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Using a firearm in the commission of an offence is a distinct and very serious crime in Canada, classified as an indictable offence under Section 85 of the Criminal Code. Identified in police statistics under UCR Code 1455, this firearm use offence in Canada is charged when a person uses a firearm while committing, attempting to commit, or fleeing from an indictable offence. Importantly, the law applies even if the firearm is never fired and no one is physically injured. The existence and use of the gun in connection with another serious crime triggers a separate, additional charge with its own mandatory minimum and maximum penalties.
The Legal Definition
Criminal Code, s. 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.
In plain English, Section 85(1) makes it a separate crime to use a firearm in connection with another indictable offence. The law applies whether the underlying indictable offence is completed or only attempted, and it continues to apply while the person is escaping or fleeing after that offence. The statute makes clear that it does not matter whether the gun actually causes harm, or even whether the accused intended to cause harm. Simply using the firearm as part of the crime, or during the escape, is enough for liability under this section.
Some serious gun-related offences are excluded from Section 85(1) because they already contain their own firearm components and enhanced penalties, such as attempted murder with a firearm (s. 239), discharging a firearm with intent (s. 244), or sexual assault with a weapon (s. 272). In those cases, Parliament chose to address firearm involvement directly inside those specific offences rather than by layering on a Section 85 charge. For the full wording and context, readers can consult the official Criminal Code text published by the Department of Justice at Justice Laws – Criminal Code, s. 85.
Penalties & Sentencing Framework
- Offence type: Indictable offence (no summary option).
- Maximum penalty: Up to 14 years of incarceration.
- Mandatory minimum penalty: Typically 1 year or 3 years of incarceration, depending on circumstances such as prior convictions and sentencing notice provisions.
- Consecutive sentence: In practice, sentences under s. 85 are generally imposed in addition to, and consecutive to, the sentence for the underlying indictable offence.
Because Section 85 is a strictly indictable offence, it must proceed in a higher court process (such as the Superior Court of Justice in Ontario), and the accused is afforded the procedural protections and options associated with indictable matters. There is no summary conviction version. Parliament signalled the gravity of this conduct by attaching both a high maximum (14 years) and mandatory minimum prison terms, which restrict judicial discretion at the lower end of sentencing.
The mandatory minimum of 1 or 3 years varies depending on factors such as whether the accused has prior convictions for similar firearm offences and whether proper notice of an intention to seek a higher penalty has been given under Section 727 of the Criminal Code. Where the Crown establishes that the statutory conditions for the higher minimum are met—often involving repeat or aggravated firearm-related behaviour—the minimum sentence rises to 3 years. These mandatory minimums apply regardless of any mitigating personal circumstances, reflecting Parliament’s strong stance on deterring gun violence.
Sentences under Section 85 are typically ordered to run consecutively to the sentence for the underlying indictable offence (for example, robbery or break and enter). This means the offender serves the time for the underlying crime plus the time for using a firearm, rather than serving both sentences at the same time. In practical terms, a person convicted of robbery and using a firearm in the commission of that robbery faces a substantially longer total sentence than someone convicted of robbery alone. Courts also take into account the broader public safety concerns associated with gun use—such as the risk of escalation, potential for death or serious injury, and community fear—when determining an appropriate sentence within the statutory range.
Common Defenses
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Lawful excuse
Section 85(1) does not explicitly use the phrase “without lawful excuse,” but in practice, the Crown must still prove unlawful use of the firearm in the context of an indictable offence. A defense based on lawful excuse argues that the accused’s interaction with or use of the firearm was legally justified and not part of criminal conduct. Examples might include an individual who is lawfully in possession of a firearm (properly licensed, stored, and transported) and is mistakenly swept up in a police investigation of another person’s crime. If the evidence shows that the firearm was not being used to further an indictable offence, but rather was present for a legitimate and lawful purpose, the Section 85 charge may fail. The burden lies on the Crown to connect the use of the firearm directly to the commission, attempted commission, or flight from an indictable offence.
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Self-defense
Self-defense can be a powerful response to a Section 85 charge where the accused used a firearm to protect themselves or others from a real and imminent threat, and where their actions meet the requirements of the general self-defence provisions in the Criminal Code. The analysis focuses on whether the accused reasonably believed force was being used against them (or another person), whether their defensive act was committed for a defensive purpose, and whether the actions taken were reasonable in the circumstances. If a person uses a firearm defensively, and the underlying conduct is justified as self-defense, then there may be no underlying indictable offence at all. Without a valid predicate indictable offence (or attempt, or flight from such an offence), Section 85 cannot apply. Even where some criminal liability remains (for example, excessive force), self-defense may significantly reduce or alter responsibility for the firearm use, depending on the specific facts.
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Notice of increased penalty not provided under s. 727
Section 727 of the Criminal Code requires the Crown to give formal notice if it intends to rely on prior convictions or other factors to seek an increased penalty, including higher mandatory minimums. In the context of a Section 85 firearm use offence in Canada, the difference between a 1-year and 3-year mandatory minimum can turn on whether the Crown has properly complied with these procedural requirements. If the prosecution fails to deliver the required notice, or if the notice is defective, the court may be restricted to applying only the lower mandatory minimum or may have to disregard the enhanced penalty altogether. This defense is highly technical and does not negate guilt for the offence itself; rather, it limits the Crown’s ability to seek the harsher minimum sentence. Defence counsel will closely scrutinize the Crown’s notice practices in any Section 85 case where enhanced penalties are at stake.
Real-World Example
Imagine a person committing a robbery at a convenience store while brandishing a handgun. The firearm is loaded but never discharged. The robber points the gun at the clerk, demands money, and then flees the scene with cash in hand. Police later arrest the suspect, recover the handgun, and lay charges. In this scenario, the accused would almost certainly be charged with robbery under Section 344 of the Criminal Code as the primary indictable offence. On top of that, the Crown can lay a separate charge under Section 85(1) for using a firearm in the commission of an offence. Even though the gun was never fired and no one was injured, the act of pointing and brandishing the firearm while committing the robbery—and during flight—squarely fits the definition of a Section 85 offence. At sentencing, the court would consider the robbery and the firearm use separately, often imposing a significant prison term for the robbery and an additional consecutive term for the firearm use, within the range of 1 to 14 years (or 3 to 14 years if a higher mandatory minimum is properly engaged).
Record Suspensions (Pardons)
Because using a firearm in the commission of an offence under Section 85 is an indictable offence, record suspension rules are stricter than for summary conviction matters. Under current Parole Board of Canada practices, individuals convicted of this type of firearm use offence in Canada generally face a waiting period of around 10 years after completion of their entire sentence (including any probation and parole) before they can apply for a record suspension. The clock does not start until all aspects of the sentence are fully satisfied. When assessing an application, the Parole Board will look closely at the seriousness of the offence, the presence of any violence or threats, the involvement of a firearm, and the applicant’s conduct since conviction. While a record suspension does not erase the conviction, it can set it apart from active criminal records and may help reduce barriers to employment, travel, and housing. However, given the gravity of firearm-related crimes, applicants should expect careful scrutiny and the need to demonstrate consistent, law-abiding behaviour over a sustained period.
Related Violations
- Discharging Firearm with Intent (often charged where shots are actually fired with a specific harmful purpose)
- Robbery (particularly armed robbery, where a firearm is used to threaten or control victims)
- Extortion (where threats involving a firearm are used to obtain property, services, or other advantages)
