Use or Possession of Explosives (Offence)

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Use or Possession of Explosives
s. 80, 81, 82 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
Indictable Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum None
Maximum 5, 14 or life incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to use or possession of explosives are found in Part II of the Criminal Code relating to "Offences Against Public Order".

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 80(a) [breach of duty, risk of death]
s. 80(b) [breach of duty, risk of bodily harm]
s. 81(2)(a) [using explosives, risk death],
s. 81(2)(b) [using explosives, risk harm],
s. 82(1) [possession without lawful excuse] and,
s. 82(2) [possession without lawful excuse, crim. org.]
Indictable Offence(s) N/A Yes

Offences under s. 80, 81, 82 are straight indictable. There is a Defence election of Court under s. 536(2).

Section 727 notice prior to plea is required if Crown is relying upon increased duration on a subsequent s. 109 weapons prohibition order.

Release
When charged under s. 80, 81, 82(2), the accused cannot be released by police under s. 497 or 498 and so must be held by police when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by an order of a judge or justice under s. 515. A youth will be subject to a maximum penalty of 3 years under s. 42(15) of the YCJA and can be given an attendance notice without arrest under s. 496 or a summons and if arrested, can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The youth can also be released by a justice under s. 515.

When charged under s. 82(1), the accused cannot be given an attendance notice or a summons without arrest, nor can he be released by an arresting officer. He can be released by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515. A youth will be subject to a maximum penalty of 3 years under s. 42(15) of the YCJA and can be given an attendance notice without arrest under s. 496 or a summons and if arrested, can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The youth can also be released by a justice under s. 515.

Publication Bans
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offences under s. 80, 81, and 82 are designated offences eligible for wiretap under s. 183.

Offences under s. 81(1)(a) and (b) are "designated" offences under s. 752 for the purpose of dangerous offender applications.

Offences under s. 80, 81, and 82 are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Duty of care re explosive
79 Every one who has an explosive substance in his possession or under his care or control is under a legal duty to use reasonable care to prevent bodily harm or death to persons or damage to property by that explosive substance.
R.S., c. C-34, s. 77.


Breach of duty
80. Every one who, being under a legal duty within the meaning of section 79, fails without lawful excuse to perform that duty, is guilty of an indictable offence and, if as a result an explosion of an explosive substance occurs that

(a) causes death or is likely to cause death to any person, is liable to imprisonment for life; or
(b) causes bodily harm or damage to property or is likely to cause bodily harm or damage to property, is liable to imprisonment for a term not exceeding fourteen years.

R.S., c. C-34, s. 78.


CCC

Using explosives
81. (1) Every one commits an offence who

(a) does anything with intent to cause an explosion of an explosive substance that is likely to cause serious bodily harm or death to persons or is likely to cause serious damage to property;
(b) with intent to do bodily harm to any person
(i) causes an explosive substance to explode,
(ii) sends or delivers to a person or causes a person to take or receive an explosive substance or any other dangerous substance or thing, or
(iii) places or throws anywhere or at or on a person a corrosive fluid, explosive substance or any other dangerous substance or thing;
(c) with intent to destroy or damage property without lawful excuse, places or throws an explosive substance anywhere; or
(d) makes or has in his possession or has under his care or control any explosive substance with intent thereby
(i) to endanger life or to cause serious damage to property, or
(ii) to enable another person to endanger life or to cause serious damage to property.

Punishment
(2) Every one who commits an offence under subsection (1) is guilty of an indictable offence and liable

(a) for an offence under paragraph (1)(a) or (b), to imprisonment for life; or
(b) for an offence under paragraph (1)(c) or (d), to imprisonment for a term not exceeding fourteen years.

R.S., c. C-34, s. 79.


CCC

Possession without lawful excuse
82. (1) Every person who, without lawful excuse, the proof of which lies on the person, makes or has in the possession or under the care or control of the person any explosive substance is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Possession in association with criminal organization
(2) Every person who, without lawful excuse, the proof of which lies on the person, makes or has in the possession or under the care or control of the person any explosive substance for the benefit of, at the direction of or in association with a criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., 1985, c. C-46, s. 82; R.S., 1985, c. 27 (1st Supp.), s. 12; 1997, c. 23, s. 2; 2001, c. 32, s. 3(F).


CCC

Proof of the Offence

Proving breach of duty re explosives under s. 80 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit possesses a thing or has it "under his care or control";
  5. the thing is an "explosive substance";
  6. the culprit fails to perform his duty to "use reasonable care to prevent bodily harm or death to persons or damage to property by that explosive substance"
  7. the culprit has no "lawful excuse";
  8. the result of the breach causes an explosion;
  9. the explosion either:
    1. "causes death or is likely to cause death to any person, is liable to imprisonment for life;" or
    2. "causes bodily harm or damage to property or is likely to cause bodily harm or damage to property, is liable to imprisonment for a term not exceeding fourteen years."

Proving using explosives under s. 81(a) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit does anything;
  5. the culprit does the act "with intent to cause explosion of an explosive substance";
  6. the substance "is likely to cause serious bodily harm or death to persons or is likely to cause serious damage to property"

Proving using explosives under s. 81(b) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit has "intent to do bodily harm to any person";
  5. the culprit either:
    1. "causes an explosive substances to explode"
    2. "sends or delivers to a person or causes a person to take or receive an explosive substance or any other dangerous substance or thing", or
    3. "places or throws anywhere or at or on a person a corrosive fluid, explosive substance or any other dangerous substance or thing";

Proving using explosives under s. 81(c) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit has "intent to destroy or damage property";
  5. the culprit "places or throws an explosive substance anywhere"; and
  6. the culprit has no "lawful excuse".

Proving using explosives under s. 81(d) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "makes or has in his possession or has under his care or control" a thing;
  5. the thing is "any explosive substance";
  6. the culrpit has "intent thereby"
    1. "to endanger life or to cause serious damage to property," or
    2. "to enable another person to endanger life or to cause serious damage to property."

Proving possession without lawful excuse under s. 82(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "makes or has in the possession or under the care or control of the person" a thing
  5. the thing is an "explosive substance";
  6. the culprit has no "lawful excuse".

Proving possession in association with criminal organization under s. 82(2) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "makes or has in the possession or under the care or control of the person" a thing;
  5. it is " for the benefit of, at the direction of or in association with a criminal organization";
  6. the thing is an "explosive substance"; and
  7. the culprit has no "lawful excuse".

Interpretation of the Offence

Section 81(1)(a) "does not relate to mere possession of an explosive but rather to any act, whether passive or active, which is done with the intent to cause an explosion ... that is likely to cause serious damage to property". [1]

Lawful Excuse
Possession for the purpose of making a "loud noise" with no intention to destroy property or injure anyone is not a lawful excuse.[2]

  1. R v Musitano, 1985 CanLII 1983 (ON CA)
  2. R v Malang, 1982 CanLII 2029 (ON CA) per Howland CJO

Misc Definitions

"Bomb" and "Grenade"
The words "bomb" and "grenade" are to be given "it's ordinary meaning".[1]

"explosive substance"

s. 2
...
“explosive substance” includes

(a) anything intended to be used to make an explosive substance,
(b) anything, or any part thereof, used or intended to be used, or adapted to cause, or to aid in causing an explosion in or with an explosive substance, and
(c) an incendiary grenade, fire bomb, molotov cocktail or other similar incendiary substance or device and a delaying mechanism or other thing intended for use in connection with such a substance or device;

...
R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; ... ; 2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15.


CCC

Whether or not a device functions properly to satisfy the definition of explosive substances under s. 2.[2]

  1. Musitano
  2. R v K.D.S.A., 2010 NBCA 24 (CanLII), at para 21

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Maximum Penalties
Offences under s. 80(a) or 81(2)(a) are straight indictable. The maximum penalty is life. Offences under s. 80(b), 81(2)(b), or 82(2) are straight indictable. The maximum penalty is 14 years incarceration. Offences under s. 82(1) are straight indictable. The maximum penalty is 5 years incarceration.

Minimum Penalties
These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 80, 81, or 82(2) any X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

If convicted under s. 80, 81, or 82(2) a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".

Offences under s. 80, 81, or 82(2) are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.

Consecutive Sentences

Where the accused is convicted under s. 82(2), the sentence must be consecutive.

Sentences to be served consecutively
82.1 A sentence imposed on a person for an offence under subsection 82(2) shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is imposed on the person for an offence under subsection 82(2).
1997, c. 23, s. 2.


CCC

Principles

Ranges

see also: Use or Possession of Explosives (Sentencing Cases)

Ancillary Sentencing Orders

Offence-related Orders

Order Conviction Description
DNA Orders s. 81(1)(a), (b), (c), or (d), 82(1) or (2)
  • For offences under s. 81(1)(a), (b), (c), or (d), as listed under s. 487.04(a.1) to (c.01), (c.03) or (d), a DNA Order is a presumptive mandatory order as a primary designated offence under s. 487.051(2), but the judge may exempt the offender if it is established that "the impact of such an order on their privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders."
  • For conviction under s. 80(a) or (b), or 82(1) or (2), a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).
Weapons Prohibition Orders s. 80, 81, 82
  • On conviction under s. 80(a), (b), 81(1)(a), (b), (c) or (d) where "violence against a person was used, threatened or attempted", and punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a) or where "violence was used, threatened or attempted against" an enumerated party relating to a domestic partnership a weapons prohibition order is mandatory under s. 109(1)(a.1).The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
  • For offences under s. 80, 81, or 82 where "the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance and, at the time of the offence, the person was prohibited" by court order, a mandatory weapons prohibition order under s. 109(1)(d) is required regardless of election.The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
Delayed Parole Order s. 81(1)(a), (b), or (d), or 81(2)(a)
  • Periods of imprisonment of 2 years or more for convictions under s. 81(1)(a), (b), or (d), or 81(2)(a) are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".

Generally Available Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).

General Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(!) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

See Also