The Criminal Code sets out four different ways in which robbery may be committed. 

See Section 343, Criminal Code.

The offence of robbery does not necessarily involve the use of a firearm. Section 344 sets out the penalty provision for the offence, including where a firearm is used in the commission of the offence.

Section 85(1) of the Criminal Code sets out the offence of using a firearm in the commission of an indictable offence.  On its wording, the section 85(1) offence cannot be committed if the indictable offence committed happens to be the offence of robbery.

Section 85(1) of the Criminal Code reads:

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 … 344 (robbery).

In R. v. Cudmore, 2020 ONCA 389, the ONCA quashed the appellant’s conviction for the s. 85(1)(a) offence in light of the appellant’s conviction on the s. 344 robbery offence. This is clearly the right result; however, the ONCA’s finding at paragraph 6 that the use of a firearm is an essential element of the indictable offence of robbery under section 344 of the Criminal Code (which in my view is a penalty provision) is curious.

“[I]t is clear that where an accused is convicted of an offence under s. 344, s. 85(1) is not applicable, as the use of a firearm is already an essential element under s. 344.”

Proof of the use of a firearm is not an essential element of the offence of robbery. Proof that a firearm was used is relevant to the question of sentence only. 

R. v. D. (A.), 2003 BCCA 106 (CanLII), at para. 30.

Written by Stuart O’Connell (Barrister/Solicitor)