Canadian Criminal Law/Offences/Use of Firearm in Commission of an Offence
Use of Firearm in Commission of an Offence | |
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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
editUsing firearms 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
editElements of Proof
editUsing a Firearm in Commission of an Offence - s. 85(1)
- ♰ identity of accused
- ♰ date and time of incident
- ♰ jurisdiction (incl. region and province)
- ♰ the accused used a firearm
- ♰ committing or attempting to commit an indictable offence; or,
- ♰ during flight after committing or attempting to commit an indictable offence.
Using an Imitation Firearm in Commission of an Offence - s. 85(2)
- ♰ identity of accused
- ♰ date and time of incident
- ♰ jurisdiction (incl. region and province)
- ♰ the accused was using an imitation firearm while
- ♰ committing or attempting to commit an indictable offence; or,
- ♰ 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
editA firearm must not merely "proximate for future use”, but rather must be ready for present use during the offence.[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)