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Offender can 'use' a handgun even without carrying one, top court rules
B.C. man loses appeal to have firearms conviction overturned

Last Updated: Friday, July 20, 2007 | 2:46 PM ET
CBC News

http://www.cbc.ca/canada/story/2007/07/20/guns-use.html

Threatening someone with a gun may be enough to warrant being charged with a firearms offence, even if one isn't being carried, Canada's top court ruled Friday.

In a unanimous ruling, the nine-member Supreme Court of Canada upheld a court decision in B.C. that convicted a man of gun possession, even though he argued he never had the weapon on him during a break-in four years ago.

It didn't matter whether 25-year-old Andre Omar Steele or his three accomplices carried a gun during the crime, the top court said.

An offender "uses" a firearm when he or she makes it known "by words or conduct" that it is available, and as long as it is on the body or readily available, Justice Morris Fish wrote.

"They [the four B.C. men] repeatedly referred to a firearm in their physical possession or readily at hand in order to facilitate the … offence of break and enter," the ruling said.

Steele was convicted of an October 2003 break-in at a B.C. residence mistaken for a marijuana grow operation.

According to court documents, Steele and three accomplices warned the residents inside, "We have a gun," and repeatedly told one another to "Get the gun, get the gun."

At one point, one of the men pulled a dark metal object from his inside jacket that was described by the victims as "about the size of a gun."

The four men fled minutes later, but police stopped their getaway car shortly after and found several weapons, including a loaded handgun under the driver's seat.

The judge in the original trial concluded all four men knew a gun was involved.

The B.C. Court of Appeal upheld Steele's conviction and the Supreme Court of Canada agreed, saying the point of gun laws is to reduce crimes, either through intimidation or actual injury.

If a gun was nearby and accessible quickly, then whether or not it was on the criminals was irrelevant, said the ruling Friday from Ottawa.