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Digest: R. v. Steele

[2007] S.C.J. No. 36
2007 SCC 36

Court File No. 31447

Supreme Court of Canada

July 20, 2007
On appeal from the British Columbia Court of Appeal, [2006] B.C.J. No. 492.

      Criminal law — Offences — Weapons offences — Property offences — Breaking and entering — Appeal by Steele from his conviction under s. 85(1) of the Criminal Code dismissed — While committing the indictable offence of break and enter, appellant and his accomplices referred repeatedly to a firearm in their physical possession or readily at hand — No basis for interfering with trial judge's findings — An offender "used" a firearm, within the meaning of s. 85(1), where, to facilitate the commission of an offence or for purposes of escape, the offender revealed by words or conduct the actual presence or immediate availability of a firearm.

       Appeal by Steele from his conviction under s. 85(1) of the Criminal Code. Appellant and his accomplices forcibly entered a house in search of a marijuana grow operation. They informed the residents that they had a gun, and made repeated references to the gun. One resident testified that she saw an intruder pull "a dark metal object" from his jacket. The four intruders then fled the home by car, the residents called 911, and the intruders were intercepted minutes later by police. In the car, police found several weapons including a loaded handgun under the driver's seat. At issue on this appeal was whether appellant and his three accomplices "used" a firearm, while committing or attempting to commit the indictable offence of break and enter, within the meaning of s. 85(1).

       HELD: Appeal dismissed. An offender "used" a firearm, within the meaning of s. 85(1), where, to facilitate the commission of an offence or for purposes of escape, the offender revealed by words or conduct the actual presence or immediate availability of a firearm. Where two or more offenders were acting in concert, the usual rules of complicity applied. While committing the break and enter, appellant and his accomplices referred repeatedly to a firearm in their physical possession or readily at hand, and they did so to facilitate the commission of that offence. The inference that the gun was brought into the house was reasonably supported by the evidence before the trial judge. There was no proper basis for interfering with the trial judge's finding that the firearm was "used" within the meaning of s. 85(1), during the commission of the break and enter.

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