Tackling Violent Crime Act (S.C. 2008, c. 6)

20. The Act is amended by adding the following after section 254:

Marginal note:R.S., c. 27 (1st Supp.), s. 36; 1999, c. 32, s. 3

• 21. (1) Subparagraphs 255(1)(a)(i) to (iii) of the Act are replaced by the following:

  • (i) for a first offence, to a fine of not less than $1,000,

  • (ii) for a second offence, to imprisonment for not less than 30 days, and

  • (iii) for each subsequent offence, to imprisonment for not less than 120 days;

• Marginal note:R.S., c. 27 (1st Supp.), s. 36

  (2) Paragraph 255(1)(c) of the Act is replaced by the following:

  • (c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than 18 months.

• Marginal note:R.S., c. 27 (1st Supp.), s. 36; 2000, c. 25, s. 2

  (3) Subsections 255(2) and (3) of the Act are replaced by the following:

  • Marginal note:Impaired driving causing bodily harm

    (2) Everyone who commits an offence under paragraph 253(1)(a) and causes bodily harm to another person as a result is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

  • Marginal note:Blood alcohol level over legal limit — bodily harm

    (2.1) Everyone who, while committing an offence under paragraph 253(1)(b), causes an accident resulting in bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

  • Marginal note:Failure or refusal to provide sample — bodily harm

    (2.2) Everyone who commits an offence under subsection 254(5) and, at the time of committing the offence, knows or ought to know that their operation of the motor vehicle, vessel, aircraft or railway equipment, their assistance in the operation of the aircraft or railway equipment or their care or control of the motor vehicle, vessel, aircraft or railway equipment caused an accident resulting in bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

  • Marginal note:Impaired driving causing death

    (3) Everyone who commits an offence under paragraph 253(1)(a) and causes the death of another person as a result is guilty of an indictable offence and liable to imprisonment for life.

  • Marginal note:Blood alcohol level over legal limit — death

    (3.1) Everyone who, while committing an offence under paragraph 253(1)(b), causes an accident resulting in the death of another person is guilty of an indictable offence and liable to imprisonment for life.

  • Marginal note:Failure or refusal to provide sample — death

    (3.2) Everyone who commits an offence under subsection 254(5) and, at the time of committing the offence, knows or ought to know that their operation of the motor vehicle, vessel, aircraft or railway equipment, their assistance in the operation of the aircraft or railway equipment or their care or control of the motor vehicle, vessel, aircraft or railway equipment caused an accident resulting in the death of another person, or in bodily harm to another person whose death ensues, is guilty of an indictable offence and liable to imprisonment for life.

• Marginal note:R.S., c. 27 (1st Supp.), s. 36

  (4) The portion of subsection 255(4) of the Act before paragraph (b) is replaced by the following:

  • Marginal note:Previous convictions

    (4) A person who is convicted of an offence committed under section 253 or subsection 254(5) is, for the purposes of this Act, deemed to be convicted for a second or subsequent offence, as the case may be, if they have previously been convicted of

    • (a) an offence committed under either of those provisions;

Marginal note:R.S., c. 27 (1st Supp.), s. 36

22. Subsection 256(5) of the Act is replaced by the following:

Marginal note:R.S., c. 27 (1st Supp.), s. 36

23. Subsection 257(2) of the Act is replaced by the following:

Marginal note:R.S., c. 27 (1st Supp.), s. 36

• 24. (1) The portion of subsection 258(1) of the Act before paragraph (a) is replaced by the following:

  Marginal note:Proceedings under section 255

  • 258. (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

• Marginal note:R.S., c. 27 (1st Supp.), s. 36

  (2) Paragraph 258(1)(b) of the Act is replaced by the following:

  • (b) the result of an analysis of a sample of the accused’s breath, blood, urine or other bodily substance — other than a sample taken under subsection 254(3), (3.3) or (3.4) — may be admitted in evidence even if the accused was not warned before they gave the sample that they need not give the sample or that the result of the analysis of the sample might be used in evidence;

• Marginal note:R.S., c. 27 (1st Supp.), s. 36

  (3) The portion of paragraph 258(1)(c) of the French version of the Act before subparagraph (i) is replaced by the following:

  • c) lorsque des échantillons de l’haleine de l’accusé ont été prélevés conformément à un ordre donné en vertu du paragraphe 254(3), la preuve des résultats des analyses fait foi de façon concluante, en l’absence de toute preuve tendant à démontrer à la fois que les résultats des analyses montrant une alcoolémie supérieure à quatre-vingts milligrammes d’alcool par cent millilitres de sang découlent du mauvais fonctionnement ou de l’utilisation incorrecte de l’alcootest approuvé et que l’alcoolémie de l’accusé au moment où l’infraction aurait été commise ne dépassait pas quatre-vingts milligrammes d’alcool par cent millilitres de sang, de l’alcoolémie de l’accusé tant au moment des analyses qu’à celui où l’infraction aurait été commise, ce taux correspondant aux résultats de ces analyses, lorsqu’ils sont identiques, ou au plus faible d’entre eux s’ils sont différents, si les conditions suivantes sont réunies :

• Marginal note:R.S., c. 27 (1st Supp.), s. 36

  (4) The portion of paragraph 258(1)(c) of the English version of the Act after subparagraph (iv) is replaced by the following:

  evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;

• Marginal note:R.S., c. 27 (1st Supp.), s. 36; 1997, c. 18, ss. 10(1) and (2)

  (5) Paragraphs 258(1)(d) and (d.1) of the Act are replaced by the following:

  • (d) if a sample of the accused’s blood has been taken under subsection 254(3) or section 256 or with the accused’s consent and if

    • (i) at the time the sample was taken, the person taking the sample took an additional sample of the blood of the accused and one of the samples was retained to permit an analysis of it to be made by or on behalf of the accused and, in the case where the accused makes a request within six months from the taking of the samples, one of the samples was ordered to be released under subsection (4),

    • (ii) both samples referred to in subparagraph (i) were taken as soon as practicable and in any event not later than two hours after the time when the offence was alleged to have been committed,

    • (iii) both samples referred to in subparagraph (i) were taken by a qualified medical practitioner or a qualified technician under the direction of a qualified medical practitioner,

    • (iv) both samples referred to in subparagraph (i) were received from the accused directly into, or placed directly into, approved containers that were subsequently sealed, and

    • (v) an analysis was made by an analyst of at least one of the samples,

    evidence of the result of the analysis is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the samples were taken and at the time when the offence was alleged to have been committed was the concentration determined by the analysis or, if more than one sample was analyzed and the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the analysis was performed improperly, that the improper performance resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;

  • (d.01) for greater certainty, evidence tending to show that an approved instrument was malfunctioning or was operated improperly, or that an analysis of a sample of the accused’s blood was performed improperly, does not include evidence of

    • (i) the amount of alcohol that the accused consumed,

    • (ii) the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused’s body, or

    • (iii) a calculation based on that evidence of what the concentration of alcohol in the accused’s blood would have been at the time when the offence was alleged to have been committed;

  • (d.1) if samples of the accused’s breath or a sample of the accused’s blood have been taken as described in paragraph (c) or (d) under the conditions described in that paragraph and the results of the analyses show a concentration of alcohol in blood exceeding 80 mg of alcohol in 100 mL of blood, evidence of the results of the analyses is proof that the concentration of alcohol in the accused’s blood at the time when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 mL of blood, in the absence of evidence tending to show that the accused’s consumption of alcohol was consistent with both

    • (i) a concentration of alcohol in the accused’s blood that did not exceed 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed, and

    • (ii) the concentration of alcohol in the accused’s blood as determined under paragraph (c) or (d), as the case may be, at the time when the sample or samples were taken;

• (6) Subsection 258(1) of the Act is amended by adding the following after paragraph (f):

  • (f.1) the document printed out from an approved instrument and signed by a qualified technician who certifies it to be the printout produced by the approved instrument when it made the analysis of a sample of the accused’s breath is evidence of the facts alleged in the document without proof of the signature or official character of the person appearing to have signed it;

• Marginal note:R.S., c. 27 (1st Supp.), s. 36

  (7) The portion of paragraph 258(1)(h) of the Act before subparagraph (i) is replaced by the following:

  • (h) if a sample of the accused’s blood has been taken under subsection 254(3) or (3.4) or section 256 or with the accused’s consent,

• Marginal note:R.S., c. 27 (1st Supp.), s. 36

  (8) Clause 258(1)(h)(i)(A) of the Act is replaced by the following:

  • (A) they took the sample and before the sample was taken they were of the opinion that taking it would not endanger the accused’s life or health and, in the case of a demand made under section 256, that by reason of any physical or mental condition of the accused that resulted from the consumption of alcohol or a drug, the accident or any other occurrence related to or resulting from the accident, the accused was unable to consent to the taking of the sample,

• Marginal note:R.S., c. 27 (1st Supp.), s. 36; 1997, c. 18, s. 10(3)

  (9) Subsections 258(2) to (6) of the Act are replaced by the following:

  • Marginal note:Evidence of failure to give sample

    (2) Unless a person is required to give a sample of a bodily substance under paragraph 254(2)(b) or subsection 254(3), (3.3) or (3.4), evidence that they failed or refused to give a sample for analysis for the purposes of this section or that a sample was not taken is not admissible and the failure, refusal or fact that a sample was not taken shall not be the subject of comment by any person in the proceedings.

  • Marginal note:Evidence of failure to comply with demand

    (3) In any proceedings under subsection 255(1) in respect of an offence committed under paragraph 253(1)(a) or in any proceedings under subsection 255(2) or (3), evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made under section 254 is admissible and the court may draw an inference adverse to the accused from that evidence.

  • Marginal note:Release of sample for analysis

    (4) If, at the time a sample of an accused’s blood is taken, an additional sample is taken and retained, a judge of a superior court of criminal jurisdiction or a court of criminal jurisdiction shall, on the summary application of the accused made within six months after the day on which the samples were taken, order the release of one of the samples for the purpose of examination or analysis, subject to any terms that appear to be necessary or desirable to ensure that the sample is safeguarded and preserved for use in any proceedings in respect of which it was taken.

  • Marginal note:Testing of blood for concentration of a drug

    (5) A sample of an accused’s blood taken under subsection 254(3) or section 256 or with the accused’s consent for the purpose of analysis to determine the concentration, if any, of alcohol in the blood may be tested to determine the concentration, if any, of a drug in the blood.

  • Marginal note:Attendance and right to cross-examine

    (6) A party against whom a certificate described in paragraph (1)(e), (f), (f.1), (g), (h) or (i) is produced may, with leave of the court, require the attendance of the qualified medical practitioner, analyst or qualified technician, as the case may be, for the purposes of cross-examination.