R. v. Steele, 2007 SCC 36, [2007] 3 SCR 3

                                                 SUPREME COURT OF CANADA

Between:

Andre Omar Steele

Appellant

and

Her Majesty The Queen

Respondent

‑ and ‑

Attorney General of Ontario

Intervener

Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

______________________________

R. v. Steele, [2007] 3 S.C.R. 3, 2007 SCC 36

Andre Omar Steele                                                                                                            Appellant

v.

Her Majesty The Queen                                                                                                 Respondent

and

Attorney General of Ontario                                                                                            Intervener

Indexed as:  R. v. Steele

Neutral citation:  2007 SCC 36.

File No.:  31447.

2007:  April 27; 2007:  July 20.

Present:  McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal for british columbia

Criminal law — Weapons — Using firearm in commission of offence — Type of conduct that constitutes “using a firearm” — Whether revealing presence or immediate availability of firearm by words or conduct is using firearm — Whether weapon must be in physical possession of offender or readily at hand — Criminal Code, R.S.C. 1985, c. C‑46, s. 85(1) .

Criminal law — Parties to offence — Common intention — Using firearm in commission of offence — Gun brought into house by one of intruders during break and enter — Whether rules of complicity apply such that all intruders involved in break and enter party to offence of using firearm in commission of offence — Criminal Code, R.S.C. 1985, c. C‑46, ss. 21 , 85 .

The accused and three accomplices forcibly entered a home at night looking for a marijuana grow operation.  The intruders hoped no one was there; in fact, its three occupants were home.  The residents heard the intruders say, “We have a gun”, “Get the gun, get the gun”, and “Get the gun out.”  One intruder was holding something in his hand about the size of a gun and one of the residents saw an intruder pull a dark metal object from his inside jacket.  All four intruders fled approximately five minutes after their arrival.  The residents made two 911 calls describing the intruders and their getaway car and, within minutes, the police intercepted a vehicle occupied by the accused and his accomplices.  They searched the car and found several weapons, including a loaded handgun.  The accused was charged with several offences, including using a firearm while committing or attempting to commit the indictable offence of break and enter contrary to s. 85(1)  of the Criminal Code .  The trial judge held that the four intruders had formed a common intention to carry out a break and enter and a gun was used to the knowledge of all four.  The accused was found guilty of the s. 85(1)  offence and the Court of Appeal upheld the conviction.

Held:  The appeal should be dismissed.  The conviction under s. 85(1)  of the Criminal Code  should be affirmed.

An offender “uses” a firearm within the meaning of s. 85(1)  of the Criminal Code  where, to facilitate the commission of an offence or for purposes of escape, the offender reveals by words or conduct the actual presence or immediate availability of a firearm.  The weapon must be in the physical possession of the offender or readily at hand.  Where two or more offenders act in concert, the usual rules of complicity apply.  This understanding of “use” reflects the two underlying purposes of s. 85 :  to prevent the danger of serious injury or death associated with the use of firearms, and to prevent victim intimidation and alarm.  Use includes discharging or pointing a firearm or displaying a firearm for the purpose of intimidation while committing an offence but the test is not met by mere possession of a firearm, idle threats that refer to a firearm, or evidence that a weapon was proximate for future use.  Section 85(1)  is concerned with situations where the firearm is at the ready for present rather than future use.  [19-20] [27] [32‑35] [37]

Here, the accused and his accomplices “used” a firearm within the meaning of s. 85(1)  of the Criminal Code .  They repeatedly referred to a firearm in their physical possession or readily at hand in order to facilitate the commission of the indictable offence of break and enter.  The trial judge’s reasons make plain that she was satisfied that the firearm was brought into the home by one of the intruders, and remained in the physical possession of that intruder, or another, during the break and enter.  The inference drawn by the trial judge that the intruders used the firearm was reasonably supported by the evidence and the conviction under s. 85(1)  does not amount to an unreasonable verdict.  Furthermore, given the trial judge’s finding that the intruders formed a common intention to carry out a break and enter and all four knew that a gun was involved, the accused is clearly a party to a s. 85(1)  offence committed in concert by all four intruders.  [38] [40] [43] [49‑50] [53]

Cases Cited

Discussed:  R. v. Covin, [1983] 1 S.C.R. 725; R. v. Chang (1989), 50 C.C.C. (3d) 413; Bailey v. United States, 516 U.S. 137 (1995); referred to:  McGuigan v. The Queen, [1982] 1 S.C.R. 284; Krug v. The Queen, [1985] 2 S.C.R. 255; R. v. Langevin (1979), 47 C.C.C. (2d) 138; R. v. Belair (1981), 24 C.R. (3d) 133; R. v. Scott (2000), 145 C.C.C. (3d) 52, aff’d [2001] 3 S.C.R. 425, 2001 SCC 73; R. v. Quon, [1948] S.C.R. 508; R. v. Gagnon (1995), 86 O.A.C. 381; R. v. Switzer (1987), 32 C.C.C. (3d) 303; R. v. Griffin (1996), 111 C.C.C. (3d) 567; Rowe v. The King, [1951] S.C.R. 713; R. v. Neufeld, [1984] O.J. No. 1747 (QL); Veilleux v. Quebec (Commission de protection du territoire agricole), [1989] 1 S.C.R. 839.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C‑34, s. 83(1) [rep. & sub. 1976-77, c. 53, s. 3].

Criminal Code, R.S.C. 1985, c. C‑46, ss. 21 , 85 , 267 , 272 .

Authors Cited

Black’s Law Dictionary, 6th ed.  St. Paul, Minn.:  West Publishing Co., 1990, “use”.

Canadian Oxford Dictionary, 2nd ed.  Toronto:  Oxford University Press, 2004, “use”.

APPEAL from a judgment of the British Columbia Court of Appeal (Southin, Donald and Huddart JJ.A.) (2006), 223 B.C.A.C. 154, 369 W.A.C. 154, 206 C.C.C. (3d) 327, [2006] B.C.J. No. 492 (QL), 2006 BCCA 114, upholding the accused’s conviction under s. 85(1)  of the Criminal Code  entered by Fisher J., 2005 CarswellBC 3330.  Appeal dismissed.

Phillip C. Rankin and Brent B. Olthuis, for the appellant.

Mary T. Ainslie and Mike J. Brundrett, for the respondent.

Jennifer Woollcombe, for the intervener.

The judgment of the Court was delivered by

Fish J. —

I

1                                   The appellant and three accomplices broke into and entered the wrong place at the wrong time.  They expected to find a marijuana grow operation and they hoped no one was there.  Instead, they broke into a residence adjacent to what had once been a marijuana grow operation — and its three occupants were home. 

2                                   The only issue on this appeal is whether the appellant and his accomplices used a firearm while committing that break and enter.  The trial judge found that they had.  She therefore convicted the appellant, Andre Omar Steele, under s. 85(1)  of the Criminal Code, R.S.C. 1985, c. C-46 .  In virtue of that provision, it is a distinct and separate offence to use a firearm while committing certain indictable offences, including break and enter.

3                                   For the reasons that follow, I am satisfied that the trial judge was entitled to conclude as she did.  I would therefore affirm Mr. Steele’s conviction at trial, and dismiss his present appeal to this Court.

II

4                                   On October 21, 2003, in Pitt Meadows, British Columbia, a neighbour surprised three young men hovering suspiciously, in mid-afternoon, near a house across the street.  She challenged them and they fled.  The appellant’s thumb prints were lifted by the police from the frame of the rear window through which he had attempted to gain entry.

5                                   Nine days later, on October 30, the appellant and three accomplices forcibly entered the same home shortly after midnight.  They awakened three residents.  One  intruder warned a female resident, Christina Reid, not to move and, evidently to ensure compliance, he immediately added: “We have a gun.”  Ms. Reid testified that the intruder had “something in his hand . . . about the size of a gun” (trial judge’s reasons, 2005 CarswellBC 3330, at para. 23).

6                                   Another resident, Rosemary Reid, heard a second intruder twice tell an accomplice to “Get the gun.”  She testified that the intruder “pulled a dark metal object from his inside jacket with his left hand” (ibid., at para. 24). 

7                                   Two of the intruders asked the residents: “Where are the drugs?” and one of them was heard by Larry Reid, the third resident, to tell an accomplice to “Get the gun out” (ibid., at para. 25 (emphasis added)).

8                                   All four intruders fled the home approximately five minutes after their arrival.

9                                   The Reids made two 911 calls, one while the intruders were still in the house and a second, two minutes later, after the intruders had left.  They gave general descriptions of the intruders and provided a good description of the getaway car.  Approximately four minutes after the second 911 call, the police intercepted a vehicle matching the description of the getaway car.  Four individuals, including the appellant and his girlfriend, were inside.  They were all arrested.

10                               The police then searched the car and found several weapons, including hammers, a crowbar, a kitchen knife, a machete, a silver knife with brass knuckles and — “most importantly”, said the trial judge — a loaded handgun under the driver’s seat.

11                               The appellant was charged with attempted break and enter on October 21 and with breaking and entering on October 30.  In respect of the latter incident, he was charged as well with a number of firearms offences.  We are concerned here with only one: using a firearm while committing or attempting to commit the indictable offence of break and enter, contrary to s. 85(1)  of the Criminal Code .

12                               The trial judge found the appellant guilty on all counts.

13                               Mr. Steele appealed to the British Columbia Court of Appeal against each of the convictions.  He contended that the trial judge should have severed the count for attempted break and enter on October 21 from the counts concerning the break and enter on October 30.  He submitted as well, in essence, that the convictions on each of the other charges rested on insufficient evidence and were therefore unreasonable verdicts.

14                               The Court of Appeal unanimously dismissed Mr. Steele’s appeal to that court: (2006), 223 B.C.A.C. 154, 2006 BCCA 114.  Huddart J.A., writing for the court, found no proper basis for setting aside any of the convictions entered at trial.  The only real issue, in her view, related to Mr. Steele’s conviction under s. 85(1)  of the Criminal Code .  And that issue was “whether the trial judge erred in relying on the ‘most logical inference’ from the facts she found, that the appellant and three other intruders ‘used’ the gun in committing the indictable offence of breaking and entering a dwelling-house” (para. 18).

15                               In that regard, Huddart J.A. held that “possession of a firearm becomes use under s. 85  of the Criminal Code  when its use is threatened” (para. 25).  In the absence of binding authority, she was attracted to the expression “proximate for future use” as “an expression that connotes a sufficiently nearby presence to be available to carry out the threat implicit in the reference to the gun by the intruders” (para. 34).  She found that the loaded handgun later seized in the getaway car was either in the physical possession of one of the intruders while they were still in the house or in the car immediately outside the house.  In either case, said Huddart J.A., “there was sufficient evidence of proximity or nearby presence” to support the trial judge’s guilty verdict under s. 85(1)  (para. 36).

16                               In this Court, Mr. Steele appeals his conviction on that count only.

                                                                            III

17                               Section 85(1)  of the Criminal Code  provides:

85. (1)  Every person commits an offence who uses a firearm

(a) while committing an indictable offence, other than an offence under section 220 (criminal negligence causing death), 236 (manslaughter), 239 (attempted murder), 244 (causing bodily harm with intent — firearm), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), subsection 279(1) (kidnapping) or section 279.1 (hostage‑taking), 344 (robbery) or 346 (extortion),

(b) while attempting to commit an indictable offence, or

(c) during flight after committing or attempting to commit an indictable offence,

whether or not the person causes or means to cause bodily harm to any person as a result of using the firearm.

18                               Section 85(1) was enacted in 1977 as part of a comprehensive “gun control” legislative scheme that was aimed at curtailing the proliferation of firearm-related crime: R.S.C. 1970, c. C-34, s. 83(1) (rep. & sub. S.C. 1976-77, c. 53, s. 3); McGuigan v. The Queen, [1982] 1 S.C.R. 284, at pp. 316-17; Krug v. The Queen, [1985] 2 S.C.R. 255, at p. 267. For first-time offenders, it carries a mandatory minimum sentence of imprisonment for one year, to be served consecutively to any other sentence imposed for the predicate offence.

19                               It is well established that Parliament’s objective in enacting this provision was to prevent the danger of serious injury or death associated with the use of firearms: R. v. Covin, [1983] 1 S.C.R. 725, at p. 729; Krug, at p. 267; R. v. Langevin (1979), 47 C.C.C. (2d) 138 (Ont. C.A.), at p. 146; McGuigan, at p. 313.

20                               The Crown submits that s. 85  serves a second purpose as well: the prevention of victim intimidation and alarm.  This view finds support in McGuigan, at p. 319; Langevin, at p. 146; R. v. Belair (1981), 24 C.R. (3d) 133 (Ont. C.A.), at p. 136; R. v. Scott (2000), 145 C.C.C. (3d) 52 (B.C.C.A.), per Braidwood J.A., at para. 43, aff’d on other grounds, [2001] 3 S.C.R. 425, 2001 SCC 73.

21                               It is true that the Court, in Covin, expressly rejected the prevention of alarm objective.  Imitation firearms, said the Court, were no less alarming or intimidating than real ones.  Since Parliament had chosen not to target the use of imitation firearms, the prevention of alarm and intimidation could not have been contemplated by Parliament as an objective of s. 85  (Covin, at p. 729).

22                               But Covin predated Scott, and Parliament in the interim amended s. 85  to include the use of imitation firearms.  The Crown contends that this amendment was a legislative response to Covin, expressing Parliament’s intention to include the prevention of victim alarm and psychological trauma as underlying objectives of s. 85 , which must be read globally.

23                               I find this submission persuasive. The use of a firearm in the commission of a crime exacerbates its terrorizing effects, whether the firearm is real or a mere imitation.  Indeed, they share that very purpose.

24                               With respect to both imitation and operational weapons, the meaning of “uses a firearm” in s. 85  is informed by case law under its predecessors. 

25                               In McGuigan, for example, the central issue was whether R. v. Quon, [1948] S.C.R. 508, continued to apply despite the material differences between what was then s. 122(1)  of the Criminal Code  and its successor, s. 83(1)  (now, in substance, s. 85 ).  Section 122(1)  provided that “[e]very one who has upon his person a rifle, shotgun, pistol, revolver or any firearm capable of being concealed upon the person while committing any criminal offence is guilty of an offence” and subject to a minimum of two years’ imprisonment in addition to any penalty imposed for the underlying offence.  Writing for the majority, Dickson J. (as he then was) explained that s. 83(1)  was more narrowly phrased than s. 122(1)  to underscore its concern with the actual use of a firearm, as opposed to its mere physical possession, which sufficed to support a conviction under s. 122(1)  (pp. 317-18). 

26                               Three years later, in Krug, at p. 263, the Court held that possession alone could not support a conviction under s. 85 .  And it has at least since then been settled law that carrying a concealed weapon while committing an offence is not “using” a firearm within the meaning of s. 85(1) : R. v. Chang (1989), 50 C.C.C. (3d) 413 (B.C.C.A.); R. v. Gagnon (1995), 86 O.A.C. 381.

27                               “Use” has been held to include discharging a firearm (R. v. Switzer (1987), 32 C.C.C. (3d) 303 (Alta. C.A.)), pointing a firearm (R. v. Griffin (1996), 111 C.C.C. (3d) 567 (B.C.C.A.)), “pulling out a firearm which the offender has upon his person and holding it in his hand to intimidate another” (Langevin, at p. 145, citing Rowe v. The King, [1951] S.C.R. 713, at p. 717; see also Krug, at p. 265), and displaying a firearm for the purpose of intimidation (R. v. Neufeld, [1984] O.J. No. 1747 (QL) (C.A.)).  In Gagnon, the court indicated in passing that “use of firearm” may include revealing its presence by word or deed.

28                               It is thus settled law that use and mere possession (or “being armed”) are not synonymous.  But courts have almost invariably determined on a case-by-case basis whether the conduct alleged in each instance amounted to use of the firearm in question.  They cannot be said to have articulated a principled test that fully captures the type of conduct that rises to the level of “use” within the meaning of s. 85(1) .

29                               The judgment of the British Columbia Court of Appeal in Chang, however, does shed some light on the nature of the distinction between use and mere possession in this context.  In concurring reasons, Carrothers J.A. held in Chang that “uses” within the meaning of s. 85(1)  “bears the clear connotation of the actual carrying into action, operation or effect”, which is to be distinguished from being armed or possessing a firearm which “connote merely a latent capability of ‘use’, rather than actual ‘use’” (p. 422).

30                               The U.S. Supreme Court reached a like conclusion in Bailey v. United States, 516 U.S. 137 (1995), which concerned the meaning of “use” in § 924(c)(1) of 18 U.S.C. — a provision similar to s. 85(1)  of the Criminal Code .  Speaking for the court in Bailey, Justice O’Connor found that “use” requires more than mere possession and that evidence of proximity and accessibility of a firearm was insufficient to support a conviction for its use under the statute.  To establish use, she stated, “the Government must show active employment of the firearm” (p. 144 (emphasis added)).  She later stated:

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 the 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.” [p. 148]

31                               These observations are entirely consistent with the ordinary and accepted meaning of “use”.  And the Court has recognized that the ordinary meaning of “use” (or “utilise”, in the corresponding French version of a statute) can be discerned from its dictionary definitions in both languages.  In determining the meaning of utiliser, albeit in a different context, the Court adopted its definition in the Petit Robert, which includes [translation] “render useful [or] employ for a specific purpose” (Veilleux v. Quebec (Commission de protection du territoire agricole), [1989] 1 S.C.R. 839, at p. 854).  This definition, the Court found, “implies both the idea of activity and the idea of an ultimate purpose”.  Similarly, the Canadian Oxford Dictionary (2nd ed. 2004) defines “use” as “employ (something) for a particular purpose . . . [or] exploit (a person or thing) for one’s own ends”.  Likewise, according to Black’s Law Dictionary (6th ed. 1990), “use” means “make use of; to convert to one’s service; to employ; to avail oneself of; to utilize; to carry out a purpose or action by means of; to put into action or service, especially to attain an end” (emphasis added).

32                               In the absence of a statutory definition, I would therefore hold that an offender “uses” a firearm, within the meaning of s. 85(1) , where, to facilitate the commission of an offence or for purposes of escape, the offender reveals by words or conduct the actual presence or immediate availability of a firearm.  The weapon must then be in the physical possession of the offender or readily at hand. 

33                               Where two or more offenders are acting in concert, the usual rules of complicity apply: McGuigan, at pp. 307-8.  It will therefore be sufficient, where one of the offenders is in physical possession of a firearm or has immediate access to it, for another to utter the firearm-related threat.

34                               In my view, this understanding of “use” reflects the two underlying purposes of s. 85 .  As we have seen, moreover, the U.S. Supreme Court in Bailey adopted a similar “active employment” test in a similar statutory context.

35                               I take care to add that this test does not bring within s. 85(1) of the Criminal Code any threat — including an idle threat — that refers to a firearm.  Use, at least in this regard, is a matter of fact, not fiction.  Section 85(1) does not capture the threatened use of a non-existent firearm.  However effective and objectionable, it is the threat in that case that is “used”, and not a firearm.  Moreover, had Parliament intended to capture  idle threats under s. 85(1), it would have said so expressly, as it did in ss. 267  and 272  of the Criminal Code .

36                               And finally, on this branch of the matter, a brief word on the approach adopted by the Court of Appeal.  In affirming the appellant’s conviction, the court found in this case that the requirement of “use” under s. 85(1) is satisfied by evidence that the weapon was “proximate for future use”. 

37                               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.

IV

38                               In this case, while committing the break and enter, the intruders referred repeatedly to a firearm in their physical possession or readily at hand.  And they did so to facilitate the commission of that offence.  They therefore employed the weapon actively, or “used” it, within the meaning of s. 85(1)  of the Criminal Code .

39                               The appellant concedes that active employment of a firearm includes an oral reference to it, but submits that one must also be armed with that weapon to be convicted under s. 85(1) .  He argues, however, that no firearm was found to have been brought into the home, and he urges us for that reason to quash his conviction under s. 85(1)  and to enter an acquittal instead.

40                               On the record before us, this assertion fails.  The trial judge did not expressly explain in her reasons, which were delivered orally, her understanding of the word “use” in s. 85(1) .  But the basis of her conclusion is nonetheless clear from her reasons, read as a whole and in the light of the submissions of counsel.  The trial judge was evidently satisfied that the firearm later seized in the getaway car was brought into the Reid home by one of the intruders, and remained in the physical possession of that intruder, or another, during the break and enter.

41                               I turn first to the submissions of counsel.  The appellant’s guilt on the count under s. 85(1)  was made by both sides to depend entirely on whether the prosecution had established beyond a reasonable doubt that the gun was brought into the dwelling-house. Defence counsel acknowledged that there was evidence that gun use was threatened, but submitted that there was no evidence establishing that a gun had been brought into the home by any of the intruders; Crown counsel, on the other hand, argued that a conviction should be entered because the evidence proved beyond a reasonable doubt that the gun was indeed brought into the home to the knowledge of the appellant.

42                               Faced with these conflicting positions on the only live issue, the trial judge expressly agreed “with the Crown that the four individuals formed a common intention to carry out a break and enter and that there was a gun involved to the knowledge of all four” (para. 56 (emphasis added)).  She rested this conclusion largely on the number and nature of the intruders’ references to their gun and on its discovery in their getaway car within minutes after they had fled. 

43                               Read in this context, the reasons of the trial judge make plain that she contemplated and rejected the possibility that the gun had been left in the getaway car by the appellant and his accomplices.  Had the trial judge instead thought that the requisite element of “use” had been made out by the mere presence of the weapon in the nearby car, she would hardly have found it necessary to explain or infer such use in view of the direct and incontrovertible evidence to that effect.  Yet, that is what she felt bound to do — not necessarily because she thought the presence of the gun in the car failed to establish its use during the break and enter, but because its presence in the house necessarily did.  And in that regard, the trial judge committed no reviewable error of fact and she was certainly correct in law.

44                               Subsidiarily, we are urged by the appellant to conclude, if we are satisfied that the trial judge did find that the gun was brought into the house, that she misapprehended the Crown’s burden of proof in deciding as she did.  Instead of applying the correct standard — proof beyond a reasonable doubt — the trial judge rested her conclusion, according to the appellant, on the less demanding standards of “most reasonable inference” and “most logical explanation”.

45                               This submission, like the first, fails on a fair reading of the trial judge’s reasons as a whole.  It is true that she referred to the “most logical explanation” and “most reasonable inference”.  But she did so in evaluating the competing submissions of counsel which I have already mentioned. 

46                               Essentially, the trial judge was invited by counsel to rest her decision on whether she was persuaded beyond a reasonable doubt that the intruders had brought their gun into the house.  The language she used in making this determination does invite scrutiny, but I am satisfied after considering it carefully that it was merely intended to signify that the trial judge agreed with the Crown and not with the defence. 

47                               As noted earlier, she said so expressly, and I cannot reconcile this explicit statement with the appellant’s submission that the trial judge mistakenly thought that the Crown needed only to establish that guilt was the most reasonable inference.  The Crown never said that, and the trial judge, in agreeing with the Crown, cannot be understood to have thought that.  On the contrary, the Crown set out its burden of proof impeccably and the trial judge, in concluding that the Crown had in fact discharged its burden, cannot have had a different and lesser burden in mind.

48                               Any residual concern in this regard is in my view dissipated by the fact that the trial judge, dealing with the attempted break and enter, earlier set out correctly the applicable burden in these terms: “the circumstantial evidence is consistent with guilt and there is no other reasonable inference that could be drawn” (para. 16).  She again set out the applicable standard later in her reasons, when she stated specifically that she was satisfied beyond a reasonable doubt of the appellant’s guilt with respect to all other charges (para. 59).

49                               Finally, the appellant submits, in effect, that the trial judge made an overriding and palpable error in concluding on the strength of insufficient evidence that the firearm was used in committing the break and enter — and that the appellant’s conviction under s. 85(1)  therefore amounts to an unreasonable verdict.

50                               In determining whether a trial judge’s verdict is reasonable, an appellate court cannot substitute its own view of the facts for that of the judge.  Accordingly, the question is not whether we would have drawn the inference that the gun was brought into the house, but rather whether that inference drawn by the trial judge, was reasonably supported by the evidence before her.  In my view, it was.

51                               While in the Reid home, the intruders referred repeatedly to the fact that they had a gun — “We have a gun” said one intruder, “Get the gun out” said another — and a gun was indeed found minutes later underneath the driver’s seat in the getaway car.  They thought they were breaking into a marijuana grow operation, with all of its attendant risks.  They hoped to find it unguarded but, before entering, armed themselves nonetheless with a hammer.  It “defies logic”, as the Crown says, to conclude that the intruders left behind in the car the loaded gun they had brought with them in setting out on their risky criminal adventure.

52                               I do not think it unreasonable to infer from these facts and from the attendant circumstances that the intruders brought the gun with them into the home and that it was in the physical possession of one of them, to the knowledge of all, during the commission of the break and enter.  I thus see 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.

53                               I attach no importance to the absence of a finding that the appellant personally brought the gun into the house, or physically possessed it, or personally uttered the threats.  In McGuigan, the Court held that s. 21  of the Criminal Code  applies to s. 85(1)  (pp. 307-8).  Given the trial judge’s finding that “the four individuals formed a common intention to carry out a break and enter and that there was a gun involved to the knowledge of all four” (para. 56 (emphasis added)), the appellant is clearly a party to the s. 85(1)  offence committed in concert by the four intruders.

V

54                               I conclude with this observation.

55                               We are dealing in this case with a break and enter committed by several intruders acting in concert.  Even if they had left their charged firearm in the getaway car when they entered the Reid home, any one of them could easily have slipped away momentarily to retrieve it from the car, parked just outside, without interrupting the commission of the offence.

56                               In these circumstances, applying the test I have set out, the trial judge could have properly concluded that the intruders used the firearm, within the meaning of s. 85(1)  of the Criminal Code , even if they did not have it in their physical possession while in the Reid home.

57                               As I have mentioned, however, the trial judge was not asked by the Crown to convict the appellant on that basis.  Understandably, and quite properly, she convicted him instead on the case as pleaded before her and for the reasons set out in her judgment. 

58                               It is therefore unnecessary to consider whether the appellant could have been found guilty on a different basis as well.

VI

59                               For all of these reasons, I would affirm the appellant’s conviction under s. 85(1)  of the Criminal Code  and dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant:  Rankin & Bond, Vancouver.

Solicitor for the respondent:  Attorney General of British Columbia, Vancouver.

Solicitor for the intervener:  Attorney General of Ontario, Toronto.