Canadian Criminal Sentencing/Offences/Use of Firearm in Commission of an Offence
| 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
editUsing 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.
Punishment
(3) Every person who commits an offence under subsection (1) or (2) is guilty of an indictable offence and liable
- (a) in the case of a first offence, except as provided in paragraph (b), to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of one year; and
- (b) in the case of a second or subsequent offence, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of three years.
- (c) [Repealed, 2008, c. 6, s. 3]
...
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.
– [1]
Application
editUnder s. 85(4), all sentences under s. 85(1) or 85(2) must be served consecutively to any other penalty imposed.
Ancillary Orders
edit- 109(1)(b) Weapons Prohibition Orders (Mandatory)
- 491 Weapon Forfeiture Order (Mandatory)
- DNA Order - Secondary Designated Offence (Discretionary)
- 462.37(2.01) Forfeiture of Property (Discretionary)