Bill C-16

1st Session, 38th Parliament,

53-54 Elizabeth II, 2004-2005

house of commons of canada

BILL C-16

An Act to amend the Criminal Code (impaired driving) and to make consequential amendments to other Acts

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

CRIMINAL CODE

1. Section 253 of the Criminal Code is renumbered as subsection 253(1) and is amended by adding the following:

(2) For greater certainty, the reference to impairment by alcohol or a drug in paragraph (1)(a) includes impairment by a combination of alcohol and a drug.

2. (1) The portion of subsection 254(1) of the Act before the definition “analyst” is replaced by the following:

254. (1) In this section and sections 254.1 to 258.1,

(2) Subsection 254(1) of the Act is amended by adding the following in alphabetical order:

“evaluating officer” means a peace officer who is qualified under the regulations to conduct evaluations under subsection (3.1);

(3) Subsections 254(2) to (6) of the Act are replaced by the following:

(2) If a peace officer has reasonable grounds to suspect that a person who is operating a motor vehicle or vessel or operating or assisting in the operation of an aircraft or railway equipment or who has the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it is in motion or not, has alcohol or a drug in their body, the peace officer may, by demand, require the person

(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and

(b) in the case of alcohol, to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, or

(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood; and

(b) to accompany the peace officer for that purpose.

(3.1) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under paragraph 253(1)(a) as a result of the consumption of a drug or of a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose.

(3.2) If the evaluating officer has reasonable grounds to suspect that the person has alcohol in their body and if a demand was not made under paragraph (2)(b) or subsection (3), the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, a sample of breath that, in the evaluating officer’s opinion, will enable a proper analysis to be made by means of an approved screening device.

(3.3) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person’s ability to operate a vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable,

(a) a sample of either oral fluid or urine that, in the evaluating officer’s opinion, will enable a proper analysis to be made to determine whether the person has a drug in their body; or

(b) samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine whether the person has a drug in their body.

(4) Samples of blood may be taken from a person under subsection (3) or (3.3) only by or under the direction of a qualified medical practitioner who is satisfied that taking the samples would not endanger the person’s life or health.

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

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

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

254.1 (1) The Governor in Council may make regulations

(a) respecting the qualifications and training of evaluating officers;

(b) prescribing the physical coordination tests to be conducted under paragraph 254(2)(a); and

(c) prescribing the tests to be conducted and procedures to be followed during an evaluation under subsection 254(3.1).

(2) A regulation may incorporate any material by reference either as it exists on a specified date or as amended from time to time.

(3) For greater certainty, material does not become a regulation for the purposes of the Statutory Instruments Act because it is incorporated by reference.

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

(2) Every one 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 ten years.

(3) Every one 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.

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

(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;

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

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

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

(2) No qualified medical practitioner by whom or under whose direction a sample of blood is taken from a person under subsection 254(3) or (3.3) or 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 when taking the sample.

7. (1) 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), (3.2) or (3.3) — may be admitted in evidence even though 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;

(2) Subparagraph 258(1)(c)(ii) of the Act is replaced by the following:

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

(3) The portion of paragraph 258(1)(d) of the Act before subparagraph (i) is 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

(4) Subparagraph 258(1)(d)(ii) of the Act is replaced by the following:

(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,

(5) Subparagraph 258(1)(d)(v) of the Act is replaced by the following:

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

(6) 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 (3.3) or section 256 or with the accused’s consent,

(7) 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,

(8) Subsections 258(2) to (5) of the Act are replaced by the following:

(2) Unless a person is required to give a sample of a bodily substance under paragraph 254(2)(b) or subsection 254(3), (3.2) or (3.3), 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.

(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.

(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 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.

(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.

8. The Act is amended by adding the following after section 258:

258.1 (1) Subject to subsections 258(4) and (5), no person shall use a bodily substance taken under paragraph 254(2)(b), subsection 254(3), (3.2) or (3.3) or section 256 or with the consent of the person from whom it was taken, except for the purpose of an analysis that is referred to in that provision or for which the consent is given.

(2) No person shall use the results of physical coordination tests under paragraph 254(2)(a), of an evaluation under subsection 254(3.1) or of the analysis of a bodily substance taken under paragraph 254(2)(b), subsection 254(3), (3.2) or (3.3) or section 256 or with the consent of the person from whom it was taken, except

(a) in the course of an investigation of an offence under any of sections 220, 221, 236, 249 and 251 to 253 and subsections 255(2) and (3);

(b) in a proceeding for an offence under any of sections 220, 221, 236, 249 and 251 to 253 and subsections 255(2) and (3), under Part I of the Aeronautics Act, or under the Railway Safety Act in respect of a contravention of a rule or regulation made under that Act respecting the use of alcohol or a drug; or

(3) No person shall disclose or allow the disclosure of the results of physical coordination tests under paragraph 254(2)(a), of an evaluation under subsection 254(3.1) or of the analysis of a bodily substance taken under paragraph 254(2)(b), subsection 254(3), (3.2) or (3.3) or section 256 or with the consent of the person from whom it was taken, to a person other than the person to whom they relate,

(a) unless the results are made anonymous;

(b) except in the course of an investigation of an offence under any of sections 220, 221, 236, 249 and 251 to 253 and subsections 255(2) and (3);

(c) except in a proceeding for an offence under any of sections 220, 221, 236, 249 and 251 to 253 and subsections 255(2) and (3), under Part I of the Aeronautics Act, or under the Railway Safety Act in respect of a contravention of a rule or regulation made under that Act respecting the use of alcohol or a drug; or

(4) Every person who contravenes any of subsections (1) to (3) is guilty of an offence punishable on summary conviction.

CONSEQUENTIAL AMENDMENTS

Aeronautics Act

9. Section 8.6 of the Aeronautics Act is replaced by the following:

8.6 Evidence relating to the presence or concentration of alcohol or a drug in a sample of a bodily substance obtained under any provision of the Criminal Code is admissible in proceedings taken against a person under this Part, and the provisions of section 258 of the Criminal Code, except paragraph 258(1)(a), apply to those proceedings with any modifications that the circumstances require.

Customs Act

10. Subsection 163.5(2) of the Customs Act is replaced by the following:

(2) A designated officer who is at a customs office 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. If, by demand, they require a person to provide samples of blood or breath under subsection 254(3) of that Act, or to submit to an evaluation under subsection 254(3.1) of that Act, they may also require the person to accompany a peace officer referred to in paragraph (c) of the definition “peace officer” in section 2 of that Act, for that purpose.

Railway Safety Act

11. Subsection 41(7) of the Railway Safety Act is replaced by the following:

(7) Evidence relating to the presence or concentration of alcohol or a drug in a sample of a bodily substance obtained under any provision of the Criminal Code is admissible in proceedings taken against a person under this Act in respect of a contravention of a rule or regulation respecting the use of alcohol or a drug, and section 258 of the Criminal Code applies to those proceedings with any modifications that the circumstances require.

COMING INTO FORCE

12. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.