Bill C-16

Criminal Code

Clause 1: New.

Clause 2: (1) Relevant portion of subsection 254(1):

254. (1) In this section and sections 255 to 258,

(2) New.

(3) Existing text of subsections 254(2) to (6):

(2) Where a peace officer reasonably suspects that a person who is operating a motor vehicle or vessel or operating or assisting in the operation of an aircraft or of railway equipment or who has the care or control of a motor vehicle, vessel or aircraft or of railway equipment, whether it is in motion or not, has alcohol in the person’s body, the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken.

(3) Where a peace officer believes on reasonable and probable grounds that a person is committing, or at any time within the preceding three hours has committed, as a result of the consumption of alcohol, an offence under section 253, the peace officer may, by demand made to that person forthwith or as soon as practicable, require that person to provide then or as soon thereafter as is practicable

(a) such samples of the person’s breath as in the opinion of a qualified technician, or

(b) where the peace officer has reasonable and probable grounds to believe that, by reason of any physical condition of the person,

(i) the person may be incapable of providing a sample of his breath, or

(ii) it would be impracticable to obtain a sample of the person’s breath,

such samples of the person’s blood, under the conditions referred to in subsection (4), as in the opinion of the qualified medical practitioner or qualified technician taking the samples

are necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in the person’s blood, and to accompany the peace officer for the purpose of enabling such samples to be taken.

(4) Samples of blood may only be taken from a person pursuant to a demand made by a peace officer under subsection (3) if the samples are taken by or under the direction of a qualified medical practitioner and the qualified medical practitioner is satisfied that the taking of those samples would not endanger the life or health of the person.

(5) Every one commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under this section.

(6) A person who is convicted of an offence committed under subsection (5) for a failure or refusal to comply with a demand made under subsection (2) or paragraph (3)(a) or (b) in respect of any transaction may not be convicted of another offence committed under subsection (5) in respect of the same transaction.

Clause 3: New.

Clause 4: (1) Existing text of subsections 255(2) and (3):

(2) Every one who commits an offence under paragraph 253(a) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

(3) Every one who commits an offence under paragraph 253(a) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for life.

(2) Relevant portion of subsection 255(4):

(4) Where a person is convicted of an offence committed under paragraph 253(a) or (b) or subsection 254(5), that person shall, for the purposes of this Act, be deemed to be convicted for a second or subsequent offence, as the case may be, if the person has previously been convicted of

(a) an offence committed under any of those provisions;

Clause 5: Existing text of subsection 256(5):

(5) Where a warrant issued pursuant to subsection (1) is executed, the peace officer shall, as soon as practicable thereafter, give a copy or, in the case of a warrant issued by telephone or other means of telecommunication, a facsimile of the warrant to the person from whom the blood samples were taken.

Clause 6: Existing text of subsection 257(2):

(2) No qualified medical practitioner by whom or under whose direction a sample of blood is taken from a person pursuant to a demand made under subsection 254(3) or a warrant issued under section 256 and no qualified technician acting under the direction of a qualified medical practitioner incurs any criminal or civil liability for anything necessarily done with reasonable care and skill in the taking of such a sample of blood.

Clause 7: (1) to (7) Relevant portion of subsection 258(1):

258. (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or in any proceedings under subsection 255(2) or (3),

...

(b) the result of an analysis of a sample of the breath or blood of the accused (other than a sample taken pursuant to a demand made under subsection 254(3)) or of the urine or other bodily substance of the accused may be admitted in evidence notwithstanding that, before the accused gave the sample, he was not warned that he need not give the sample or that the result of the analysis of the sample might be used in evidence;

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if

...

(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,

...

evidence of the results of the analyses so made is, in the absence of evidence to the contrary, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was, where the results of the analyses are the same, the concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentrations determined by the analyses;

(d) where a sample of the blood of the accused has been taken pursuant to a demand made under subsection 254(3) or otherwise with the consent of the accused or pursuant to a warrant issued under section 256, if

...

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

...

(v) an analysis was made by an analyst of at least one of the samples that was contained in a sealed approved container,

evidence of the result of the analysis is, in the absence of evidence to the contrary, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was the concentration determined by the analysis or, where more than one sample was analyzed and the results of the analyses are the same, the concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentrations determined by the analyses;

...

(h) where a sample of the blood of the accused has been taken pursuant to a demand made under subsection 254(3) or otherwise with the consent of the accused or pursuant to a warrant issued under section 256,

(i) a certificate of a qualified medical practitioner stating that

(A) the medical practitioner took the sample and that before the sample was taken he was of the opinion that the taking of blood samples from the accused would not endanger the life or health of the accused and, in the case of a demand made pursuant to a warrant issued pursuant to section 256, that by reason of any physical or mental condition of the accused that resulted from the consumption of alcohol, the accident or any other occurrence related to or resulting from the accident, the accused was unable to consent to the taking of his blood,

...

...

is evidence of the facts alleged in the certificate without proof of the signature or official character of the person appearing to have signed the certificate; and

(8) Existing text of subsections 258(2) to (5):

(2) No person is required to give a sample of urine or other bodily substance for analysis for the purposes of this section except breath or blood as required under section 254, and evidence that a person failed or refused to give such a sample or that such a sample was not taken is not admissible nor shall such a failure or refusal or the fact that a sample was not taken be the subject of comment by any person in the proceedings.

(3) In any proceedings under subsection 255(1) in respect of an offence committed under paragraph 253(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 to him by a peace officer under section 254 is admissible and the court may draw an inference therefrom adverse to the accused.

(4) 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 from the day on which samples of the blood of the accused were taken, order the release of one of the samples for the purpose of an examination or analysis thereof, subject to such terms as appear to be necessary or desirable to ensure the safeguarding of the sample and its preservation for use in any proceedings in respect of which it was retained.

(5) Where a sample of blood of an accused has been taken pursuant to a demand made under subsection 254(3) or otherwise with the consent of the accused or pursuant to a warrant issued under section 256, the sample may be tested for the presence of drugs in the blood of the accused.

Clause 8: New.

Aeronautics Act

Clause 9: Existing text of section 8.6:

8.6 Evidence relating to the presence or concentration of alcohol in the blood of a person obtained pursuant to any provision of the Criminal Code is admissible in evidence in proceedings taken against a person under this Part, and the provisions of section 258 of the Criminal Code, except paragraph 258(1)(a) thereof, apply, with such modifications as the circumstances require, to any such proceedings.

Customs Act

Clause 10: Existing text of subsection 163.5(2):

(2) A designated officer who is at a customs office and is performing the normal duties of an officer or is acting in accordance with section 99.1 has the powers and obligations of a peace officer under sections 254 and 256 of the Criminal Code and may, on demanding samples of a person’s blood or breath under subsection 254(3) of that Act, require that the person accompany the officer, or a peace officer referred to in paragraph (c) of the definition “peace officer” in section 2 of that Act, for the purpose of taking the samples.

Railway Safety Act

Clause 11: Existing text of subsection 41(7):

(7) Evidence relating to the presence or concentration of alcohol in the blood of a person obtained pursuant to any provision of the Criminal Code is admissible in evidence in proceedings taken against a person under this Act in respect of a contravention of regulations respecting the use of alcohol, and section 258 of the Criminal Code applies, with such modifications as the circumstances require, to any such proceedings.