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2nd Session, 41st Parliament,
62 Elizabeth II, 2013
house of commons of canada
An Act to amend the Criminal Code (breath alcohol analysis)
Whereas alcohol-impaired driving often results in tragedies that each year devastate many Canadian families and communities, causing irreparable damage to victims and their loved ones;
Whereas random roadside breath testing has already proved effective in a number of countries, such as New Zealand, Ireland and Australia, saving up to 200 lives annually;
Whereas impaired driving is responsible for more deaths in Canada than any other criminal offence;
Whereas, in 2009, the Standing Committee on Justice and Human Rights unanimously recommended the implementation of random roadside testing;
And whereas the Government of Canada at the time acknowledged the importance of giving a priority response to the recommendations of this committee;
R.S., c. C-46
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
1. (1) Section 254 of the Criminal Code is amended by adding the following after subsection (2):
Testing — motor vehicle
(2.01) If a peace officer has in his or her possession an approved screening device, the peace officer may, by demand, require the person who is operating a motor vehicle or has the care or control of it, whether it was in motion or not, 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 that device and, if necessary, to accompany the peace officer for that purpose.
Testing — accident
(2.02) If a peace officer has reasonable grounds to suspect a person of having operated a motor vehicle involved in an accident resulting in death or bodily harm to another person, the peace officer may, by demand, require the suspected person to provide, as soon as practicable, 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.
Uncertainty as to operator
(2.03) For greater certainty, for the purposes of subsection (2.02), if the peace officer cannot identify with certainty the person who was operating the motor vehicle, the peace officer may make the demand under this subsection of any person that he or she has reasonable grounds to suspect was operating the vehicle.
Legal assistance — for greater certainty
(2.04) For greater certainty, the provision of the sample of breath required, by demand, by the peace officer pursuant to subsections (2.01) and (2.02) may not be delayed in order to exercise the right to legal assistance.
(2) Subsection 254(3.3) of the Act is replaced by the following:
Testing for presence of alcohol
(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 (2.01), (2.02) or (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.
2. Subsection 258(2) of the Act is replaced by the following:
Evidence of failure to give sample
(2) Unless a person is required to give a sample of a bodily substance under paragraph 254(2)(b) or subsection 254(2.01), (2.02), (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. Subsection 258.1(1) of the Act is replaced by the following:
Unauthorized use of bodily substance
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(2.01), (2.02), (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.
Published under authority of the Speaker of the House of Commons