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Criminal Code (R.S.C., 1985, c. C-46)

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Act current to 2019-08-28 and last amended on 2019-08-15. Previous Versions

PART VIII.1Offences Relating to Conveyances (continued)

Investigative Matters (continued)

Marginal note:Warrants to obtain blood samples

  •  (1) A justice may issue a warrant authorizing a peace officer to require a qualified medical practitioner or a qualified technician to take the samples of a person’s blood that, in the opinion of the practitioner or technician taking the samples, are necessary to enable a proper analysis to be made to determine the person’s blood alcohol concentration or blood drug concentration, or both, if the justice is satisfied, on an information on oath in Form 1 or on an information on oath submitted to the justice by telephone or other means of telecommunication, that

    • (a) there are reasonable grounds to believe that the person has, within the preceding eight hours, operated a conveyance that was involved in an accident that resulted in bodily harm to themselves or another person or in the death of another person;

    • (b) there are reasonable grounds to suspect that the person has alcohol or a drug in their body; and

    • (c) a qualified medical practitioner is of the opinion that

      • (i) by reason of any physical or mental condition of the person, the person is unable to consent to the taking of samples of their blood, and

      • (ii) the taking of samples of the person’s blood will not endanger their health.

  • Marginal note:Form

    (2) A warrant issued under subsection (1) may be in Form 5 or 5.1, varied to suit the case.

  • Marginal note:Procedure — telephone or other means of telecommunication

    (3) Section 487.1 applies, with any modifications that the circumstances require, in respect of an application for a warrant that is submitted by telephone or other means of telecommunication.

  • Marginal note:Duration of warrant

    (4) Samples of blood may be taken from a person under a warrant issued under subsection (1) only during the time that a qualified medical practitioner is satisfied that the conditions referred to in subparagraphs (1)(c)(i) and (ii) continue to exist.

  • Marginal note:Copy or facsimile to person

    (5) If 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 samples of blood are taken.

  • Marginal note:Taking of samples

    (6) Subsections 320.28(7) to (10) apply with respect to the taking of samples of blood under this section.

  • 2018, c. 21, s. 15

Marginal note:Testing blood — drug or alcohol

 Samples of a person’s blood that are taken for the purposes of this Part may be analyzed to determine the person’s blood alcohol concentration or blood drug concentration, or both.

  • 2018, c. 21, s. 15

Evidentiary Matters

Marginal note:Breath samples

  •  (1) If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same — or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made — if

    • (a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst;

    • (b) there was an interval of at least 15 minutes between the times when the samples were taken; and

    • (c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood.

  • Marginal note:Blood samples — concentration when sample taken

    (2) The result of an analysis made by an analyst of a sample of a person’s blood is proof of their blood alcohol concentration or their blood drug concentration, as the case may be, at the time when the sample was taken in the absence of evidence tending to show that the analysis was performed improperly.

  • Marginal note:Evidence not included

    (3) Evidence of the following does not constitute evidence tending to show that an analysis of a sample of a person’s blood was performed improperly:

    • (a) the amount of alcohol or a drug that they consumed;

    • (b) the rate at which the alcohol or the drug would have been absorbed or eliminated by their body; or

    • (c) a calculation based on the evidence referred to in paragraphs (a) and (b) of what their blood alcohol concentration or blood drug concentration would have been at the time the sample was taken.

  • Marginal note:Presumption — blood alcohol concentration

    (4) For the purpose of paragraphs 320.14(1)(b) and (d), if the first of the samples of breath was taken, or the sample of blood was taken, more than two hours after the person ceased to operate the conveyance and the person’s blood alcohol concentration was equal to or exceeded 20 mg of alcohol in 100 mL of blood, the person’s blood alcohol concentration within those two hours is conclusively presumed to be the concentration established in accordance with subsection (1) or (2), as the case may be, plus an additional 5 mg of alcohol in 100 mL of blood for every interval of 30 minutes in excess of those two hours.

  • Marginal note:Admissibility of evaluating officer’s opinion

    (5) An evaluating officer’s opinion relating to the impairment, by a type of drug that they identified, or by a combination of alcohol and that type of drug, of a person’s ability to operate a conveyance is admissible in evidence without qualifying the evaluating officer as an expert.

  • Marginal note:Presumption — drug

    (6) If the analysis of a sample provided under subsection 320.28(4) demonstrates that the person has a drug in their body that is of a type that the evaluating officer has identified as impairing the person’s ability to operate a conveyance, that drug — or, if the person has also consumed alcohol, the combination of alcohol and that drug — is presumed, in the absence of evidence to the contrary, to be the drug, or the combination of alcohol and that drug, that was present in the person’s body at the time when the person operated the conveyance and, on proof of the person’s impairment, to have been the cause of that impairment.

  • Marginal note:Admissibility of result of analysis

    (7) The result of an analysis of a sample of a person’s breath, blood, urine, sweat or other bodily substance that they were not required to provide under this Part may be admitted in evidence even if the person was not warned before they provided the sample that they were not required to do so or that the result of the analysis of the sample might be used in evidence.

  • Marginal note:Evidence of failure to provide sample

    (8) Unless a person is required to provide a sample of a bodily substance under this Part, evidence that they failed or refused to provide a sample for analysis 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 any proceedings under this Part.

  • Marginal note:Admissibility of statement

    (9) A statement made by a person to a peace officer, including a statement compelled under a provincial Act, is admissible in evidence for the purpose of justifying a demand made under section 320.27 or 320.28.

  • Marginal note:Evidence of failure to comply with demand

    (10) In any proceedings in respect of an offence under section 320.14, evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made under section 320.27 or 320.28 is admissible and the court may draw an inference adverse to the accused from that evidence.

  • 2018, c. 21, s. 15

Marginal note:Certificates

  •  (1) A certificate of an analyst, qualified medical practitioner or qualified technician made under this Part is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person who signed the certificate.

  • Marginal note:Notice of intention to produce certificate

    (2) No certificate shall be received in evidence unless the party intending to produce it has, before the trial, given to the other party reasonable notice of their intention to produce it and a copy of the certificate.

  • Marginal note:Attendance and cross-examination

    (3) A party against whom the certificate is produced may apply to the court for an order requiring the attendance of the person who signed the certificate for the purposes of cross-examination.

  • Marginal note:Form and content of application

    (4) The application shall be made in writing and set out the likely relevance of the proposed cross-examination with respect to the facts alleged in the certificate. A copy of the application shall be given to the prosecutor at least 30 days before the day on which the application is to be heard.

  • Marginal note:Time of hearing

    (5) The hearing of the application shall be held at least 30 days before the day on which the trial is to be held.

  • Marginal note:Certificate admissible in evidence

    (6) In proceedings in respect of an offence under subsection 320.18(1), the following certificates are evidence of the facts alleged in them without proof of the signature or official character of the person who signed them:

    • (a) a certificate setting out with reasonable particularity that the person named in it is prohibited from operating a motor vehicle in the province specified in the certificate, signed by the person who is responsible for the registration of motor vehicles in that province or any person authorized by the responsible person to sign it; and

    • (b) a certificate setting out with reasonable particularity that the person named in it is prohibited from operating a conveyance other than a motor vehicle, signed by the Minister of Transport or any person authorized by him or her to sign it.

  • Marginal note:Onus

    (7) If it is proved that a prohibition under paragraph 320.18(1)(b) has been imposed on a person and that notice of the prohibition has been mailed to them at their last known address, that person is, beginning on the tenth day after the day on which the notice is mailed, in the absence of evidence to the contrary, presumed to have received the notice and to have knowledge of the prohibition, of the date of its commencement and of its duration.

  • 2018, c. 21, s. 15
 
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