Use or Possession of Explosives (Offence)
|Use or Possession of Explosives|
|s. 80, 81, 82 of the Crim. Code|
|Election / Plea|
Sup. Court w/ Jury (*)
|Types of Release||Release by Officer, Officer-in-Charge, or Judge (varies on charge)|
|Maximum||5, 14 or life incarceration|
Offences relating to use or possession of explosives are found in Part II of the Criminal Code relating to "Offences Against Public Order".
|Crown Election|| Defence Election|
| 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.]
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.
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.
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.
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.
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.
(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.
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).
Proof of the Offence
Proving breach of duty re explosives under s. 80 should include:
Proving using explosives under s. 81(a) should include:
Proving using explosives under s. 81(b) should include:
Proving using explosives under s. 81(c) should include:
Proving using explosives under s. 81(d) should include:
Proving possession without lawful excuse under s. 82(1) should include:
Proving possession in association with criminal organization under s. 82(2) should include:
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". 
Possession for the purpose of making a "loud noise" with no intention to destroy property or injure anyone is not a lawful excuse.
"Bomb" and "Grenade"
The words "bomb" and "grenade" are to be given "it's ordinary meaning".
“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.
Whether or not a device functions properly to satisfy the definition of explosive substances under s. 2.
R v K.D.S.A., 2010 NBCA 24 (CanLII), at para 21
Participation of Third Parties
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
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.
These offences have no mandatory minimum penalties.
s. 718.3, 787
| Custody and
| Custody and
| Conditional |
|s. 80, 81, or 82(2)||any|
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.
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.
Ancillary Sentencing Orders
|DNA Orders||s. 81(1)(a), (b), (c), or (d), 82(1) or (2)||
|Weapons Prohibition Orders||s. 80, 81, 82||
|Delayed Parole Order||s. 81(1)(a), (b), or (d), or 81(2)(a)||
Generally Available Orders
|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 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.|