R v Steele: What Does it Mean to ‘Use’ a Firearm?

In 1977 Parliament introduced a number of far-reaching amendments to the Criminal Code, RSC, 1985, c C-46 as part of a “gun control” scheme aimed at, among other things, reducing firearm-related crime. Significant among these changes was section 85(1) which provided that the use of a firearm while committing certain indictable offences should carry a mandatory minimum sentence over and above that imposed for a predicate offence. In creating such legislation, however, Parliament failed to provide a statutory definition of the term “use,” leaving considerable work for our courts.

In R v Steele, [2007] 3 SCR 3 [Steele], the question of what type of conduct constitutes “using” a firearm has once again found its way to the Supreme Court of Canada (“SCC”). This time the issue revolved around whether verbally or visually revealing the presence or immediate availability of a firearm during the commission of a crime is tantamount to actually using it.

The Facts

On October 30, 2003, Andre Omar Steele and three accomplices forcibly entered a home in Pitt Meadows, B.C., mistakenly believing the house to be the location of a significant marijuana grow operation. Upon entering, the intruders discovered three occupants. In an attempt to instill fear and ensure compliance in their victims, the intruders made several verbal references to a firearm, saying such things as “we have a gun” and “get the gun out.” According to the home’s occupants, one of the intruders was holding something in his hand about the size of a gun and another intruder pulled a dark metal object from inside his jacket.

Realizing their mistake, the intruders fled the house within minutes of their arrival. The residents made two 911 calls, providing a description of the intruders and their getaway vehicle. Police were quickly able to intercept a car matching the description provided, and upon searching it, they discovered several weapons including a loaded handgun under the driver’s seat.

The Decisions Below

According to the trial judge, Mr. Steele and his accomplices clearly “used” a firearm within the meaning of s. 85 and Steele was thus found guilty of the s. 85(1) offence as well as a number of other charges. The trial judge was satisfied that not only did all four intruders share a common intention to commit an armed break and enter, but that the evidence strongly suggested that a firearm had, indeed, been brought into the victims’ home.

At the British Columbia Court of Appeal (“BCCA”), Steele argued, inter alia, that the trial conviction was unreasonable owing to insufficient evidence of there having been a firearm brought into the house. An unanimous appellate court, however, found no basis for setting aside the conviction. Rather, the real issue before the BCCA was how to distinguish between the use of a firearm as opposed to mere possession of it. In contemplating this question, Huddart J.A. held at para 25 that “possession of a firearm becomes use under s. 85 of the Criminal Code when its use is threatened.” Huddart J.A. further clarified that regardless of if the loaded handgun had been in the house or in the intruders’ car parked immediately outside the house, it was at all possible moments “proximate for future use” (para 34). In other words, in the eyes of the BCCA, the gun was close enough at hand to be available to the intruders to carry out any threat implicitly made through their reference to it.

At The SCC

Ultimately, and to little surprise, the SCC chose not to rock the boat, opting to confirm Steele’s trial conviction under s. 85(1). It is, however, how they got to this decision that is worthy of at least brief comment. In contemplating the rather precarious possession/use dichotomy, the SCC spent significant time surveying the case law, which they found to be lacking in any principled approach. Turning to the BCCA decision in R v Chang, (1989) 50 CCC (3d) 413, as well as, an important United States Supreme Court case, Bailey v United States, the SCC attempted to further elucidate the issue with reference to what has been labelled in the U.S. context as the “active employment test.” According to Justice O’Conner in Bailey:

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’ (148).

Here, however, Fish J., speaking for a unanimous SCC, took debatably unnecessary pains to distinguish this understanding from Huddart J.A.’s “proximity for future use” approach in Steele:

With respect, I would not adopt that test for two reasons. First, because it provides no real measure — or even indication — of the degree of proximity required to found guilt: Trial courts are left to determine on their own, without a meaningful test, how near to the commission of the predicate offence, in space and time, the weapon must be in order for the requirement of use to be satisfied. Second, because I believe that ‘proximate for future use’ casts the net too wide. Section 85(1) is concerned with situations where the firearm is at the ready for present rather than future use (para 37).

One might argue that Fish J.’s rather heavy-handed distinction between the two tests is rooted more in semantics than substance. One might further conclude that had Fish J. read “future” as Huddart J.A had intended it (i.e. the immediate future), his distinction ought to have struck him as wholly unnecessary. Regardless of the semantics and tests, however, the SCC unanimously agreed with the BCCA’s confirmation of the trial judge’s decision: Mr. Steele had used a firearm.