Offensive Volatile Substances (s 178) Charges in Canada: Offences, Defences, Punishments

What is an offensive volatile substances charge?

Offensive volatile substances are covered under s.178 of the Criminal Code found in Part V. Part V covers “Sexual Offences, Public Morals and Disorderly Conduct.” Offensive volatile substances are a summary offence. This offence was repealed in 2018.

An offensive volatile substances offence applies to everyone except a peace officer. This offence occurs when a person deposits, throws or injects an offensive volatile substance that could alarm, inconvenience, discommode or cause discomfort to people or damage to property. One example of this is a stench or stink bomb, which is given a separate section in 178(b), compared to (a) which refers to a substance more broadly. The term offensive volatile substances is not defined, as it is left to the discretion of the court to do so.

Examples

Some examples of offensive volatile substances may include the following:

• A person throwing a smoke bomb in public;
• A person spraying pepper spray into a crowd; or
• A person spraying tear gas into a crowd.

Defences

The defences available for an offensive volatile substance charge are entirely dependent on the facts of your case.

However, some defences to an offensive volatile substance charge may include:

• The accused is a police officer;
• The substance is not an offensive volatile substance;
• The substance was not intentionally used; and
• The accused was wrongly identified.

Punishments

An offensive volatile substance charge is a summary offence which entails a maximum punishment as follows:

• Imprisonment for a term not exceeding 6 months.

An offensive volatile substance charge can also entail severe consequences for current and future employment opportunities and immigration status.

Overview of the Offence 

According to s. 178 of the Criminal Code:

The Guilty Act (Actus Reus)

The actus reus for an offensive volatile substances charge under s.178 is established by proof, beyond a reasonable doubt, of the following:

• The accused is not a police officer engaged in the discharge of their duty;
• The accused possesses an offensive volatile substance, including, but not limited to, a stench or stink bomb;
• The accused deposits, throws or injects this volatile substance, or causes it to be deposited, thrown or injected; and
• The substance is likely to alarm, inconvenience, discommode or cause discomfort to a person or damage property.

The Guilty Mind (Mens Rea)

The mens rea for an offensive volatile substances charge under s.178 includes proving, beyond a reasonable doubt, that:

• The accused intentionally possessed and deposited an offensive volatile substance.

Defences

How to Beat an Offensive Volatile Substance Charge

Every case is different. The availability and strength of any defence depend entirely on the specific facts of your case. The strength of any available defence rests on the evidence against you and the precise details of the allegations. However, the following are some common defences that may be used when fighting a offensive volatile substances charge.

Accused is a Police Officer

One defence for an offensive volatile substances defence is that the accused is a police officer actively executing their duty. Police officers executing their duties are notably excluded from this offence, as they may be required to use offensive volatile substances for crowd control during events such as riots. Thus, if the accused can prove they are a police officer who was executing their duty at the time of the incident, the offence would be inapplicable to them. 

Identity

Depending on the circumstances of your case, a possible defence to a possession of explosives without lawful excuse charge may be to raise an identity defence. In this case, for this defence to be raised successfully, you will have to prove that you were not the person who possessed the explosive substance.

No Intention

Another defence for an offensive volatile substance charge is that the accused did not intend to possess and use the volatile substance. An offensive volatile substance charge requires that the accused intended to possess and apply a volatile substance. If the accused did not intend to possess or use the volatile substance, they would fail to meet this requirement and may be found not guilty of the offence.

Substance is not an Offensive Volatile Substance

The substances referred to in this section are offensive volatile substances. This term is not defined in the Criminal Code to give the courts the interpretation of this term in individual cases. However, we are given information as to what an offensive volatile substance is. s. 178 defined these substances as being likely to alarm, inconvenience, discommode or discomfort a person or cause damage to property. Further, a specific example, a stink bomb, is provided. Thus, if the accused can prove the substance in question in their case does not fall under this definition, this actus reus element would not be met.

Any Applicable Charter Defences

The Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s. 24(2) of the Charter.

Punishments

The Criminal Code provides for a possible maximum term of imprisonment of no more than 6 months for those convicted of a possession of explosives without lawful excuse charge. Since the Crown can only proceed summarily, the maximum punishment is no more than 6 months of incarceration and/or a $5,000 fine.

Persons found guilty of possession of explosives without lawful excuse are eligible for sentencing entailing a discharge, suspended sentence, stand-alone fine, custody, custody with a fine or probation or a conditional sentence order.

Frequently Asked Questions  

Can you go to jail for offensive volatile substances?

If you are found guilty of offensive volatile substance, you can go to jail. Offensive volatile substances is a summary offence with the maximum punishment is no more than 6 months of incarceration and/or a $5,000 fine. Therefore, there is a possibility that you can go to jail for an offensive volatile substances charge.

What is the maximum penalty for offensive volatile substances?

The maximum penalty for an offensive volatile substances charge will vary depending on the severity and circumstances of your case. Offensive volatile substances is a summary offence with the maximum punishment is no more than 6 months of incarceration and/or a $5,000 fine.

Is offensive volatile substances an indictable offence?

Possession of explosives without lawful excuse is a summary offence. This means that the Crown cannot choose to proceed by indictment. Since it is prosecuted summarily, the maximum punishment is no more than 6 months of incarceration and/or a $5,000 fine. Therefore, offensive volatile substances is not an indictable offence.

Published Decisions

R v Lazore, 2008 ONCJ 578

Lazore provides a list of offences and their maximum sentences. This case confirms that the maximum penalty for an offensive volatile substance offence is 6 months and that the maximum fine is $2,000.

You can read the full decision here.

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