Backgrounder:

Tackling Violent Crime Act

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

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

• Tougher mandatory prison sentences for serious gun crime;
• 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. 

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

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

PROVISIONS TO COME INTO FORCE ON MAY 1, 2008

Tougher laws to address gun crimes

The Tackling Violent Crime Act provides for:

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 being placed on those accused of serious gun crimes.

• The accused will have to show why he or she should not be kept in jail while awaiting trial if they are charged with:
• Using a firearm to commit certain serious offences (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 Bill will:

• Raise the age at which youths can consent to non-exploitative sexual activity   from 14 to 16 years of age.
• Maintain 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).
• Include a close-in-age exception which would permit 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 pre-existing marriages and equivalent relationships.

PROVISIONS TO COME INTO FORCE ON JULY 2, 2008

Tougher sentencing and management of sexual and violent offenders

The Tackling Violent Crime Bill 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 would 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 clarify the range of conditions that may be imposed on those who are being released from jail.

Fighting impaired driving

The Tackling Violent Crime Bill will provide 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 Drug Recognition Experts) to: (a) test whether a person 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 five years’ imprisonment for more serious offences;
• Making it an offence to refuse a demand for tests or samples when the operator knows, or ought to know, that they have caused an accident resulting in death, with a maximum penalty of life;

• 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 – e.g., a minimum of 120 days in jail for a third impaired-driving offence.

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Department of Justice
May 2008