struck by the vehicle.

Criminal Law - Topic 1356

Motor vehicles - Failing to stop or remain at accident scene - Elements - The accused was the driver of a vehicle that left the road and struck a tree, injuring himself and his three passengers - As the passengers walked to a convenience store to call for medical assistance, the accused walked away without offering any assistance - The accused was charged under s. 252(1)(a) of the Criminal Code with leaving the scene of an accident - Section 252(1)(a) provided that "every person commits an offence who has the care, charge or control of a vehicle ... that is involved in an accident with (a) another person ... and with intent to escape civil or criminal liability fails to stop the vehicle, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance" - The trial judge acquitted the accused on the basis that s. 252(1)(a) was ambiguous and not intended to apply to single vehicle accidents injuring a passenger - The Alberta Court of Appeal disagreed - Section 252(1)(a) was clearly intended to apply to a single vehicle accident where a passenger was injured and needed medical assistance - The court considered the "mischief" s. 252(1)(a) was intended to rectify, the intention of the original enactment (unaltered by amendments) to punish drivers leaving an accident scene without rendering needed assistance to injured persons and a series of cases interpreting s. 252(1)(a) broadly and purposively - Conrad, J.A., dissenting, held that s. 252(1)(a) applied to accidents "with" another person, which excluded passengers and was intended to apply only where a person outside the vehicle (e.g., pedestrian) was struck by the vehicle - See paragraphs 1 to 29.

Statutes - Topic 518

Interpretation - General principles - Mischief rule - [See Criminal Law - Topic 1356 ].

Statutes - Topic 7102

Operation and effect - Consolidation and revision - Effect of - The Alberta Court of Appeal stated that "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 paragraph 22.

Cases Noticed:

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 8].

R. v. Mihalick (C.W.) (1990), 28 M.V.R.(2d) 114 (B.C.C.A.), agreed with [para. 10].

R. v. Vellow (1990), 27 M.V.R. (2d) 59 (Ont. Sup. Ct.), disagreed with [para. 10].

R. v. Roche, [1983] 1 S.C.R. 491; 47 N.R. 217, refd to. [para. 12].

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81; 95 C.C.C.(3d) 481, refd to. [para. 14].

Reference Re Firearms Act (Can.), [2000] 1 S.C.R. 783; 254 N.R. 201; 261 A.R. 201; 225 W.A.C. 201; 2000 SCC 31, refd to. [para. 23].

R. v. Hill, [1975] 2 S.C.R. 402; 1 N.R. 136, refd to. [para. 26].

R. v. Gosselin (1988), 31 O.A.C. 155; 45 C.C.C.(3d) 568 (C.A.), refd to. [para. 26].

R. v. Johnston (T.R.), [2002] A.R. Uned. 289; 56 W.C.B.(2d) 89; 2002 ABCA 281, refd to. [para. 27].

R. v. Baggett (1975), 26 C.C.C.(2d) 464 (B.C.S.C.), refd to. [para. 27].

R. v. Hansen (1988), 46 C.C.C.(3d) 504 (B.C.C.A.), refd to. [para. 27].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 46].

Marcotte v. Canada (Deputy Attorney General), [1976] 1 S.C.R. 108; 3 N.R. 613, refd to. [para. 47].

United States of America v. Barrientos (1995), 178 A.R. 1; 110 W.A.C. 1; 36 Alta. L.R.(3d) 59; 103 C.C.C.(3d) 481 (C.A.), refd to. [para. 48].

R. v. Anthes Business Forms Ltd. et al. (1975), 10 O.R. (2d) 153, 26 C.C.C. (2d) 349 (C.A.), refd to. [para. 77].

R. v. Vezeau, [1977] 2 S.C.R. 277; 8 N.R. 235, refd to. [para. 77].

R. v. Colby (1989), 100 A.R. 142; 52 C.C.C.(3d) 321 (C.A.), refd to. [para. 88].

R. v. Nolet (Charette) (1980), 4 M.V.R. 265 (Ont. C.A.), refd to. [para. 88].

R. v. Adler, [1981] 4 W.W.R. 379; 59 C.C.C.(2d) 517 (Sask. C.A.), refd to. [para. 88].

R. v. Cassidy, [1989] 2 S.C.R. 345; 100 N.R. 321; 36 O.A.C. 1; 50 C.C.C.(3d) 193, refd to. [para. 93].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 252(1), sect. 252(1.2), sect. 252(2) [para. 9].

Authors and Works Noticed:

Canada, Hansard, House of Commons Debates, No. 241 (June 9, 1999), p. 1835ff [para. 23].

Côté, Pierre-André, Interpretation of Legislation in Canada (3rd Ed. 2000), p. 422 [para. 22].

Hansard - see Canada, Hansard, House of Commons Debates.

Counsel:

E.J. Tolppanen, for the appellant;

No one appearing for the respondent.

This appeal was heard on April 8, 2008, before Conrad and Hunt, JJ.A., and Park, J.(ad hoc), of the Alberta Court of Appeal.

On August 18, 2008, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Hunt, J.A. (Park, J.(ad hoc), concurring) - see paragraphs 1 to 29;

Conrad, J.A., dissenting - see paragraphs 30 to 95.