R. v. Vacca, 2026 ONSC 4353

Court File and Parties

CITATION: R. v. Vacca, 2026 ONSC 4353

COURT FILE NO.: CR-25-175-AP

DATE: 2026-07-28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R v. Anthony Vacca

BEFORE: Latimer, J.

COUNSEL: A. Furgiuele for the Appellant /H. Limheng for the Crown Respondent

HEARD: February 25, 2026

REASONS FOR DECISION

(Summary Conviction Appeal)

1Shortly before 10:00 PM on December 4, 2022, a vehicle driven by the appellant struck a median on Portage Road in the Chippawa area of Niagara Falls, rolling over and ending up on its roof. The appellant extracted himself from the vehicle and walked twenty feet to a nearby gas station, where he called his father and told him what had occurred. It was an accepted fact at trial that the appellant did not personally possess a cell phone.

2A citizen nearby saw the accident, saw the appellant walk to the gas station, and called 911 to report the overturned vehicle. An attempt to speak to the appellant was crudely rebuffed.

3The appellant, looking for a bathroom, left the gas station and walked to a restaurant approximately 200 metres further away. He entered the restaurant, borrowed the phone, and walked into the washroom.

4The 911 call was relayed over police radio. Two uniform officers were assigned to attend to the call while another, Sergeant Rancourt, was in the area and heard the call. She saw the appellant enter the restaurant and then the washroom. She walked into the restaurant, opened the washroom door, and arrested the appellant for “fail to remain”. She testified that this arrest was part of an “ongoing” investigation. He was handcuffed behind his back and brought to Rancourt’s cruiser. Rights to counsel were not immediately provided.

5Evidence was subsequently obtained that led to the appellant being charged with three Criminal Code offences: failing to remain, impaired operation of a motor vehicle and refusing a breath sample. The fail to remain charge was withdrawn by the Crown one month before trial. The trial proceeded on the other two charges. A multi-day blended trial/Charter application addressed several issues, including:

1. The credibility of the various witnesses

2. Whether impairment had been proven to the criminal standard

3. Whether the elements of the refuse offence had been satisfied

4. Whether the police violated the appellant’s right to privacy in the cell area of the station

5. Whether the appellant’s impaired driving arrest was lawful

6. Whether the appellant’s initial arrest for “fail to remain” was lawful

6It is this last issue that is the subject of this conviction appeal. In my view, notwithstanding otherwise thorough reasons¹, the trial judge did not appropriately engage with the evidentiary questions raised by the “fail to remain” arrest. The Crown bore the burden of establishing that this warrantless arrest, a stepping stone to an eventual breath demand, was reasonable: R v Gerson-Foster, 2019 ONCA 405, at para. 75. The issue was not exclusively whether this was a Highway Traffic Act arrest or a Criminal Code arrest, although that detail was highly relevant. The issue in its entirety was broader and required the trial judge to assess how the available information subjectively led Rancourt to believe that a s. 200(1) HTA infraction had taken place, and whether that subjective belief, if held, was objectively justifiable: R v Beaver, 2022 SCC 54, [2022] 3 SCR 718, at para. 72; R. v. Bush, 2010 ONCA 554, at paras. 36-48. Put another way, the trial judge reduced the issue to a question of statutory authority. Determining the source of the officer’s authority was only the first step. The next inquiry was whether the decision to exercise that authority was lawful and justified in the circumstances.

7I will review the relevant facts available to the arresting officer before moving to section 200(1) of the HTA and the necessary Charter inquiry that was absent in this case.

I. Facts

8As reviewed above, a single vehicle accident occurred on a December evening. There was damage to the appellant’s vehicle and to what he apparently struck - a small brick wall located on a median. No other vehicles or individuals were involved. No injuries were occasioned.

9The appellant walked away from his upturned vehicle to a gas station twenty feet away, and then from there to a nearby restaurant approximately 200 metres away.

10Sgt. Rancourt was nearby when she heard the radio call. She drove her cruiser into the plaza and looked for the driver. She testified she saw a male matching the description in the restaurant, and she believed that it was the driver from the accident. She described the Highway Traffic Act investigation as “ongoing”. It was on these facts that she made the remarkable decision to enter a public washroom and arrest a person of the opposite gender for the HTA infraction of fail to remain. Rancourt then proceeded to handcuff the appellant to the rear and walk him out of the restaurant to her cruiser.

II. Section 200(1) of the Highway Traffic Act

11Operating a vehicle that becomes involved in an accident engages regulatory and, potentially, criminal obligations. Under the HTA, a person in charge of a vehicle involved in an accident² is obligated under section 200(1) to:

(a) remain at or immediately return to the scene

(b) render all possible assistance; and

(c) upon request, give [information in writing] to any police officer or witness.

12Section 199 additionally places a reporting obligation on a driver when the perceived damage exceeds an amount set by regulation (currently $5000), and section 201 provides a different reporting obligation for property damage like what occurred here.

13The legislative policy behind section 200(1) of the HTA is obvious – to ensure that drivers discharge their obligations to involved parties at accident scenes, providing assistance where appropriate and sharing relevant information (e.g. insurance information, driver’s license, etc.) when requested. Driving is a regulated privilege, not a right, and obligations arise as a result. Section 200(1) requires information sharing between involved parties following an accident (the (c) obligation) and requires drivers to observe basic human decency and render assistance to other involved parties where required (the (b) obligation). These obligations cannot be performed by drivers who do not remain at the scene (the (a) obligation). The obligation to “remain or immediately return” must be interpreted in light of the obligations contained in (b) and (c)³, as well as the surrounding HTA provisions (ss. 199-201).⁴

14Motor vehicle accidents also potentially give rise to civil or criminal liability. If a driver fails to stop at an accident involving another person or vehicle because of a concern regarding civil or criminal liability, they commit the related Criminal Code fail to remain offence.⁵

15In my view, an assessment of whether the appellant’s arrest was lawful required an assessment of precisely what he was being arrested for. Sgt. Rancourt testified she thought he was “fleeing” when she saw him in the restaurant. Before an officer exercises their discretion to arrest under section 217(1) of the HTA, it would be reasonable to pause and internally inquire, ‘fleeing from what obligation?’ There was no one else involved in the accident to assist, nor anyone involved seeking information from the appellant. The arrest might have been reasonable had the officer been concerned that the appellant was attempting to escape “civil or criminal liability”, but she expressly disavowed reliance on the criminal provision during her testimony.⁶

16A cursory inquiry of the appellant would have revealed he was not in possession of a cell phone and had left the accident scene to call his father. What are the obligations of a driver to remain at such an accident scene, at night, in December, without a phone? Was he “fleeing”, or was he in compliance with section 200(1) of the HTA? Was he in the process of making a call at a nearby location and then returning to the vehicle? Engaging with the specific circumstances was necessary for an appropriate inquiry into reasonable and probable grounds to occur. The trial judge failed to provide fulsome reasons⁷ regarding why he was satisfied that a HTA arrest in this context was “fully supported by the circumstances as known by the officer” (page 95, Transcript, Reasons for Judgment).

17I acknowledge the Crown’s submission that the predominant focus was on whether the arrest was pursuant to the Criminal Code or the Highway Traffic Act. Both sides agreed that a Criminal Code fail to remain arrest would have been unlawful, as the accident did not involve another person or conveyance. Sergeant Rancourt’s notes, as I understand the trial record, did not expressly reference a HTA arrest. Given the fact that the Code offence was subsequently charged, defence counsel, it appears, reasonably believed that was her intention when she conducted the initial arrest. When her in-court answer specified the HTA fail to remain offence as the source of her authority, defence counsel reacted by challenging that statement based on the charging document and the evidence of the other officers. The statutory question became the focus of attention on this branch of the Charter application.

18Generally speaking, it is not appropriate for Charter issues to be raised for the first time on appeal. The Crown submits at paragraph 38 of their factum that this is essentially what is happening here. Instead of challenging a factual finding regarding what statute Sgt. Rancourt relied upon, the appellant is making a “novel” argument not raised at trial. This submission gives me pause, as I appreciate the focus of oral submissions at trial was on what might be referred to as the ‘CCC vs HTA’⁸ issue. However, I am ultimately satisfied that this is not a new issue, but instead a continued inquiry into the broader legality of the initial arrest. I am satisfied it is appropriate for me to assess and intervene on this issue for the following reasons:

1. The Crown bore an onus to establish that the initial arrest was lawful;

2. Sgt. Rancourt’s perspective that she arrested under the HTA was not evident in Crown disclosure or the charging documents (p. 75, Transcript, April 29, 2024). In such circumstances, fairness demands a more flexible approach;

3. While not as prominent as the ‘CCC vs HTA’ arguments, both parties did make submissions regarding whether the HTA elements were made out and the arrest was lawful (pp. 22-25, 35-37, Transcript, September 3, 2024).

19In his reasons, the trial judge assessed whether he believed Sgt. Rancourt that her intention was to arrest under the HTA. He accepted that it was. While I might not have come to the same conclusion, I defer to that finding on appeal. However, the trial judge erred by failing to meaningfully engage the logical next question: did s. 200(1) of the HTA justify a lawful arrest in these factual circumstances? That question was not meaningfully answered in these reasons. As a result, I am satisfied a legal error occurred during the trial judge’s Charter analysis.

20I am further satisfied that this is not an appropriate case to apply the curative proviso. The impaired and refuse convictions rely upon evidence obtained following the initial arrest, while the appellant was in police custody. I am not satisfied that “the outcome of the trial, irrespective of the error, would necessarily have been the same”: R v. O’Brien, 2011 SCC 29, [2011] 2 SCR 485, at 498. A new trial is required.

III. Disposition

21Conviction appeal allowed, new trial ordered. As a result, the sentence appeal does not arise. The information will return to courtroom #6 in the Robert S.K. Welch Courthouse, 59 Church Street, St. Catharines, Ontario at 10:00 AM on August 12, 2026 to set a new date for trial. The appellant is ordered to appear on that date, either personally or by agent.

LATIMER J.

CITATION: R v. Vacca, 2026 ONSC 4353

COURT FILE NO.: CR-25-175-AP

DATE: 2026-07-28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

His Majesty the King Federal Crown

• and -

Anthony Vacca Applicant

REASONS FOR DECISION

LATIMER J

Released: July 28, 2026

Footnotes

1. 1As this matter is being returned for a new trial, I expressly make no comment on the sentencing issue also raised in this appeal. Should this case reach sentencing again, the parties should assist the trial judge with full and proper submissions on this uncommon and complicated sentencing issue.
2. 2“Accident” is not defined in the Highway Traffic Act but has been given broad judicial interpretation: R v. Hill, 1973 CanLII 36 (SCC), [1975] 2 SCR 402. Justice Dickson in Hill provides a memorable description at page 405: “[accident] is not easy of definition as its meaning has a certain chameleon-like quality, changing its colour with the context in which it is found.”
3. 3R. v. Weir, 1992 CarswellOnt 7 (Prov. Ct.), at paras. 10, 16.
4. 4R v. Hajivasilis, 2013 ONCA 27, at para. 23, 28-35.
5. 5Section 320.16(1) of the Criminal Code has the subheading, “Failure to stop at an accident”. However, the terms “fail to stop” and “fail to remain” are used interchangeably by criminal justice system participants – see, for example, R v. Refaeh, 2026 ONCA 438, at paras. 1, 5, 8; R v. Durani, 2022 ONCA 17, at paras. 1, 5; R. v. Kuldip, 1990 CanLII 64 (SCC), [1990] 3 SCR 618. Contrary to the trial Crown’s submissions (p.34, Transcript, September 3, 2024), nothing should be taken from the use of one term or another by a police officer, lawyer or judge; both are commonly employed when referring to the criminal fail to remain offence.
6. 6The officer testified that she arrested the appellant in the restaurant washroom without a warrant during an “ongoing” Highway Traffic Act investigation into a single vehicle accident where the appellant’s vehicle remained at the scene. While strictly speaking not an issue for me to resolve on this appeal, on the available facts this arrest decision certainly seems to test the boundaries of the “broad discretion” afforded to peace officers under s. 217(2) of the HTA: R v. Tuduce, 2014 ONCA 547, at para. 46.
7. 7The duty to provide reasons extends to Charter rulings: R v. Greer, 2020 ONCA 795, at para. 114.
8. 8Criminal Code of Canada vs Highway Traffic Act.