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

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

Marginal note: Punishment — firearm

• (a) in the case of a first offence, three years; and
• (b) in the case of a second or subsequent offence, five years.

Marginal note: Punishment — other cases

Marginal note: R.S., c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 2(1)

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

Marginal note: Consent no defence

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.

Marginal note: Exception — complainant aged 12 or 13

• (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.

Marginal note: Exception — complainant aged 14 or 15

• (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

  Marginal note: Exception for transitional purposes

  • (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.

  Marginal note: Mistake of age

  Marginal note: 2002, c. 13, s. 8

  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 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),

  Marginal note: 1995, c. 39, s. 143

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

  Marginal note: Attempt to commit murder

  • 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;

      Marginal note: Subsequent offences

      • (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.

      Marginal note: Sequence of convictions only

      Marginal note: 1995, c. 39, s. 144

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

      Marginal note: Discharging firearm with intent

      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.

      Marginal note: Punishment

      • (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

        Marginal note: Subsequent offences

        • (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.

        Marginal note: Sequence of convictions only

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

        Marginal note: For greater certainty

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

        • 19. (1) The portion of subsection 254(1) of the Act before the definition is replaced by the following:

        Marginal note: Definitions

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

        « agent évaluateur » means a peace officer who is qualified under the regulations to conduct evaluations under subsection (3.1);

        Marginal note: R.S., c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14 and 18 (Sch. I, item 6)(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2

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

        Marginal note: Testing for presence of alcohol or a drug

        • (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.

        Marginal note: Video recording

        Marginal note: Samples of breath or blood

        • (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

          Marginal note: Evaluation

          Marginal note: Video recording

          Marginal note: Testing for presence of alcohol

          Marginal note: Samples of bodily substances

          • (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.