Marginal note:1995, c. 39, s. 139

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

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

    (2) When an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant 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.

  • Marginal note:Exception — complainant aged 14 or 15

    (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 complainant who is 14 years of age or more but under the age of 16 years, it is a defence that the complainant 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 complainant.

  • Marginal note:Exception for transitional purposes

    (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):

  • Marginal note:Mistake of age

    (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.

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

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

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

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

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

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

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

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

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

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

  Marginal note:Definitions

  • 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”

  « agent évaluateur »

  “evaluating officer” 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

    (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.

  • Marginal note:Video recording

    (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).

  • Marginal note:Samples of breath or blood

    (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.

  • Marginal note:Evaluation

    (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.

  • Marginal note:Video recording

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

  • Marginal note: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 (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.

  • Marginal note:Samples of bodily substances

    (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.

  • Marginal note:Condition

    (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.

  • Marginal note:Failure or refusal to comply with demand

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

  • Marginal note:Only one determination of guilt

    (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.