Saying and using

A firearm is “used” in the commission of an offence if its presence or immediate availability is revealed: R v Steele [2007] SCC 36 (20 July 2007). There, a gun was mentioned to occupants of a house during the commission of a “break and enter” where some of the four offenders used phrases such as “We have a gun”, “Get the gun”, and “Get the gun out”.

A loaded gun was, shortly afterwards, found in the offenders’ car. Two of the occupants of the house had seen one of the offenders reach for something that might have been a gun. The trial judge found as a fact that one of the offenders had brought the gun into the house (para 40). The only really live issue on this appeal was whether the judge had made that finding to the necessary standard of beyond reasonable doubt. The Supreme Court held that she had, and that therefore it was not necessary to consider whether the offenders could be liable on the alternative basis that the gun, although left in the car during the break and enter, was immediately available to the offenders at the material time.

This latter source of liability, when the firearm is immediately available to the offender, was held to be “use” of the firearm (para 32), following the United States Supreme Court in Bailey v US, 516 US 137 (1995). The Canadian court quoted (para 30) the following passage (p 148) from that case:

“The active-employment understanding of “use” certainly includes brandishing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire a firearm. We note that this reading compels the conclusion that even an offender’s reference to a firearm in his possession could satisfy §924(c)(1). Thus, a reference to a firearm calculated to bring about a change in circumstances of the predicate offense is a “use,” just as the silent but obvious and forceful presence of a gun on a table can be a “use.””

In Steele it was emphasised that the firearm must actually exist and be immediately available, so that “idle” threats of use of a gun (which did not in fact exist) would not be “use” of the firearm (para 35). Nor did the Supreme Court approve of the Court of Appeal’s requirement of “proximate” availability, as that left the degree of proximity vague, and the offence required present use rather than future use (para 37).

In New Zealand it has been held that producing a gun from a bag when confronted by a police officer, so as to make the officer fear for his safety, is “using” the firearm: R v Swain (1992) 8 CRNZ 657. On the basis of Steele, it would also be use of the gun if the offender were to say (threateningly) to the officer that he had a gun in the bag.