Vol. 145, No. 8 — April 13, 2011

Registration

SI/2011-23 April 13, 2011

TACKLING AUTO THEFT AND PROPERTY CRIME ACT

ARCHIVED — Order Fixing April 29, 2011 as the Day on which that Act Comes into Force, Other than Section 12 which Came into Force on Assent

P.C. 2011-480 March 25, 2011

His Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to section 13 of the Tackling Auto Theft and Property Crime Act, chapter 14 of the Statutes of Canada, 2010, hereby fixes April 29, 2011 as the day on which that Act comes into force, other than section 12, which came into force on assent.

EXPLANATORY NOTE

(This note is not part of the Order.)

Bill S-9, the Tackling Auto Theft and Property Crime Act received Royal Assent on November 18, 2010. It is now Chapter 14, Statutes of Canada 2010. It provides for four new offences and makes consequential amendments to the Criminal Code, which it amended in four ways:

  • It created a distinct offence for motor vehicle theft;
  • It created the offence of tampering with a vehicle’s identification number (VIN);
  • It created the offences of trafficking in property obtained by crime and possession of property obtained by crime for the purpose of trafficking; and
  • It provided the mechanism that effectively allows the Canada Border Services Agency (CBSA) to prevent the cross-border movement of property obtained by crime, including stolen vehicles.

At present, motor vehicle theft is addressed by laying charges under the general theft provision in section 322 of the Criminal Code or under section 354, the offence of possession of property obtained by crime. The new offence of motor vehicle theft is now found at section 333.1 of the Criminal Code and is a hybrid offence. When proceeded on indictment, the offence is punishable by imprisonment for a maximum of 10 years and, in the case of a third or subsequent offence, regardless of whether the previous convictions were indictable or summary conviction offences, for a minimum of six months. The offence is punishable by a maximum of six months’ imprisonment, a fine of not more than $5,000, or both on summary conviction.

Currently, a person who alters a VIN in order to conceal the identity of a stolen vehicle is often charged with possession of property obtained by crime or an offence under other theft-related provisions, but the altering of a VIN does not in itself constitute an offence. However, the Criminal Code does specifically deal with VINs in subsection 354(2), which provides, in the context of a charge of possession of property obtained by crime means, for the assumption that if the VIN has been altered the vehicle has been stolen.

The offence of tampering with a VIN is now found at section 353.1 of the Criminal Code which makes it an offence to alter, remove or obliterate a VIN. The provision expressly provides at subsection 353.1(3) that lawful conduct, such as regular maintenance of the vehicle, body work and auto recycling or wrecking, would not fall under the ambit of the offence. The new VIN-tampering offence is a hybrid offence and provides for a maximum sentence of imprisonment for five years on indictment and a maximum of six months’ imprisonment, a fine of not more than $5,000, or both on summary conviction.

Currently, the act of trafficking property obtained by crime is dealt with by section 354 of the Criminal Code, possession of property obtained by crime. The new offences of trafficking in property obtained by crime and possession of property obtained by crime for the purpose of trafficking are now found at sections 355.2 and 355.4 respectively.

The definition of “traffic” is found in section 355.1 and covers a wide range of activities, including selling, offering and delivering, as well as exporting and importing. Accordingly, the offences will apply to all individuals who are involved in the process of moving stolen property in the entire chain of trafficking activities. The new trafficking offences are indictable offences if the value of the property is more than $5,000 or hybrid offences if the value of the property is $5,000 or less. When the value is greater than $5,000, the offence is punishable by a maximum sentence of 14 years’ imprisonment. When the value is $5,000 or less, it is punishable by a maximum of 5 years’ imprisonment on indictment and a maximum of 6 months’ imprisonment, or a fine of $5,000, or both on summary conviction.

The Customs Act authorizes the Canada Border Service Agency (CBSA) to seize goods only where the importation or exportation is prohibited under an Act of Parliament. No federal legislation currently prohibits the importation or exportation of property obtained by crime. To this end, the new section 355.3 contains an in rem prohibition on the importation and exportation of such property. This will allow CBSA officers to use the powers of the Customs Act to examine, seize and forfeit property obtained by crime that is imported or destined for exportation.

Pursuant to the coming into force provision in section 13 of Bill S-9, now S.C. 2010, c. 14, the Order brings the provisions of the Act into force on Friday, April 29, 2011, except for section 12. Section 12 is a coordinating amendment, and pursuant to subsection 5(4) of the Interpretation Act, it came into force on Royal Assent.

Section 12 is a conditional provision. It coordinates section 3 of Bill S-9 with section 2 of Bill C-16, the Ending House Arrest for Property and Other Serious Crimes by Serious and Violent Offenders Act, which is currently before the Standing Committee on Justice and Human Rights. Section 2 of Bill C-16 proposes to end the use of conditional sentences for a list of 11 offences prosecuted by indictment for which the maximum term of imprisonment is 10 years. Section 3 of Bill S-9 creates a new section 333.1 of the Criminal Code, a new offence of motor vehicle theft punishable by a maximum term of 10 years. If Bill C-16 passes, the coordinating amendment will add that offence to the list of the offences for which conditional sentences will not be available.