Backgrounder: Tackling Violent Crime Act

The Tackling Violent Crime Act better protects Canadians from those who commit serious and violent crimes. To give the public, police, prosecutors, defence counsel and judges time to familiarize themselves with these important changes to Canada’s criminal law, the reforms come into force in two stages.

On July 2, 2008, two sections of the Act will come into force, providing for:

• New ways to detect and investigate drug-impaired driving and stronger penalties for impaired driving.
• More effective sentencing and monitoring to prevent dangerous, high-risk offenders from offending again.

Three sections of the Tackling Violent Crime Act came into force on May 1, 2008, strengthening the Criminal Code in the following areas:

• Tougher mandatory prison sentences for serious gun crimes;
• Bail reverse onus provisions so that those accused of serious gun crimes will have to show why they shouldn’t be kept in jail while awaiting trial; and
• Better protection for young persons from adult sexual predators. 

PROVISIONS TO COME INTO FORCE ON JULY 2, 2008

Fighting impaired driving

The Tackling Violent Crime Act provides the police with better tools to detect and investigate drug- and alcohol-impaired driving and enhance penalties for impaired driving, specifically by:

• Authorizing peace officers to conduct roadside sobriety tests, and authorizing peace officers (who are trained as Evaluating Officers) to: (a) test whether a driver is impaired by a drug, or a combination of alcohol and a drug, and (b) to take samples of bodily fluids to confirm the presence of the impairing drug;
• Making it an offence to refuse or fail to comply with police demands for physical sobriety tests or bodily fluid samples. The offence would be punishable by the same Criminal Code penalty as refusing a demand for a breath test for alcohol — a minimum $1,000 fine for a first offence, with a maximum penalty of 18 months imprisonment, or if the prosecutor proceeds by indictment, five years;
• Making it an offence to cause an accident resulting in death or bodily harm while over 80, or to refuse a demand for tests or samples when the operator knows or ought to know they have caused an accident resulting in death or bodily harm, which carries a maximum penalty of life imprisonment;
• Allowing only scientifically valid defences to be used as evidence to avoid conviction for driving with a blood-alcohol concentration over 80, thereby reducing the number of individuals who can avoid conviction on technicalities (e.g., the “two-beer defence”); and
• Increasing the penalties for impaired driving:
  • 1st offence, minimum penalty increased from $600 to $1000.
  • 2nd offence, minimum penalty increased from 14 days in jail to 30 days.
  • 3rd offence, minimum penalty increased from 90 days in jail to 120 days.

Tougher sentencing and management of sexual and violent offenders

The Tackling Violent Crime Act will provide for more effective sentencing and monitoring to prevent dangerous, high-risk offenders from offending again. It will make it easier for Crown prosecutors to obtain Dangerous Offender designations (one of the most severe sentences available in Canadian law) by:

• Creating a presumption of dangerousness, so that when an individual has been convicted three or more times of specific violent/sexual crimes, it would be up to that person to convince the court why he or she should not be designated a Dangerous Offender.
• Fixing problems with the current Dangerous Offender provisions that allow some individuals to receive a less severe sentence (a Long-Term Offender sentence) instead of a Dangerous Offender indeterminate sentence. The Act will ensure that these individuals, upon breach of their lesser sentence, would be subject to a hearing. This hearing would result in an indeterminate Dangerous Offender sentence unless the court was satisfied that the threat of the individual committing future violent offences could be managed with a less severe sentence.
• Requiring the Crown to declare in open court whether or not it had considered an application for Dangerous Offender status whenever any person is convicted of a third designated serious violent/sexual offence, thereby increasing the possibility that the prosecution will pursue a Dangerous Offender application when there are adequate grounds.
• Doubling the duration of peace bonds and clarifying the range of conditions that may be imposed on those who are being released from jail.

PROVISIONS THAT CAME INTO FORCE ON MAY 1, 2008

Tougher laws to address gun crimes

The Tackling Violent Crime Act provides for tougher mandatory prison sentences for serious gun crimes as well as bail reverse onus provisions so that those accused of serious gun crimes will have to show why they shouldn’t be kept in jail while awaiting trial.

Higher mandatory prison sentences

• Five years for a first offence and seven years on a second or subsequent offence for eight specific offences (attempted murder, discharging a firearm with intent, sexual assault with a weapon, aggravated sexual assault, kidnapping, hostage taking, robbery and extortion) involving the actual use of firearms, when the offence is gang-related, or if a restricted or prohibited firearm such as a handgun is used.
• Three years on a first offence and five years on a second or subsequent offence for other serious firearm-related offences (firearm trafficking, possession for the purpose of firearm trafficking, firearm smuggling and illegal possession of a restricted or prohibited firearm with ammunition).

New offences

• An indictable offence of breaking and entering to steal a firearm.
• An indictable offence of robbery to steal a firearm.

Bail Reforms

A “reverse onus”, (i.e. requiring the accused to show why he or she should not be kept in jail while awaiting trial) applies to those charged with:

• Using a firearm to commit certain serious offences including attempted murder, discharging a firearm with intent, sexual assault with a weapon, aggravated sexual assault, kidnapping, hostage-taking, robbery and extortion;
• An indictable firearms-related offence where the accused is under a firearms prohibition order; or
• Firearms trafficking, possession for the purpose of weapons trafficking or firearm smuggling.

Additional factors

The court must take these into account in determining whether an accused should be kept in jail pending trial:

• Whether a firearm was used in the commission of the offence; and
• Whether the accused faces a mandatory minimum punishment of imprisonment of three years or more for a firearm offence. 

Further protecting young persons from sexual exploitation

The Tackling Violent Crime Act better protects youth from adult sexual predators by:

• Raising the age at which youths can consent to non-exploitative sexual activity   from 14 to 16 years of age;
• Maintaining the existing age of protection of 18 years for exploitative sexual activity (i.e. sexual activity involving prostitution, pornography, or a relationship of trust, authority or dependency or that is otherwise exploitative); and
• Including a close-in-age exception which permits 14- and 15-year old youths to engage in consensual, non-exploitative sexual activity with a partner who is less than five years older. Another exception will be available for marriages and for pre-existing common-law relationships.

-30-

Department of Justice
June 2008