Bill C-2

56-57 ELIZABETH II

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CHAPTER 6

An Act to amend the Criminal Code and to make consequential amendments to other Acts

[Assented to 28th February, 2008]

Whereas Canadians are entitled to live in a safe society;

Whereas violence involving firearms continues to threaten the safety of Canadians;

Whereas dangerous and high risk offenders pose a significant threat to the public;

Whereas driving under the influence of drugs or alcohol can result in serious bodily harm and death on Canada’s streets;

Whereas families should be able to raise their children without fear of sexual predators;

Whereas the Parliament of Canada is committed to enacting comprehensive laws to combat violent crime and to protect Canadians while respecting and promoting the values reflected in, and the rights and freedoms guaranteed by, the Canadian Charter of Rights and Freedoms;

And whereas those laws should ensure that violent offenders are kept in prison, should provide those responsible for law enforcement with effective tools to detect and investigate crime, and should better protect young persons from sexual predators;

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

SHORT TITLE

1. This Act may be cited as the Tackling Violent Crime Act.

CRIMINAL CODE

2. Section 84 of the Criminal Code is amended by adding the following after subsection (4):

(5) In determining, for the purpose of subsection 85(3), 95(2), 99(2), 100(2) or 103(2), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under section 85, 95, 96, 98, 98.1, 99, 100, 102 or 103 or subsection 117.01(1);

(b) an offence under section 244; or

(c) an offence under section 220, 236, 239, 272 or 273, subsection 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence.

However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.

(6) For the purposes of subsection (5), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.

3. (1) Paragraph 85(1)(a) of the Act is replaced by the following:

(a) while committing an indictable offence, other than an offence under section 220 (criminal negligence causing death), 236 (manslaughter), 239 (attempted murder), 244 (discharging firearm with intent), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), subsection 279(1) (kidnapping) or section 279.1 (hostage-taking), 344 (robbery) or 346 (extortion),

(2) Subsection 85(3) of the Act is amended by adding the word “and” at the end of paragraph (a) and by replacing paragraphs (b) and (c) with the following:

(b) in the case of a second or subsequent offence, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of three years.

4. Subsections 91(1) and (2) of the Act are replaced by the following:

91. (1) Subject to subsections (4) and (5), every person commits an offence who possesses a firearm without being the holder of

(a) a licence under which the person may possess it; and

(b) a registration certificate for the firearm.

(2) Subject to subsection (4), every person commits an offence who possesses a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition, without being the holder of a licence under which the person may possess it.

5. Subsections 92(1) and (2) of the Act are replaced by the following:

92. (1) Subject to subsections (4) and (5), every person commits an offence who possesses a firearm knowing that the person is not the holder of

(a) a licence under which the person may possess it; and

(b) a registration certificate for the firearm.

(2) Subject to subsection (4), every person commits an offence who possesses a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition knowing that the person is not the holder of a licence under which the person may possess it.

6. The portion of subsection 93(1) of the Act before paragraph (a) is replaced by the following:

93. (1) Subject to subsection (3), every person commits an offence who, being the holder of an authorization or a licence under which the person may possess a firearm, a prohibited weapon, a restricted weapon, a prohibited device or prohibited ammunition, possesses the firearm, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition at a place that is

7. The portion of subsection 94(1) of the Act before paragraph (a) is replaced by the following:

94. (1) Subject to subsections (3) to (5), every person commits an offence who is an occupant of a motor vehicle in which the person knows there is a firearm, a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition, unless

8. (1) The portion of subsection 95(1) of the Act before paragraph (a) is replaced by the following:

95. (1) Subject to subsection (3), every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, unless the person is the holder of

(2) Paragraph 95(2)(a) of the Act is replaced by the following:

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of

(i) in the case of a first offence, three years, and

(ii) in the case of a second or subsequent offence, five years; or

9. Section 98 of the Act is replaced by the following:

98. (1) Every person commits an offence who

(a) breaks and enters a place with intent to steal a firearm located in it;

(b) breaks and enters a place and steals a firearm located in it; or

(c) breaks out of a place after

(i) stealing a firearm located in it, or

(ii) entering the place with intent to steal a firearm located in it.

(2) In this section, “break” has the same meaning as in section 321, and “place” means any building or structure — or part of one — and any motor vehicle, vessel, aircraft, railway vehicle, container or trailer.

(3) For the purposes of this section,

(a) a person enters as soon as any part of his or her body or any part of an instrument that he or she uses is within any thing that is being entered; and

(b) a person is deemed to have broken and entered if he or she

(i) obtained entrance by a threat or an artifice or by collusion with a person within, or

(ii) entered without lawful justification or excuse by a permanent or temporary opening.

(4) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for life.

98.1 Every person who commits a robbery within the meaning of section 343 with intent to steal a firearm or in the course of which he or she steals a firearm commits an indictable offence and is liable to imprisonment for life.

10. Subsection 99(2) of the Act is replaced by the following:

(2) Every person who commits an offence under subsection (1) where the object in question is a firearm, a prohibited device, any ammunition or any prohibited ammunition is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of

(a) in the case of a first offence, three years; and

(b) in the case of a second or subsequent offence, five years.

(3) In any other case, a person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of one year.

11. Subsection 100(2) of the Act is replaced by the following:

(2) Every person who commits an offence under subsection (1) where the object in question is a firearm, a prohibited device, any ammunition or any prohibited ammunition is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of

(a) in the case of a first offence, three years; and

(b) in the case of a second or subsequent offence, five years.

(3) In any other case, a person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of one year.

12. Subsection 103(2) of the Act is replaced by the following:

(2) Every person who commits an offence under subsection (1) where the object in question is a firearm, a prohibited device or any prohibited ammunition is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of

(a) in the case of a first offence, three years; and

(b) in the case of a second or subsequent offence, five years.

(2.1) In any other case, a person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of one year.

13. (1) Subsections 150.1(1) and (2) of the Act are replaced by the following:

150.1 (1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under section 151 or 152 or subsection 153(1), 160(3) or 173(2) or is charged with an offence under section 271, 272 or 273 in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.

(2) When an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complain- ant who is 12 years of age or more but under the age of 14 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused

(a) is less than two years older than the complainant; and

(b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.

(2.1) When an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complain- ant who is 14 years of age or more but under the age of 16 years, it is a defence that the complain- ant consented to the activity that forms the subject-matter of the charge if

(a) the accused

(i) is less than five years older than the complainant; and

(ii) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant; or

(b) the accused is married to the complain- ant.

(2.2) When the accused referred to in subsection (2.1) is five or more years older than the complainant, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if, on the day on which this subsection comes into force,

(a) the accused is the common-law partner of the complainant, or has been cohabiting with the complainant in a conjugal relationship for a period of less than one year and they have had or are expecting to have a child as a result of the relationship; and

(b) the accused is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.

(2) Section 150.1 of the Act is amended by adding the following after subsection (5):

(6) An accused cannot raise a mistaken belief in the age of the complainant in order to invoke a defence under subsection (2) or (2.1) unless the accused took all reasonable steps to ascertain the age of the complainant.

14. Paragraphs 172.1(1)(b) and (c) of the Act are replaced by the following:

(b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 280 with respect to that person; or

(c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.

15. Paragraph (a) of the definition “offence” in section 183 of the Act is amended by adding the following after subparagraph (xiii):

(xiii.1) section 98 (breaking and entering to steal firearm),

(xiii.2) section 98.1 (robbery to steal firearm),

16. Section 239 of the Act is replaced by the following:

239. (1) Every person who attempts by any means to commit murder is guilty of an indictable offence and liable

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of

(i) in the case of a first offence, five years, and

(ii) in the case of a second or subsequent offence, seven years;

(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life.

(2) In determining, for the purpose of paragraph (1)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under this section;

(b) an offence under subsection 85(1) or (2) or section 244; or

(c) an offence under section 220, 236, 272 or 273, subsection 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence.

However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.

(3) For the purposes of subsection (2), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.

17. Section 244 of the Act is replaced by the following:

244. (1) Every person commits an offence who discharges a firearm at a person with intent to wound, maim or disfigure, to endanger the life of or to prevent the arrest or detention of any person — whether or not that person is the one at whom the firearm is discharged.

(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of

(i) in the case of a first offence, five years, and

(ii) in the case of a second or subsequent offence, seven years; and

(b) in any other case, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of four years.

(3) In determining, for the purpose of paragraph (2)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under this section;

(b) an offence under subsection 85(1) or (2); or

(c) an offence under section 220, 236, 239, 272 or 273, subsection 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence.

However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.

(4) For the purposes of subsection (3), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.

18. Section 253 of the Act 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.

19. (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 has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(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) 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.

(2.1) For greater certainty, a peace officer may make a video recording of a performance of the physical coordination tests referred to in paragraph (2)(a).

(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) if necessary, 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 motor 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) For greater certainty, a peace officer may make a video recording of an evaluation referred to in subsection (3.1).

(3.3) 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 instrument.

(3.4) 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 motor 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 (3.4) 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) Everyone 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.

20. 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.

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;

(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.

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

(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.

(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.

(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.

(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.

(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.

(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.

(4) 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;

22. 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.

23. 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 (3.4) 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.

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

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),

(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;

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

(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;

(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;

(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,

(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,

(9) Subsections 258(2) to (6) 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), (3.3) 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.

(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 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.

(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.

(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.

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

258.1 (1) Subject to subsections 258(4) and (5) and subsection (3), no person shall use a bodily substance taken under paragraph 254(2)(b), subsection 254(3), (3.3) or (3.4) or section 256 or with the consent of the person from whom it was taken after a request by a peace officer or medical samples that are provided by consent and subsequently seized under a warrant, except for the purpose of an analysis that is referred to in that provision or for which the consent is given.

(2) Subject to subsections (3) and (4), no person shall use, disclose or allow the disclosure of the results of physical coordination tests under paragraph 254(2)(a), the results of an evaluation under subsection 254(3.1), the results of the analysis of a bodily substance taken under paragraph 254(2)(b), subsection 254(3), (3.3) or (3.4) or section 256 or with the consent of the person from whom it was taken after a request by a peace officer, or the results of the analysis of medical samples that are provided by consent and subsequently seized under a warrant, except

(a) in the course of an investigation of, or in a proceeding for, an offence under any of sections 220, 221, 236 and 249 to 255, an offence under Part I of the Aeronautics Act, or an offence 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

(b) for the purpose of the administration or enforcement of the law of a province.

(3) Subsections (1) and (2) do not apply to persons who for medical purposes use samples or use or disclose the results of tests, taken for medical purposes, that are subsequently seized under a warrant.

(4) The results of physical coordination tests, an evaluation or an analysis referred to in subsection (2) may be disclosed to the person to whom they relate, and may be disclosed to any other person if the results are made anonymous and the disclosure is made for statistical or other research purposes.

(5) Every person who contravenes subsection (1) or (2) is guilty of an offence punishable on summary conviction.

26. (1) Subsection 259(1) of the Act is replaced by the following:

259. (1) When an offender is convicted of an offence committed under section 253 or 254 or this section or discharged under section 730 of an offence committed under section 253 and, at the time the offence was committed or, in the case of an offence committed under section 254, within the three hours preceding that time, was operating or had the care or control of a motor vehicle, vessel or aircraft or of railway equipment or was assisting in the operation of an aircraft or of railway equipment, the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place, or from operating a vessel or an aircraft or railway equipment, as the case may be,

(a) for a first offence, during a period of not more than three years plus any period to which the offender is sentenced to imprisonment, and not less than one year;

(b) for a second offence, during a period of not more than five years plus any period to which the offender is sentenced to imprisonment, and not less than two years; and

(c) for each subsequent offence, during a period of not less than three years plus any period to which the offender is sentenced to imprisonment.

(2) The portion of subsection 259(2) of the Act before paragraph (a) is replaced by the following:

(2) If an offender is convicted or discharged under section 730 of an offence under section 220, 221, 236, 249, 249.1, 250, 251 or 252 or any of subsections 255(2) to (3.2) committed by means of a motor vehicle, a vessel, an aircraft or railway equipment, the court that sentences the offender may, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place, or from operating a vessel, an aircraft or railway equipment, as the case may be,

27. Section 261 of the Act is replaced by the following:

261. (1) Subject to subsection (1.1), if an appeal is taken against a conviction or discharge under section 730 for an offence committed under any of sections 220, 221, 236, 249 to 255 and 259, a judge of the court being appealed to may direct that any prohibition order under section 259 arising out of the conviction or discharge shall, on any conditions that the judge or court imposes, be stayed pending the final disposition of the appeal or until otherwise ordered by that court.

(1.1) In the case of an appeal to the Supreme Court of Canada, the direction referred to in subsection (1) may be made only by a judge of the court being appealed from and not by a judge of the Supreme Court of Canada.

(2) If conditions are imposed under a direction made under subsection (1) or (1.1) that a prohibition order be stayed, the direction shall not operate to decrease the period of prohibition provided in the order.

28. (1) Paragraph 272(2)(a) of the Act is replaced by the following:

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of

(i) in the case of a first offence, five years, and

(ii) in the case of a second or subsequent offence, seven years;

(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of four years; and

(2) Section 272 of the Act is amended by adding the following after subsection (2):

(3) In determining, for the purpose of paragraph (2)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under this section;

(b) an offence under subsection 85(1) or (2) or section 244; or

(c) an offence under section 220, 236, 239 or 273, subsection 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence.

However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.

(4) For the purposes of subsection (3), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.

29. (1) Paragraph 273(2)(a) of the Act is replaced by the following:

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of

(i) in the case of a first offence, five years, and

(ii) in the case of a second or subsequent offence, seven years;

(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(2) Section 273 of the Act is amended by adding the following after subsection (2):

(3) In determining, for the purpose of paragraph (2)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under this section;

(b) an offence under subsection 85(1) or (2) or section 244; or

(c) an offence under section 220, 236, 239 or 272, subsection 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence.

However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.

(4) For the purposes of subsection (3), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.

30. (1) Paragraph 279(1.1)(a) of the Act is replaced by the following:

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of

(i) in the case of a first offence, five years, and

(ii) in the case of a second or subsequent offence, seven years;

(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(2) Section 279 of the Act is amended by adding the following after subsection (1.1):

(1.2) In determining, for the purpose of paragraph (1.1)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under subsection (1);

(b) an offence under subsection 85(1) or (2) or section 244; or

(c) an offence under section 220, 236, 239, 272, 273, 279.1, 344 or 346 if a firearm was used in the commission of the offence.

However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.

(1.3) For the purposes of subsection (1.2), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.

31. (1) Subsection 279.1(1) of the Act is replaced by the following:

279.1 (1) Everyone takes a person hostage who — with intent to induce any person, other than the hostage, or any group of persons or any state or international or intergovernmental organization to commit or cause to be committed any act or omission as a condition, whether express or implied, of the release of the hostage —

(a) confines, imprisons, forcibly seizes or detains that person; and

(b) in any manner utters, conveys or causes any person to receive a threat that the death of, or bodily harm to, the hostage will be caused or that the confinement, imprisonment or detention of the hostage will be continued.

(2) Paragraph 279.1(2)(a) of the Act is replaced by the following:

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of

(i) in the case of a first offence, five years, and

(ii) in the case of a second or subsequent offence, seven years;

(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(3) Section 279.1 of the Act is amended by adding the following after subsection (2):

(2.1) In determining, for the purpose of paragraph (2)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under this section;

(b) an offence under subsection 85(1) or (2) or section 244; or

(c) an offence under section 220, 236, 239, 272 or 273, subsection 279(1) or section 344 or 346 if a firearm was used in the commission of the offence.

However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.

(2.2) For the purposes of subsection (2.1), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.

32. (1) Paragraph 344(a) of the Act is replaced by the following:

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of

(i) in the case of a first offence, five years, and

(ii) in the case of a second or subsequent offence, seven years;

(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(2) Section 344 of the Act is renumbered as subsection 344(1) and is amended by adding the following:

(2) In determining, for the purpose of paragraph (1)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under this section;

(b) an offence under subsection 85(1) or (2) or section 244; or

(c) an offence under section 220, 236, 239, 272 or 273, subsection 279(1) or section 279.1 or 346 if a firearm was used in the commission of the offence.

However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.

(3) For the purposes of subsection (2), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.

33. (1) Paragraph 346(1.1)(a) of the Act is replaced by the following:

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of

(i) in the case of a first offence, five years, and

(ii) in the case of a second or subsequent offence, seven years;

(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(2) Section 346 of the Act is amended by adding the following after subsection (1.1):

(1.2) In determining, for the purpose of paragraph (1.1)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under this section;

(b) an offence under subsection 85(1) or (2) or section 244; or

(c) an offence under section 220, 236, 239, 272 or 273, subsection 279(1) or section 279.1 or 344 if a firearm was used in the commission of the offence.

However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.

(1.3) For the purposes of subsection (1.2), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.

34. The portion of section 348.1 of the Act before paragraph (a) is replaced by the following:

348.1 If a person is convicted of an offence under section 98 or 98.1, subsection 279(2) or section 343, 346 or 348 in relation to a dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence,

35. Subparagraph (a)(ix) of the definition “primary designated offence” in section 487.04 of the Act is replaced by the following:

(ix) section 244 (discharging firearm with intent),

36. Subparagraph (a)(xviii) of the definition “designated offence” in subsection 490.011(1) of the Act is replaced by the following:

(xviii) paragraph 273(2)(a) (aggravated sexual assault — use of a restricted firearm or prohibited firearm or any firearm in connection with criminal organization),

(xviii.1) paragraph 273(2)(a.1) (aggravated sexual assault — use of a firearm),

37. (1) The portion of subsection 515(6) of the Act before paragraph (a) is replaced by the following:

(6) Unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused’s detention in custody is not justified, the justice shall order, despite any provision of this section, that the accused be detained in custody until the accused is dealt with according to law, if the accused is charged

(2) Paragraph 515(6)(a) of the Act is amended by striking out the word “or’’ at the end of subparagraph (iv) and by adding the following after subparagraph (v):

(vi) that is an offence under section 99, 100 or 103,

(vii) that is an offence under section 244, or that is an offence under section 239, 272 or 273, subsection 279(1) or section 279.1, 344 or 346 that is alleged to have been committed with a firearm, or

(viii) that is alleged to involve, or whose subject-matter is alleged to be, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or prohibited ammunition or an explosive substance, and that is alleged to have been committed while the accused was under a prohibition order within the meaning of subsection 84(1);

(3) The portion of subsection 515(6) of the Act after paragraph (d) is repealed.

(4) Section 515 of the Act is amended by adding the following after subsection (6):

(6.1) If the justice orders that an accused to whom subsection (6) applies be released, the justice shall include in the record a statement of the justice’s reasons for making the order.

(5) Paragraph 515(10)(c) of the Act is replaced by the following:

(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

(i) the apparent strength of the prosecution’s case,

(ii) the gravity of the offence,

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

38. Subsection 662(6) of the Act is replaced by the following:

(6) Where a count charges an offence under paragraph 98(1)(b) or 348(1)(b) and the evidence does not prove that offence but does prove an offence under, respectively, paragraph 98(1)(a) or 348(1)(a), the accused may be convicted of an offence under that latter paragraph.

39. Subsection 743.1(3.1) of the Act is replaced by the following:

(3.1) Despite subsection (3), an offender who is subject to long-term supervision under Part XXIV and is sentenced for another offence during the period of the supervision shall be sentenced to imprisonment in a penitentiary.

40. Section 752 of the Act is amended by adding the following in alphabetical order:

“designated offence” means

(a) a primary designated offence,

(b) an offence under any of the following provisions:

(i) paragraph 81(1)(a) (using explosives),

(ii) paragraph 81(1)(b) (using explosives),

(iii) section 85 (using firearm or imitation firearm in commission of offence),

(iv) section 87 (pointing firearm),

(v) section 153.1 (sexual exploitation of person with disability),

(vi) section 163.1 (child pornography),

(vii) section 170 (parent or guardian procuring sexual activity),

(viii) section 171 (householder permitting sexual activity by or in presence of child),

(ix) section 172.1 (luring child),

(x) paragraph 212(1)(i) (stupefying or overpowering for purpose of sexual intercourse),

(xi) subsection 212(2.1) (aggravated offence in relation to living on avails of prostitution of person under 18),

(xii) subsection 212(4) (prostitution of person under 18),

(xiii) section 245 (administering noxious thing),

(xiv) section 266 (assault),

(xv) section 269 (unlawfully causing bodily harm),

(xvi) section 269.1 (torture),

(xvii) paragraph 270(1)(a) (assaulting peace officer),

(xviii) section 273.3 (removal of child from Canada),

(xix) subsection 279(2) (forcible confinement),

(xx) section 279.01 (trafficking in persons),

(xxi) section 279.1 (hostage taking),

(xxii) section 280 (abduction of person under age of 16),

(xxiii) section 281 (abduction of person under age of 14),

(xxiv) section 344 (robbery), and

(xxv) section 348 (breaking and entering with intent, committing offence or breaking out),

(c) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 1, 1988:

(i) subsection 146(2) (sexual intercourse with female between ages of 14 and 16),

(ii) section 148 (sexual intercourse with feeble-minded),

(iii) section 166 (parent or guardian procuring defilement), and

(iv) section 167 (householder permitting defilement), or

(d) an attempt or conspiracy to commit an offence referred to in paragraph (b) or (c);

“long-term supervision” means long-term supervision ordered under subsection 753(4), 753.01(5) or (6) or 753.1(3) or subparagraph 759(3)(a)(i);

“primary designated offence” means

(a) an offence under any of the following provisions:

(i) section 151 (sexual interference),

(ii) section 152 (invitation to sexual touching),

(iii) section 153 (sexual exploitation),

(iv) section 155 (incest),

(v) section 239 (attempt to commit murder),

(vi) section 244 (discharging firearm with intent),

(vii) section 267 (assault with weapon or causing bodily harm),

(viii) section 268 (aggravated assault),

(ix) section 271 (sexual assault),

(x) section 272 (sexual assault with weapon, threats to third party or causing bodily harm),

(xi) section 273 (aggravated sexual assault), and

(xii) subsection 279(1) (kidnapping),

(b) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 4, 1983:

(i) section 144 (rape),

(ii) section 145 (attempt to commit rape),

(iii) section 149 (indecent assault on female),

(iv) section 156 (indecent assault on male),

(v) subsection 245(2) (assault causing bodily harm), and

(vi) subsection 246(1) (assault with intent) if the intent is to commit an offence referred to in any of subparagraphs (i) to (v) of this paragraph,

(c) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as enacted by section 19 of An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, chapter 125 of the Statutes of Canada, 1980-81-82-83:

(i) section 246.1 (sexual assault),

(ii) section 246.2 (sexual assault with weapon, threats to third party or causing bodily harm), and

(iii) section 246.3 (aggravated sexual assault),

(d) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 1, 1988:

(i) subsection 146(1) (sexual intercourse with female under age of 14), and

(ii) paragraph 153(1)(a) (sexual intercourse with step-daughter), or

(e) an attempt or conspiracy to commit an offence referred to in any of paragraphs (a) to (d);

41. Section 752.1 of the Act is replaced by the following:

752.01 If the prosecutor is of the opinion that an offence for which an offender is convicted is a serious personal injury offence that is a designated offence and that the offender was convicted previously at least twice of a designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the prosecutor shall advise the court, as soon as feasible after the finding of guilt and in any event before sentence is imposed, whether the prosecutor intends to make an application under subsection 752.1(1).

752.1 (1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1.

(2) The person to whom the offender is remanded shall file a report of the assessment with the court not later than 30 days after the end of the assessment period and make copies of it available to the prosecutor and counsel for the offender.

(3) On application by the prosecutor, the court may extend the period within which the report must be filed by a maximum of 30 days if the court is satisfied that there are reasonable grounds to do so.

42. (1) The portion of subsection 753(1) of the Act before paragraph (a) is replaced by the following:

753. (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied

(2) Section 753 of the Act is amended by adding the following after subsection (1):

(1.1) If the court is satisfied that the offence for which the offender is convicted is a primary designated offence for which it would be appropriate to impose a sentence of imprisonment of two years or more and that the offender was convicted previously at least twice of a primary designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the conditions in paragraph (1)(a) or (b), as the case may be, are presumed to have been met unless the contrary is proved on a balance of probabilities.

(3) Paragraphs 753(2)(a) and (b) of the Act are replaced by the following:

(a) before the imposition of sentence, the prosecutor gives notice to the offender of a possible intention to make an application under section 752.1 and an application under subsection (1) not later than six months after that imposition; and

(b) at the time of the application under subsection (1) that is not later than six months after the imposition of sentence, it is shown that relevant evidence that was not reasonably available to the prosecutor at the time of the imposition of sentence became available in the interim.

(4) Subsections 753(4) and (4.1) of the Act are replaced by the following:

(4) If the court finds an offender to be a dangerous offender, it shall

(a) impose a sentence of detention in a penitentiary for an indeterminate period;

(b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or

(c) impose a sentence for the offence for which the offender has been convicted.

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

(4.2) If the application is made after the offender begins to serve the sentence in a case to which paragraphs (2)(a) and (b) apply, a sentence imposed under paragraph (4)(a), or a sentence imposed and an order made under paragraph 4(b), replaces the sentence that was imposed for the offence for which the offender was convicted.

(5) Subsection 753(6) of the Act is repealed.

43. The Act is amended by adding the following after section 753:

753.01 (1) If an offender who is found to be a dangerous offender is later convicted of a serious personal injury offence or an offence under subsection 753.3(1), on application by the prosecutor, the court shall, by order in writing, before sentence is imposed, remand the offend- er, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under subsection (4).

(2) The person to whom the offender is remanded shall file a report of the assessment with the court not later than 30 days after the end of the assessment period and make copies of it available to the prosecutor and counsel for the offender.

(3) On application by the prosecutor, the court may extend the period within which the report must be filed by a maximum of 30 days if the court is satisfied that there are reasonable grounds to do so.

(4) After the report is filed, the prosecutor may apply for a sentence of detention in a penitentiary for an indeterminate period, or for an order that the offender be subject to a new period of long-term supervision in addition to any other sentence that may be imposed for the offence.

(5) If the application is for a sentence of detention in a penitentiary for an indeterminate period, the court shall impose that sentence unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a sentence for the offence for which the offender has been convicted — with or without a new period of long-term supervision — will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

(6) If the application is for a new period of long-term supervision, the court shall order that the offender be subject to a new period of long-term supervision in addition to a sentence for the offence for which they have been convicted unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that the sentence alone will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

753.02 Any evidence given during the hearing of an application made under subsection 753(1) by a victim of an offence for which the offender was convicted is deemed also to have been given during any hearing held with respect to the offender under paragraph 753(5)(a) or subsection 753.01(5) or (6).

44. (1) Subsection 753.1(3) of the Act is replaced by the following:

(3) If the court finds an offender to be a long-term offender, it shall

(a) impose a sentence for the offence for which the offender has been convicted, which must be a minimum punishment of imprisonment for a term of two years; and

(b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years.

(2) Subsections 753.1(4) and (5) are repealed.

45. (1) The portion of subsection 753.2(1) of the Act before paragraph (a) is replaced by the following:

753.2 (1) Subject to subsection (2), an offender who is subject to long-term supervision shall be supervised in the community in accordance with the Corrections and Conditional Release Act when the offender has finished serving

(2) Subsection 753.2(2) of the Act is replaced by the following:

(2) A sentence imposed on an offender referred to in subsection (1), other than a sentence that requires imprisonment, is to be served concurrently with the long-term supervision.

(3) Subsection 753.2(3) of the French version of the Act is replaced by the following:

46. Subsection 753.3(1) of the Act is replaced by the following:

753.3 (1) An offender who, without reasonable excuse, fails or refuses to comply with long-term supervision is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years.

47. Subsection 753.4(1) of the Act is replaced by the following:

753.4 (1) If an offender who is subject to long-term supervision commits one or more offences under this or any other Act and a court imposes a sentence of imprisonment for the offence or offences, the long-term supervision is interrupted until the offender has finished serving all the sentences, unless the court orders its termination.

48. (1) The portion of subsection 754(1) of the Act before paragraph (a) is replaced by the following:

754. (1) With the exception of an application for remand for assessment, the court may not hear an application made under this Part unless

(2) Paragraph 754(1)(b) of the French version of the Act is replaced by the following:

49. The Act is amended by adding the following after section 754:

755. (1) The court shall not order that an offender be subject to long-term supervision if they have been sentenced to life imprisonment.

(2) The periods of long-term supervision to which an offender is subject at any particular time must not total more than 10 years.

50. Section 757 of the Act is replaced by the following:

757. Without prejudice to the right of the offender to tender evidence as to their character and repute, if the court thinks fit, evidence of character and repute may be admitted

(a) on the question of whether the offender is or is not a dangerous offender or a long-term offender; and

(b) in connection with a sentence to be imposed or an order to be made under this Part.

51. Subsections 759(1) to (5) of the Act are replaced by the following:

759. (1) An offender who is found to be a dangerous offender or a long-term offender may appeal to the court of appeal from a decision made under this Part on any ground of law or fact or mixed law and fact.

(2) The Attorney General may appeal to the court of appeal from a decision made under this Part on any ground of law.

(3) The court of appeal may

(a) allow the appeal and

(i) find that an offender is or is not a dangerous offender or a long-term offender or impose a sentence that may be imposed or an order that may be made by the trial court under this Part, or

(ii) order a new hearing, with any directions that the court considers appropriate; or

(b) dismiss the appeal.

(4) A decision of the court of appeal has the same force and effect as if it were a decision of the trial court.

52. Subsection 810.1(3) of the Act is replaced by the following:

(3) If the provincial court judge before whom the parties appear is satisfied by the evidence adduced that the informant has reasonable grounds for the fear, the judge may order that the defendant enter into a recognizance to keep the peace and be of good behaviour for a period that does not exceed 12 months.

(3.01) However, if the provincial court judge is also satisfied that the defendant was convicted previously of a sexual offence in respect of a person who is under the age of 14 years, the judge may order that the defendant enter into the recognizance for a period that does not exceed two years.

(3.02) The provincial court judge may add any reasonable conditions to the recognizance that the judge considers desirable to secure the good conduct of the defendant, including conditions that

(a) prohibit the defendant from engaging in any activity that involves contact with persons under the age of 14 years, including using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under that age;

(b) prohibit the defendant from attending a public park or public swimming area where persons under the age of 14 years are present or can reasonably be expected to be present, or a daycare centre, schoolground or playground;

(c) require the defendant to participate in a treatment program;

(d) require the defendant to wear an elec- tronic monitoring device, if the Attorney General makes the request;

(e) require the defendant to remain within a specified geographic area unless written permission to leave that area is obtained from the provincial court judge;

(f) require the defendant to return to and remain at his or her place of residence at specified times; or

(g) require the defendant to abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance.

(3.03) The provincial court judge shall consider whether it is desirable, in the interests of the defendant’s safety or that of any other person, to prohibit the defendant from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all of those things. If the judge decides that it is desirable to do so, the judge shall add that condition to the recognizance and specify the period during which the condition applies.

(3.04) If the provincial court judge adds a condition described in subsection (3.03) to a recognizance, the judge shall specify in the recognizance how the things referred to in that subsection that are in the defendant’s possession should be surrendered, disposed of, detained, stored or dealt with and how the authorizations, licences and registration certificates that are held by the defendant should be surrendered.

(3.05) The provincial court judge shall consider whether it is desirable to require the defendant to report to the correctional authority of a province or to an appropriate police authority. If the judge decides that it is desirable to do so, the judge shall add that condition to the recognizance.

53. (1) Subsection 810.2(3) of the Act is replaced by the following:

(3) If the provincial court judge before whom the parties appear is satisfied by the evidence adduced that the informant has reasonable grounds for the fear, the judge may order that the defendant enter into a recognizance to keep the peace and be of good behaviour for a period that does not exceed 12 months.

(3.1) However, if the provincial court judge is also satisfied that the defendant was convicted previously of an offence referred to in subsection (1), the judge may order that the defendant enter into the recognizance for a period that does not exceed two years.

(2) Subsections 810.2(5) to (6) of the Act are replaced by the following:

(4.1) The provincial court judge may add any reasonable conditions to the recognizance that the judge considers desirable to secure the good conduct of the defendant, including conditions that require the defendant

(a) to participate in a treatment program;

(b) to wear an electronic monitoring device, if the Attorney General makes the request;

(c) to remain within a specified geographic area unless written permission to leave that area is obtained from the provincial court judge;

(d) to return to and remain at his or her place of residence at specified times; or

(e) to abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance.

(5) The provincial court judge shall consider whether it is desirable, in the interests of the defendant’s safety or that of any other person, to prohibit the defendant from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all of those things. If the judge decides that it is desirable to do so, the judge shall add that condition to the recognizance and specify the period during which the condition applies.

(5.1) If the provincial court judge adds a condition described in subsection (5) to a recognizance, the judge shall specify in the recognizance how the things referred to in that subsection that are in the defendant’s possession should be surrendered, disposed of, detained, stored or dealt with and how the authorizations, licences and registration certificates that are held by the defendant should be surrendered.

(5.2) If the provincial court judge does not add a condition described in subsection (5) to a recognizance, the judge shall include in the record a statement of the reasons for not adding the condition.

(6) The provincial court judge shall consider whether it is desirable to require the defendant to report to the correctional authority of a province or to an appropriate police authority. If the judge decides that it is desirable to do so, the judge shall add that condition to the recognizance.

54. The Act is amended by replacing the words “fourteen years” with the words “16 years” wherever they occur in the following provisions:

(a) subsection 150.1(4);

(b) sections 151 and 152;

(c) subsection 153(2);

(d) subsection 160(3);

(e) subsection 161(1);

(f) paragraphs 170(a) and (b);

(g) paragraphs 171(a) and (b);

(h) subsection 173(2);

(i) paragraphs 273.3(1)(a) and (b); and

(j) subsection 810.1(1) and paragraphs 810.1(3)(a) and (b).

CONSEQUENTIAL AMENDMENTS

Aeronautics Act

55. 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.

Corrections and Conditional Release Act

56. The definition “long-term supervision” in subsection 2(1) of the Corrections and Conditional Release Act is replaced by the following:

“long-term supervision” means long-term supervision ordered under subsection 753(4), 753.01(5) or (6) or 753.1(3) or subparagraph 759(3)(a)(i) of the Criminal Code;

57. Paragraph 1(r) of Schedule I to the Act is replaced by the following:

(r) section 244 (discharging firearm with intent);

Criminal Records Act

58. (1) Paragraphs 1(b) to (d) of the schedule to the Criminal Records Act are replaced by the following:

(b) section 151 (sexual interference with a person under 16);

(c) section 152 (invitation to a person under 16 to sexual touching);

(d) section 153 (sexual exploitation of a person 16 or more but under 18);

(2) Paragraph 1(h) of the schedule to the Act is replaced by the following:

(h) subsection 160(3) (bestiality in the presence of a person under 16 or inciting a person under 16 to commit bestiality);

(3) Paragraphs 1(x) and (y) of the schedule to the Act are replaced by the following:

(x) paragraph 273.3(1)(a) (removal of child under 16 from Canada for purposes of listed offences);

(y) paragraph 273.3(1)(b) (removal of child 16 or more but under 18 from Canada for purpose of listed offence);

Customs Act

59. 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

60. 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.

COORDINATING AMENDMENTS

61. On the first day on which both sections 9 and 40 of this Act are in force, paragraph (b) of the definition “designated offence” in section 752 of the Criminal Code is amended by adding the following after subparagraph (iv):

(iv.1) section 98 (breaking and entering to steal firearm),

(iv.2) section 98.1 (robbery to steal firearm),

62. (1) If section 52 of this Act comes into force before section 54 of this Act, then paragraph 54(j) of this Act is replaced by the following:

(j) subsections 810.1(1) and (3.01) and paragraphs 810.1(3.02)(a) and (b).

(2) If section 54 of this Act comes into force before section 52 of this Act, then

(a) subsection 810.1(3.01) of the Criminal Code, as enacted by section 52 of this Act, is replaced by the following:

(3.01) However, if the provincial court judge is also satisfied that the defendant was convicted previously of a sexual offence in respect of a person who is under the age of 16 years, the judge may order that the defendant enter into the recognizance for a period that does not exceed two years.

(b) paragraphs 810.1(3.02)(a) and (b) of the Criminal Code, as enacted by section 52 of this Act, are replaced by the following:

(a) prohibit the defendant from engaging in any activity that involves contact with persons under the age of 16 years, including using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under that age;

(b) prohibit the defendant from attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground or playground;

(3) If section 52 of this Act comes into force on the same day as section 54 of this Act, then that section 52 is deemed to have come into force before that section 54 and subsection (1) applies as a consequence.

63. (1) In this section, “other Act” means An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act, chapter 25 of the Statutes of Canada, 2005.

(2) If subsection 1(5) of the other Act comes into force before section 35 of this Act, then that section 35 is replaced by the following:

35. Subparagraph (a)(v) of the definition “primary designated offence” in section 487.04 of the Act is replaced by the following:

(v) section 244 (discharging firearm with intent),

(3) If section 35 of this Act comes into force before subsection 1(5) of the other Act, then subparagraph (a.1)(v) of the definition “primary designated offence” in section 487.04 of the Criminal Code, as enacted by that subsection 1(5), is replaced by the following:

(v) section 244 (discharging firearm with intent),

(4) If subsection 1(5) of the other Act comes into force on the same day as section 35 of this Act, then that subsection 1(5) is deemed to have come into force before that section 35 and subsection (2) applies as a consequence.

COMING INTO FORCE

64. The provisions of this Act, other than sections 61 to 63, come into force on a day or days to be fixed by order of the Governor in Council.