Is a bomb really a bomb if it doesn’t blow up?

New Brunswick court case sparks a legal debate

Last winter, a 14-year-old boy in rural New Brunswick reached into his pocket and pulled out a homemade contraption: a small spice bottle with “what appeared to be the head of a sparkler sticking out the top.” To the untrained eye (in this case, a high school guidance counselor) the gadget looked a lot like a miniature bomb. The local police thought so, too, and after a brief investigation they charged the Woodstock student with unlawful possession of an explosive substance. The alleged substance? An “improvised explosive device.”

That specific term 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 in order to prove that a suspect actually possesses an explosive substance, as per section 82(1) of the Code, prosecutors must put a name to the compound (nitroglycerin, for example, or TNT). In this case, the Crown chose a catch-all phrase—“improvised explosive device”—to describe what was essentially a few drops of lighter fluid and a lot of tape.

In the end, the wording turned out to be the least of the prosecution’s problems. The explosive substance—improvised or not—was simply incapable of exploding. No matter how hard the cops tried (and boy, did they try) the concoction just wouldn’t blow up. “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,” said provincial court judge Leslie Jackson. “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.

The teenager, who cannot be named because of his tender age, was understandably relieved. He insisted all along that his finger-sized invention was a harmless science experiment, not a weapon. But this week, prosecutors took the surprising step of appealing the decision. The Crown isn’t necessarily worried that a mischievous 14-year-old slipped through their fingers, but they are concerned about the lingering legal precedent: Every time a person is charged with possessing an explosive substance, must the government now conduct a test to make sure the substance actually explodes? And if an aspiring terrorist—and not a troubled teenager—is arrested with his own version of an IED, is he innocent if the device turns out to be a dud? “A judge has ruled, apparently for the first time, that the offence is not made out unless it can be proven that the thing would actually have exploded,” says James Crocco, the boy’s lawyer. “The Crown doesn’t want this decision to stand, because in every case they would have to prove that what the person had was capable of exploding.”

That may sound like reasonable test. How, after all, can a person be charged with possessing an explosive if the explosive can’t explode? It seems just as ridiculous as charging someone with possessing marijuana if he’s holding a pack of DuMauriers. But until this student strolled into school that morning, the burden of proof was not so rigid. In 2005, for example, another teenager in Port Coquitlam, B.C., was found guilty of the same offence even though the item (a modified bottle rocket) did not detonate when tested by an RCMP expert. On the witness stand, the officer said that just because the doctored firecracker was stuffed with too much potassium nitrate for the fuse to ignite, it didn’t change the fact that the rocket was still an “improvised explosive device.” The judge agreed, and the teen was convicted. Justice Jackson reached the opposite conclusion: if the fuse can’t be lit, you must acquit.

His decision isn’t binding. Because it’s a lower court ruling, fellow judges are free to follow it or ignore it. But once an appeals court weighs in, the verdict will become the gold standard in New Brunswick—and very persuasive in every other province. The last thing the government wants is a legal loophole that allows an aspiring bomber to walk free because he was too incompetent to build a functional IED. Consider the potential scenario: if this judgment stands, future suspects would have the legal legs to mount the same defence for any explosive substance, from dynamite to gunpowder to fertilizer.

Take Lewis Casey, for example. The 18-year-old Saskatoon man, a university student who built a makeshift lab in his parents’ garage, was arrested in December and charged with the same Criminal Code offence as the Woodstock teenager. In his case, the alleged substance is ammonium nitrate, the infamous industrial fertilizer used to murder 168 people in the 1995 Oklahoma City bombing. Nick Stooshinoff, Casey’s lawyer, says his client is a “curious” and “intelligent” chemistry buff who had no intention of building a bomb, and he believes the New Brunswick ruling could have an impact on his trial. “We’re now in a position to argue: the Crown has particularized that ammonium nitrate is the explosive substance. Now prove it,” he says. “Ammonium nitrate is not going to explode on its own. What you have to do, at a minimum, is put it in a container and mix it with some sort of igniter or other volatile substance. To have it in a bag is not an explosive substance. It can be made into an explosive substance, but so can Mr. Clean, so can Comet, and so can icing sugar.”

That same logic could potentially apply to the “Toronto 18,” a group of young, radical Muslims accused of plotting jihad on Canadian soil. Police famously busted the group when a few of them allegedly tried to buy 3 tonnes of ammonium nitrate, and at least one suspect is accused of building a remote-controlled detonator. But what if the device doesn’t actually work? Could that be enough to warrant an acquittal? Probably not. The high-profile investigation generated millions of pages of complex evidence—from wiretaps to video surveillance to the testimony of confidential informants—and it’s unlikely that the verdict will hinge on whether a detonator does or does not function. But one thing appears certain: whether it’s an alleged terrorist or a disturbed student, prosecutors in New Brunswick don’t want to be blamed for giving defence lawyers that slim chance.

William Corby, the lead prosecutor in the district, declined to discuss the case when contacted by Maclean’s. “I am unable to comment because it is under appeal,” he said via email. In hindsight, though, Corby’s office may be regretting the fact that it pursued this charge in the first place. “This was a huge, big overreaction,” Crocco says. “There should have been some exercise in prosecutorial discretion. This kid never, ever intended to ever take a bomb to school. The real victim in all this is him.”

Indeed, some aspects of the case certainly smack of overkill. At trial, court heard how the boy was a victim of constant bullying and—according to the always-reliable cafeteria rumour mill—had drafted a “hit list” of his tormentors. Yet when school officials confiscated his so-called dangerous device, they waited until after the weekend to phone authorities. It stayed inside the building the entire time.
The following Monday, a police bomb squad removed the spice bottle, destroyed it at a remote location, and shipped the debris to the RCMP’s forensics lab in Ottawa for further analysis. The results? The thing was made of sparklers and “Magic Fire” lighter fluid. (Or, as the teen told police, “the blue stuff from the Dollar Store that you throw on a fire.”)

Still bent on a conviction, explosive experts with the RCMP and the Fredericton police reconstructed a carbon copy of the device using the same ingredients. When it wouldn’t light the first time, the officers modified it slightly, crushing up some extra sparklers and stuffing them inside the bottle. But again, it wouldn’t catch. Finally, the cops tried tying a much longer sparkler to the top of the device. In the judge’s words, “a very intense fire followed as the contents of the bottle deflagrated but did not did explode.” Prosecutors can only hope that their appeal is not such a flop.

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