Using a Firearm in Commission of Offence

Using a Firearm in Commission of Offence

The offence of using a firearm in the commission of an offence is outlined in section 85(1) of the Criminal Code.

A person commits the offence of using a firearm in the commission of an offence when they use a firearm while committing or attempting to commit another offence such as breaking and entering or theft under $5,000.

For the purposes of the Criminal Code, the definition of firearm includes items other than a pistol, handgun, or rifle.

Examples

Person A breaks into person B’s home at night through their backdoor while holding a shotgun.

Person C yells out that they have a gun while pointing to one visible in their jacket pocket before ordering person D to stay down and stop moving.

Cases

R. v. Meszaros, 2013 ONCA 682

In R. v. Meszaros, the accused was charged with one count of using a firearm in the commission of an offence when, while holding a shotgun, he assaulted a young man he caught trespassing on his property. The accused saw the man fishing in his pond, fired the gun once, and ordered this man to stay put before demanding that he return the fish to the pond.

R. v. Malatesta, 2005 CanLII 5474 (ON SC)

In R. v. Malatesta, the accused was charged with one count of using a firearm in the commission of an offence after he shot another individual several times during a heated confrontation.

Offence Specific Defence(s)

Excluded Offences

A person cannot be charged with the offence of using a firearm in the commission of an offence in relation to offences like robbery and discharging a firearm with intent, where the offence already recognizes a firearm or other weapon was used.

Mere Possession of a Firearm

Where a person has a firearm on them, but they do not use it while committing any other offences, they have not completed the offence of using a firearm in the commission of an offence.

No Possession of a Firearm

Where a person threatens to use a firearm, but they do not have one on them or nearby, they have not completed the offence of using a firearm in the commission of an offence.

Definition of Firearm

If the person is in possession of an object that does not fall under the Criminal Code’s definition of a “firearm” then they have not committed the offence of using a firearm in the commission of an offence.