When a firearm, or even something that merely looks like a firearm, is used while committing another crime, the Criminal Code treats that as a separate, additional offence on top of whatever underlying crime occurred. This guide explains how using a firearm or imitation firearm during an offence is defined under section 85 of the Criminal Code, how it is sentenced, including the requirement that it be served consecutively, and what generally happens after this kind of charge in Ontario. It is general legal information, not legal advice about a specific case.
What Does Section 85 Cover?
Section 85(1) of the Criminal Code makes it a separate offence to use a firearm while committing an indictable offence, while attempting to commit one, or during flight after committing or attempting to commit one. This is an "add-on" charge, meaning it is laid in addition to, not instead of, whatever underlying offence the person was committing, such as robbery or aggravated assault. It reflects Parliament's judgment that involving a firearm in the commission of another crime is itself deserving of separate, additional punishment.
Imitation Firearms Are Treated the Same Way
Section 85(2) extends the same offence to the use of an imitation firearm, meaning anything designed or intended to look like a real firearm, even a toy or replica that could not actually fire a projectile. Parliament's rationale is that using an object that appears to be a firearm creates the same fear and danger in a victim as using a genuine firearm, regardless of whether the object could actually function as a weapon.
Classification and Penalties
Using a Weapon During an Offence (Section 85) at a Glance
- Classification
- Indictable offence only (no summary conviction option)
- Maximum penalty
- Up to 14 years imprisonment
- Mandatory minimum sentence
- None; the former 1-year (first offence) and 3-year (subsequent offence) minimums were repealed by Parliament in 2022
- Sentencing structure
- Must be served consecutively to the sentence for the underlying offence
These figures reflect the Criminal Code as of this page's last update, including the 2022 repeal of the mandatory minimum sentences under Bill C-5. Even without a mandatory minimum, courts continue to treat this offence seriously, and actual sentences depend on the specific facts and the person's record. A criminal lawyer can confirm the current state of the law for a specific case.
Consecutive Sentencing
A distinctive feature of section 85 is that any sentence imposed for this offence must be served consecutively to, meaning on top of and not at the same time as, the sentence imposed for the underlying offence. This is different from how sentences for multiple charges are often, though not always, structured in Canadian sentencing law, and it means a section 85 conviction will generally add real, additional time in custody beyond whatever sentence is imposed for the underlying crime itself.
Because section 85 requires an underlying indictable offence, a person cannot be convicted under this section on its own; it always accompanies a conviction, or at least a charge, for another indictable offence.
How This Relates to Other Weapons Charges
Section 85 is distinct from possession-based weapons offences, such as those discussed on our unauthorized possession page and our possession of a prohibited or restricted weapon page, since those focus on simply having a firearm rather than using it during another crime. A person could potentially face charges under multiple sections at once: for example, someone who commits a robbery with an unlicensed firearm could face the underlying robbery charge, a section 85 charge for using the firearm during that robbery, and a separate unauthorized possession charge for having the firearm without a licence in the first place.
Because section 85 always accompanies another charge, resolving the underlying offence, whether through a trial, a guilty plea, or a withdrawal, generally determines the outcome of the section 85 charge as well. It is rarely useful to think of the two charges in complete isolation from each other.
Possible Defences
Because section 85 depends on a conviction, or at least proof, of an underlying indictable offence, defending against the underlying charge is often the most direct way to defend against a section 85 charge as well. Beyond that, issues specific to section 85 can include whether the object used actually meets the legal definition of a firearm or imitation firearm, and whether the Crown can prove the object was genuinely "used" in a way connected to the underlying offence, as opposed to merely being present. A criminal lawyer should review the full disclosure, including how the alleged weapon was identified and described, before advising on possible defences.
What Happens After This Charge
Given that section 85 always accompanies another serious indictable offence, a person facing this charge is very unlikely to be released directly by police and will typically face a contested bail hearing, particularly given the Crown's interest in the firearm-related element of the case. The case then proceeds through the standard indictable-offence process alongside the underlying charge, including disclosure, before moving toward a resolution or a trial. See our sentencing overview and criminal records overview for more on what follows a conviction.
Because a section 85 conviction adds a consecutive sentence on top of the underlying offence, it can meaningfully affect plea negotiations. In some cases, resolving the underlying charge may include discussions about whether the Crown will proceed with the section 85 charge at all, given the significant additional custody time it can add to an overall sentence.
Historical case law under section 85 has considered a range of scenarios, from a firearm openly displayed during a robbery to a firearm carried but never shown during a drug transaction gone wrong. Courts examine the full context to determine whether the object was genuinely used in connection with the offence, rather than merely being somewhere in the vicinity of the accused at the time.
Frequently Asked Questions
Can I be charged under section 85 on its own, without any other charge?
No. Section 85 requires proof of an underlying indictable offence being committed, attempted, or fled from. It is always an additional charge alongside another offence, not a standalone one.
Is using a fake or toy gun treated the same as using a real firearm under this section?
Yes. Section 85(2) applies the same offence, with the same maximum penalty, to the use of an imitation firearm, meaning anything designed or intended to look like a real firearm.
Is there still a mandatory minimum sentence for this offence?
No, not as of this page's last update. Parliament repealed the mandatory minimum sentences that used to apply under section 85 through Bill C-5 in 2022. Courts still retain discretion to impose a significant sentence.
What does "consecutive sentencing" mean in practice?
It means the sentence for the section 85 conviction is added on top of the sentence for the underlying offence, rather than being served at the same time. This generally results in more total time in custody than if the sentences were served concurrently.
Does this charge apply if I only threatened to use a weapon without showing it?
Section 85 generally requires that a firearm or imitation firearm actually be used in connection with the offence. Whether specific conduct, such as a verbal reference to a weapon without displaying one, meets this threshold depends on the facts of the case.