Possession of Explosive Without Lawful Excuse (s. 82(1)) Charges in Canada: Offences, Defences, Punishments

What is a possession of explosive without lawful excuse charge?

Possession of explosives without lawful excuse is covered under s. 82(1) of the Criminal Code found in Part II. Part II covers “Offences Against Public Order.”

A possession of explosive without lawful excuse charge occurs when a person has any explosive substance under their control. s. 2 of the Criminal Code states that an explosive substance includes anything intended to be used to make or aid with an explosive substance or 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.

Possession of explosive without lawful excuse is a hybrid offence with Crown election. This means that depending on the circumstances of your case, the Crown can elect to proceed by indictment or summarily. If an accused is prosecuted by indictment, there is a Defence election of court under s. 536(2.1) of the Criminal Code.

Examples

Some examples of a possession of explosive without lawful excuse charge may include the following:

• A person possesses sticks of dynamite to use for fun;
• A person possesses materials to create explosives;
• A person possesses a grenade taken from an army base; and
• A person creates and possesses a pipe bomb.

Defences

The defences available for a possession of explosive without lawful excuse charge are entirely dependent on the facts of your case.

However, some defences to a possession of explosive without lawful excuse charge may include:

• The accused had a lawful excuse to possess the explosive;
• The accused did not possess the particularized explosive;
• The accused did not intend to possess the explosive; and
• The accused did not have an explosive substance in their possession.

Punishments

A possession of explosive without lawful excuse charge is a hybrid offence, which entails a maximum punishment as follows:

• Imprisonment for a term not exceeding five years.

Punishments for a possession of explosive without lawful excuse charge depend on if the Crown elects to pursue the charge as an indictable offence or summarily. There are no mandatory minimum penalties for this offence. The maximum is no more than 5 years of incarceration if prosecuted by indictment. If prosecuted summarily, the maximum punishment is no more than 6 months of incarceration and/or a $5,000 fine.

A possession of explosives without lawful excuse charge also entail severe consequences for current and future employment opportunities and immigration status.

Overview of the Offence 

According to s. 82(1) of the Criminal Code:

The Guilty Act (Actus Reus)

The actus reus for a possession of explosive without lawful excuse charge under s.82(1) is established by proof, beyond a reasonable doubt, of the following:

• The accused possessed a substance, or had this substance under their control; and
• The substance possessed was an explosive substance.

The Guilty Mind (Mens Rea)

The mens rea for a possession of explosive without lawful excuse charge under s.82 includes proving, beyond a reasonable doubt, that:

• The accused knowingly possesses an explosive substance; and
• The accused had no lawful excuse for possessing an explosive substance.

Defences

How to Beat a Possession of Explosive Without Lawful Excuse 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 possession of explosive without lawful excuse charge:

Lawful Excuse

Section 82(1) specifies that there must be no lawful excuse for possessing the explosive substance to be found guilty. Once the Crown proves that a person possessed an explosive substance, the onus shifts to the accused to prove there was a lawful excuse to possess the substance. Therefore, if a person has a lawful excuse, the essential elements of the offence. A lawful excuse could include possessing the substance for work purposes for people who work in construction or scientific jobs or people in the military. For example, in R v Watson, 2016 CM 3006, the person had a lawful excuse to possess the explosive, as they were in the military, and forgot to return the explosive in their possession.

Particularized Explosive Substance

Though not required, the Crown may specify the particular explosive substance they accuse you of possessing. If they do so, the Crown must prove beyond a reasonable doubt that you possessed this particularized explosive beyond a reasonable doubt. If they fail to do so, the Crown may fail to prove the essential elements of the offence. In R v KDSA, 2009 NBPC 4, the Crown was required to prove that the explosive device was improvised, meaning a homemade device capable of exploding.

No Intention

To meet the essential elements of the offence, it is required that the accused intended to possess the explosive substance. Therefore, the Crown may be unable to prove all the elements to the offence if you had no intention of possessing the explosive substance. This may occur when someone places the substance in your possession without your knowledge, or when you forgot to return a explosive substance that you had a lawful excuse to possess. For example, in R v Watson, 2016 CM 3006 the person had a lawful excuse to possess the explosive, as they were in the military. This person forgot to return the explosive in their possession, and had no intention to possess it. Accordingly, they were found not guilty.

No Explosive in Possession

To prove the essential elements of the offence, the substance possessed must qualify as an explosive substance. Explosive substance is defined in section 2 of the Criminal Code and includes anything intended to be used to make or aid with an explosive substance or 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. If the Crown cannot prove that the substance in possession was an explosive substance, they will be unable to find you guilty of the offence. For example, in R v KDSA, 2009 NBPC 4, the device recovered was not capable of exploding. Therefore, this device was unable to qualify as an explosive substance.

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.

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 5 years for those convicted of a possession of explosives without lawful excuse charge. If the Crown proceeds 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 forgery of or uttering forged passport?

If you are found guilty of forgery of or uttering forged passport, you can go to jail. If the Crown proceeds by indictment, a forgery of or uttering forged passport charge carries a maximum sentence of no more than fourteen years in jail. There is no mandatory minimum for this offence. Therefore, there is a possibility that you can go to jail for a forgery of or uttering forged passport charge.

What is the maximum penalty for forgery of or uttering forged passport?

The maximum penalty for a possession of explosive without lawful excuse is no more than fourteen years imprisonment. This offence is indictable, meaning it is more serious than a summary conviction, in which the maximum sentence is 6 months imprisonment.

Is forgery of or uttering forged passport an indictable offence?

Forgery of or uttering forged passport is an indictable offence. This means that the Crown does not have the choice to elect this offence as a summary conviction, which has a lesser sentence. Since this offence is indictable, there is a longer term of imprisonment at risk, with the maximum sentence being no more than fourteen years imprisonment.

Published Decisions

Canadian Constitution Foundation v Attorney General of Canada, 2021 ONSC 1224

Though dealing with a different offence, this case interprets the mens rea requirements for a forgery of or uttering forged passport offence. This case specifies that both knowledge and intent are mens rea requirements for this offence, meaning that if an accused lacks one of these, the mens rea requirements of forgery of or uttering a forged passport cannot be met, and an accused would not be found guilty of this offence.

You can read the full decision here.

R v Berryman, 199 CanLII 286 (BCCA)

The accused was a passport officer who, on two occasions, accepted applicants for passports knowing that the information provided in these applications was false. As a result, the accused was charged with forgery of or uttering forged passport. At trial, the accused originally was found not guilty of forgery, as she did not physically make the passports themselves. However, on appeal it found that she still engaged in forgery by submitting the false documents, even if she did not make the passports herself.

You can read the full decision here.

R v Asipillai, 2015 ONSC 6881

The accused was waiting to pick up his father and brother at the airport. Border security had concerns regarding the validity of his brother’s permanent resident card, and asked the accused if he could obtain further documents to prove that his brother was indeed a permanent resident. The accused later provided three documents and provided them to border security. The documents appeared forged. In response, the accused was searched for items pertaining to passport forgery without being told the purpose for this search. Further, the accused was not given the opportunity to contact a lawyer. During a preliminary hearing it was found that the accused’s section 7, 8 and 10 Charter rights were violated, resulting in the evidence of the fake documents being inadmissible.

You can read the full decision here.

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