R. v. Andrade, 2014 ONSC 655
[85] Generally speaking, by the enactment of s. 85 of the Criminal Code, Parliament decided to impose an additional penalty, by way of a consecutive sentence, upon any accused who “uses” a firearm or imitation firearm while committing or attempting to commit an indictable offence (except for certain listed offences), or during flight after committing or attempting to commit an indictable offence. The use of firearms or imitation firearms in the commission of other crimes is fraught with great public danger and is gravely disturbing to members of the community, and Parliament has tried to protect the public from such danger, alarm and intimidation by enacting this provision. See: R. v. Langevin (1979), 1979 CanLII 2999 (ON CA), 47 C.C.C. (2d) 138 (Ont.C.A.) at p. 146; R. v. Belair (1981), 1981 CanLII 1625 (ON CA), 61 C.C.C. (2d) 461 (Ont.C.A.) at p. 463; R. v. MacGuigan, 1982 CanLII 41 (SCC), [1982] 1 S.C.R. 284, at pp. 312-316; R. v. Scott (2000), 2000 BCCA 220 (CanLII), 145 C.C.C. (3d) 52 (B.C.C.A.) at para. 43; Affirmed: 2001 SCC 73, [2001] 3 S.C.R. 425.
[86] Before an accused may be found guilty of using a firearm or imitation firearm while committing an indictable offence, however, the accused must be found guilty of the underlying indictable offence. That is the only way the deterrent purpose of s. 85 of the Code can logically be achieved. In other words, without the prerequisite, distinct conviction and sentence for the underlying indictable offence, there would be nothing to which the sentence for the s. 85 offence can be made consecutive. That is not to say that the conviction and sentence for the underlying offence must take place at some previous point in time to the conviction and sentence in relation to the offence under s. 85 of the Code. Such convictions and sentences may (and often are) obtained and imposed simultaneously. However, there must be a conviction for the underlying offence – a mere finding of fact that such an underlying offence was committed is not sufficient. See: R. v. Pringle, 1989 CanLII 65 (SCC), [1989] 1 S.C.R. 1645, at pp. 1653-1655.
[87] These principles have clear application in the present case. The underlying offence in this case is the offence alleged in count one of the indictment, namely, possession of an imitation weapon (a handgun) for a purpose dangerous to the public peace, contrary to s. 88(1) of the Criminal Code. The gravamen of this offence, as specifically alleged against the accused, is his alleged possession of an imitation weapon for a purpose dangerous to the public peace. To be guilty of this offence, the accused need not use the imitation firearm. He need only possess it for the prohibited purpose. In this way, this underlying offence is not unlike any other potential underlying criminal offence, such as robbery, theft, break and enter, or sexual assault, which may be committed without the accused using any firearm or imitation firearm.
[88] Further, the legislative purpose of s. 85 of the Code is clearly engaged in the present case by virtue of the fact that the accused did not merely possess the imitation firearm for the prohibited purpose, he actually used the imitation firearm while committing that underlying indictable offence. More particularly, Mr. Andrade pulled his imitation firearm from its concealed location in his pants, and used it to forcefully strike Rudy in the head, and to intimidate others in the general vicinity. See: R. v. Krug, 1985 CanLII 2 (SCC), [1985] 2 S.C.R. 255, at p. 263; R. v. Steele, [2007] 3 S.C.R. 3, 2007 SCC 36, at paras. 25-37. In this regard it is noteworthy that, in Bailey v. United States, 516 U.S. 137 (1995), at p. 144, quoted with approval by the Supreme Court of Canada in R. v. Steele, at para. 30, the court adopted an “active-employment” definition for the “use” of a firearm in legislation the equivalent of s. 85 of the Criminal Code. In this regard Justice O’Connor noted that this understanding of the term “use” certainly included “brandishing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire a firearm. [emphasis added].
[89] I do not read the decision of the British Columbia Court of Appeal in R. v. Chang as suggesting a contrary conclusion. While the 2:1 majority of the court quashed the conviction of the accused for using a firearm while committing an indictable offence, notwithstanding the fact that he was also convicted of possession of a firearm for a purpose dangerous to the public peace, this result appears to have been driven by the unusual circumstances of that case. The accused had been acquitted of all of the offences in which the firearm was alleged to have been “used” by the accused (i.e. attempted murder, pointing a firearm, and assault), and the only evidence that the accused “used” the firearm was that he was in possession of the firearm for an unlawful purpose. On the evidence in that case, the majority of the court simply could not discern any evidentiary basis supporting the conclusion any possession of the firearm by the accused for an unlawful purpose could be seen as constituting a separate “use” of the firearm, that was essential to the conviction for the offence contrary to what is now s. 85 of the Code. In reaching this conclusion, the majority of the court focused on the fact that “using” a firearm had to require proof of “something more” than merely “carrying” a firearm, being “armed” with a firearm, or being in “possession” of a firearm.
[90] Accordingly, properly understood, the decision in R. v. Chang does not assist the accused. In the present case, as I have already indicated, the evidence reveals not only that Mr. Andrade was in possession of the imitation firearm for a purpose dangerous to the public peace, but also that Mr. Andrade actually used the imitation firearm to violently strike Rudy in the face and intimidate the other people in the surrounding area. In the present case, the “something more” that was held in R. v. Chang to be required in order to prove the offence contrary to s. 85 of the Criminal Code, was furnished by Mr. Andrade’s violent use of his imitation firearm.
[91] After carefully considering all of the evidence in this case, I am satisfied beyond a reasonable doubt that Mr. Andrade is guilty of both of the crimes alleged in the indictment.
[92] The accused was clearly in possession of an imitation handgun, and I am satisfied beyond a reasonable doubt that his possession of this weapon was for a purpose dangerous to the public peace, in that Mr. Andrade subjectively possessed the imitation firearm for a purpose that was, in fact, dangerous to the public peace. He took possession of this imitation firearm for the specific purpose of employing it in his anticipated confrontation with Rudy and the other members of his group, to intimidate and frighten them and/or to use in acts of potential violence against them.