Canadian Criminal Law/Offences/Use of Firearm in Commission of an Offence

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Use of Firearm in Commission of an Offence
s. 85 of the Crim. Code
Election / Plea
Crown Election Indictable
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Indictable Dispositions
Minimum 1 year (first)
3 years (second or more)
Maximum 14 years
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Using firearm in commission of offence
85. (1) Every person commits an offence who uses a firearm, whether or not the person causes or means to cause bodily harm to any person as a result of using the firearm,

(a) while committing an indictable offence, other than an offence under section 220 (criminal negligence causing death), 236 (manslaughter), 239 (attempted murder), 244 (discharging firearm with intent), 244.2 (discharging firearm — recklessness), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), subsection 279(1) (kidnapping) or section 279.1 (hostage taking), 344 (robbery) or 346 (extortion);
(b) while attempting to commit an indictable offence; or
(c) during flight after committing or attempting to commit an indictable offence.

Using imitation firearm in commission of offence
(2) Every person commits an offence who uses an imitation firearm

(a) while committing an indictable offence,
(b) while attempting to commit an indictable offence, or
(c) during flight after committing or attempting to commit an indictable offence,

whether or not the person causes or means to cause bodily harm to any person as a result of using the imitation firearm.

...

R.S., 1985, c. C-46, s. 85; 1995, c. 39, s. 139; 2003, c. 8, s. 3; 2008, c. 6, s. 3; 2009, c. 22, s. 3.

CCC

Proving the Offence[edit]

Elements of Proof[edit]

Using a Firearm in Commission of an Offence - s. 85(1)

  1. identity of accused
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. ♰ the accused used a firearm
    1. committing or attempting to commit an indictable offence; or,
    2. during flight after committing or attempting to commit an indictable offence.

Using an Imitation Firearm in Commission of an Offence - s. 85(2)

  1. identity of accused
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the accused was using an imitation firearm while
    1. committing or attempting to commit an indictable offence; or,
    2. during flight after committing or attempting to commit an indictable offence.

Items in bold are essential elements that make out the offence.

Tendering Exhibits[edit]

  • ♰ the firearm or imitation firearm

Interpretation[edit]

A firearm must not merely "proximate for future use”, but rather must be ready for present use during the offence.[1]

  1. R. v. Steele, 2007 SCC 36, [2007] 3 SCR 3

Motions and Orders[edit]

  • s.486.2(2) or 486.2(4) order for private testimony
  • s. 486.3(2) Order prohibiting cross examination
  • s. 486.5(1) or (2) publication ban
  • Video-recorded evidence by disabled person (s.715.2) or person under age 18 (s.715.1)