The phrase “improvised explosive device” doesn’t appear anywhere in the Criminal Code, and when most Canadians hear the infamous acronym IED they think of Kandahar—not the Maritimes. But when a 14-year-old New Brunswick boy walked into his high school with a spice bottle full of “the blue stuff from the Dollar Store that you throw on a fire,” that’s what the authorities dubbed his pocket-sized concoction: an improvised explosive device.
There was only one problem. His IED was a dud. No matter how hard the cops tried, the teenager’s YouTube-inspired brew of lighter fluid, green duct tape and sparkler parts just wouldn’t blow up. There was a “very intense fire,” according to one officer who tested the mixture—but no explosion.
The boy’s defective device did leave quite an impact, though. It triggered a landmark legal battle that forced the courts to consider the kind of question that would make any defence lawyer proud: is a bomb really a bomb if it doesn’t blow up?
The Woodstock boy, who cannot be named because of his young age, was charged with unlawful possession of an explosive substance, a crime that carries a possible five-year prison term. In order to prove that offence, as per section 82(1) of the Code, prosecutors must put a name to the substance (ammonium nitrate, for example, or TNT). But the Crown’s label of choice—IED—did not impress the trial judge, Justice R. Leslie Jackson.
“The term ‘improvised explosive device’ conjures up images of homemade land mines or bombs that are used to injure and kill our troops in Afghanistan,” he said. “It is a term of common usage in the press these days but not one of precise definition. The common thread, however, is that there must be an explosion.” No kaboom, no conviction.
Prosecutors promptly appealed the ruling, not because they were particularly worried about the chemical exploits of a 14-year-old kid, but because of the potential precedent he left behind. If an aspiring terrorist—and not a troubled teenager—was arrested with his own lame excuse for an IED, is he free to go if the contraption fails to detonate? Does incompetence now equal innocence?
According to the New Brunswick Court of Appeal, the answer is a resounding no. In a unanimous judgment, the province’s high court has reversed the original acquittal and reinstated the charge. Why? Because the official Criminal Code definition of an explosive substance includes anything “incendiary” (i.e. used to start a fire), and the spice bottle did just that. Which means bang or no bang, it was still explosive in the eyes of the law.
“Nowhere in the definition does the Criminal Code require there to be an explosion,” wrote Justice Kathleen Quigg, speaking for the three-judge panel. “Whether or not the device functions properly should be of no consequence as to whether it meets the legal definition of ‘explosive substance.’ ” The decision is binding on all lower courts in New Brunswick—and very persuasive everywhere else. In other words, what could have been a dangerous loophole is now closed.
As for the anonymous high school student at the centre of the case, he is scheduled to appear back in court on June 16 to set a date for trial number two.