|This page was last substantively updated or reviewed January 2020. (Rev. # 86083)|
|Use or Possession of Explosives|
|s. 80, 81, 82 of the Crim. Code|
|Election / Plea|
Sup. Court w/ Jury (*)
|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. 81(1)(a) [using explosives, risk death], and
s. 81(1)(b) [using explosives, risk harm]
|Indictable Offence(s)||(life max)|
|s. 80(b) [breach of duty, risk of bodily harm],
s. 81(1)(c) [using explosives, risk death],
s. 81(2)(d) [using explosives, risk harm] and,
s. 82(2) [possession without lawful excuse, crim. org.]
|Indictable Offence(s)||(14 years max)|
|s. 82(1) [possession without lawful excuse]||Indictable Offence(s)||(under 14 years max)|
by Peace Officer
by Judge or Justice
s. 508(1), 512(1), or 788
s. 498, 499, and 501
a Judge or Justice
on a Release Order
s. 515 to 519
|Direct to Attend |
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
|s. 80(a), 80(b), 81(2)(a), 81(2)(b), and 82(2)|
When charged under s. 80(a), 80(b), 81(2)(a), 81(2)(b), 82(2), the accused can be given a judicial summons without arrest. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515. When charged under s. 82(1), the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
- Publication Bans
For all criminal or regulatory prosecutions, 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
|AG Consent Required||Serious Criminality|
s. 36 IRPA
|s. 82(1)||(under 14 years max)|
|s. 82(2)||(under 14 years max)|
Offences under s. 80, 81, and 82 are designated offences eligible for wiretap under s. 183.
Offences under s. 81(2)(a) and (b) are "designated" offences under s. 752 for 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.
Draft Form of Charges
|"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"AND FURTHER at the same time and place aforesaid, he [or she]..."|
|Code Section||Subject of Offence||Draft Wording|
|80||"..., being a person who has an explosive substance in his possession or under his care or control, did fail without lawful excuse to perform that duty to use reasonable care to prevent bodily harm or death to persons [names] or damage to property [describe property] by that explosive substance contrary to section 80 of the Criminal Code."|
|81||"..., contrary to section 81 of the Criminal Code."|
|82(1)||poss'n of explosive substance w/out lawful excuse||"..., without lawful excuse, did make, have in his or her possession or have under his or her care or control an explosive subtances, to wit: [particulars], contrary to section 82(1) of the Criminal Code."|
|82(2)||crim org and explosive substances||"..., without lawful excuse, did make, have in his or her possession or have under his or her care or control an explosive substance for the benefit of or at the direction of or in association with a criminal organization, to wit: [particulars], contrary to section 82(2) of the Criminal Code."|
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."
- 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.
- "Bomb" and "Grenade"
The words "bomb" and "grenade" are to be given "it's ordinary meaning".
Whether or not a device functions properly (ie. being capable of exploding) to satisfy the definition of explosive substances under s. 2. Even faulty improvised explosives will be captured by s. 2(b) and (c) of the defition.
Participation of Third Parties
- 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
s. 606(4.1) [SPIO]
for Interest in Agreement
s. 606(4.2) [5+ years]
|Victim Notice |
of Impact Statement
|s. 80(a) or 81(2)(a) [breach of duty, risk of death]|
|s. 82(1) [possession without lawful excuse]|
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
- Maximum Penalties
Offences under s. 80(a) or 81(2)(a) are straight indictable. The maximum penalty is life incarceration. 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
s. 718.3, 787
|s. 80 [breach of duty re explosives], 81 [using explosives], or 82(2) [possession without lawful excuse, crim. org.]||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.
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 the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.|
|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(1) 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. NB: does not apply to summary offences.|
Record Suspensions and Pardons
Convictions under s. 80 and 81, and 82 are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".
Prior to December 13, 2018, s. 82 read:
- Explosives offence re public or government facility (s. 431.2(2))