section 85(1)

INTRODUCTION AND BRIEF DESCRIPTION

Using a firearm while committing or attempting to commit an indictable offence is an offence under section 85(1) of the Criminal Code of Canada.

SECTION WORDING

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.

EXPLANATION

Section 85(1) of the Criminal Code of Canada outlines the offence of using a firearm in the commission of a criminal offence. The section applies to individuals who use a firearm, regardless of whether they cause bodily harm or intending to cause harm to anyone in the process. Subsection (a) of Section 85(1) provides that a person commits an offence if they use a firearm while committing an indictable offence. However, this does not apply to certain serious offences such as criminal negligence causing death, manslaughter, attempted murder, discharging a firearm with intent, sexual assault with a weapon, aggravated sexual assault, kidnapping, hostage-taking, robbery, or extortion. Subsection (b) of Section 85(1) stipulates that an individual is guilty of an offence if they use a firearm while attempting to commit an indictable offence. This section applies whether or not the individual was successful in the attempt to commit the offence. Lastly, Subsection (c) of Section 85(1) outlines that if an individual uses a firearm during flight after committing or attempting to commit an indictable offence, they are guilty of an offence. This section is intended to deter individuals from using firearms to evade authorities after committing or attempting to commit a serious offence. Overall, Section 85(1) of the Criminal Code of Canada makes it an offence to use a firearm in connection with an indictable offence, whether during the commission of an offence, in an attempt to commit an offence or during getaway after committing an indictable offence. This provision of the Criminal Code seeks to deter the use of firearms in crime and serves as a stern reminder that the use of firearms in the commission of criminal activities has severe consequences.

COMMENTARY

Section 85(1) of the Criminal Code of Canada criminalizes the use of a firearm in the commission, attempted commission, or flight after the commission or attempted commission of an indictable offense, except for certain specific offenses. The provision is aimed at ensuring public safety and reducing the number of violent crimes committed with firearms in Canada. One of the key features of Section 85(1) is that it does not require the person using the firearm to cause bodily harm to anyone. Merely using a firearm in the commission of an offense is enough to satisfy the requirements of the provision. This means that even if the victim is unharmed, the offender may still be charged and convicted under this section. While some may argue that this is too broad of a provision, it is worth noting that the use of a firearm carries a significant potential for harm and trauma, regardless of the outcome of the situation. Another notable aspect of Section 85(1) is the list of excluded offenses. These include criminal negligence causing death, manslaughter, attempted murder, and sexual assault with a weapon, amongst others. The exclusion of these offenses likely reflects a recognition that the use of a firearm in these situations is already dealt with under other provisions of the Criminal Code, and that the inclusion of these offenses would result in unnecessary duplication and complexity. The provision's specificity with respect to indictable offenses is also noteworthy. Generally, the more serious offenses under Canadian law are classified as indictable offenses, including offenses against the person (e.g. murder, assault), property (e.g. theft, fraud), and drug offenses. This specificity reflects the seriousness with which the use of firearms during criminal activity is viewed, and the understanding that such activity poses a significant threat to the public. One potential issue with Section 85(1) is the potential for subjectivity in its application. For example, what constitutes flight" after the commission or attempted commission of an offense may be open to interpretation. Furthermore, the use of a firearm during an offense may be readily apparent in some situations, but more difficult to establish in others. It is therefore important that the court take due regard in determining whether Section 85(1) applies in any given case to ensure that the provision is not overextended. Overall, Section 85(1) of the Criminal Code of Canada serves as an important mechanism for curbing the use of firearms in criminal activity, promoting the safety of Canadians. Although its application requires care and attention, the provision is a necessary tool in the broader effort to reduce violent crime in Canada.

STRATEGY

Section 85(1) of the Criminal Code of Canada is a very serious offence as it deals with the use of firearms during the commission or attempt to commit an indictable offence. A firearm is seen as a weapon of deadly force and is very dangerous to human life. Therefore, it is important to consider some of the strategic issues that can arise when dealing with this section of the Criminal Code. One of the strategic considerations to be made when dealing with Section 85(1) of the Criminal Code is the need for effective communication between the police and the Crown prosecution. This is because the nature of the crime is such that it requires a high level of expertise and understanding of the law, evidence, and facts of the case. Therefore, there is a need for collaboration between the police and the Crown in order to ensure that the charge is sustained and evidence is properly gathered. Another strategic consideration is the use of the appropriate charges. This means choosing the right charges that will bring the most significant penalties and consequences to the accused. This consideration is important as it may affect how the accused approaches the case; if the charges are too severe, the accused may plead guilty to the lesser charges, whereas if the charges are too light, the accused may take the risk of defending themselves. This decision, therefore, requires careful analysis of the evidence at hand and the circumstances surrounding the crime. A third strategic consideration is pre-trial discussions and negotiation. This is a stage where the defence and the prosecution come to an agreement, outside of the courtroom, on the best course of action for the case. This stage is important in Section 85(1) cases because of the severity of the offence, and the consequences that may arise from the case. By negotiating, the defence may argue for a more lenient sentence and the prosecution may seek a greater sentence. A negotiated agreement can be beneficial to both parties as it may save time and resources in the courtroom and can result in a more favourable outcome for all parties. Finally, one of the strategies that could be employed when dealing with Section 85(1) of the Criminal Code is expert testimony. Expert testimony can strengthen the prosecution's case by providing evidence in support of the facts. This is important because the accused may argue that he/she did not fire the weapon or that he/she did not have a weapon during the commission or attempt of the offence. By using expert testimony, the prosecution can counter these arguments with scientific evidence. In conclusion, Section 85(1) of the Criminal Code of Canada is a serious offence carrying significant penalties and consequences. Therefore, strategic considerations, such as effective communication, the use of appropriate charges, pre-trial discussions and negotiation, and expert testimony, should be considered when dealing with such cases. Through the implementation of these strategies, the prosecution will have a better chance of obtaining a favourable outcome.