Conspiracy (Offence)

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Conspiracy
s. 465 of the Crim. Code
Election / Plea
Crown Election Indictment (465(1)(b) and (c))
Summary (465(1)(d))
summary proceedings must initiate within 6 months of the offence (786(2))
Jurisdiction s. 465(1)(b), (c):
Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)
* Must be indictable. Preliminary inquiry also available.
s. 465(1)(a):
Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Preliminary inquiry also available.
s.465(1)(d):
Prov. Court only
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum six months jail and/or a $5,000 fine
Indictable Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum None
Maximum 5, 10 years incarceration or Life
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to conspiracy are found in Part XIII of the Criminal Code relating to "Attempts — Conspiracies — Accessories".

Pleadings
Offences under s. 465(1)(a) [conspiracy to commit murder] are exclusive jurisdiction offences under s. 469 and so cannot be tried by a provincial court judge. It is presumptively tried by judge and jury.

Offences under s. 465(1)(b) and (c) are straight indictable. There is a Defence election of Court under s. 536(2).

Offences under s. 465(1)(d) are straight summary conviction offence. The trial must be held in provincial court.

Release
When charged under s. 465(1)(a), (b), the accused cannot be released by police under s. 497 or 498 and so must be held by police when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by an order of a judge or justice under s. 515. A youth will be subject to a maximum penalty of 3 years under s. 42(15) of the YCJA and can be given an attendance notice without arrest under s. 496 or a summons and if arrested, can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The youth can also be released by a justice under s. 515.

When charged under s. 465(1)(d), the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515.

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

Publication Ban
For all offences 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
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Conspiracy
465. (1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy:

(a) every one who conspires with any one to commit murder or to cause another person to be murdered, whether in Canada or not, is guilty of an indictable offence and liable to a maximum term of imprisonment for life;
(b) every one who conspires with any one to prosecute a person for an alleged offence, knowing that he did not commit that offence, is guilty of an indictable offence and liable
(i) to imprisonment for a term not exceeding ten years, if the alleged offence is one for which, on conviction, that person would be liable to be sentenced to imprisonment for life or for a term not exceeding fourteen years, or
(ii) to imprisonment for a term not exceeding five years, if the alleged offence is one for which, on conviction, that person would be liable to imprisonment for less than fourteen years;
(c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable; and
(d) every one who conspires with any one to commit an offence punishable on summary conviction is guilty of an offence punishable on summary conviction.

(2) [Repealed, 1985, c. 27 (1st Supp.), s. 61]
...
R.S., 1985, c. C-46, s. 465; R.S., 1985, c. 27 (1st Supp.), s. 61; 1998, c. 35, s. 121.


CCC

Conspiracy in restraint of trade
466 (1) A conspiracy in restraint of trade is an agreement between two or more persons to do or to procure to be done any unlawful act in restraint of trade.
Trade union, exception
(2) The purposes of a trade union are not, by reason only that they are in restraint of trade, unlawful within the meaning of subsection (1).
R.S., 1985, c. C-46, s. 466; 1992, c. 1, s. 60(F).


Proof of the Offence

Proving conspiracy under s. 465 should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the words communicated in the conspiracy
  5. there was an agreement made between the parties
  6. the parties had an intention to agree to put a "common design into effect" and did in fact agree
  7. the parties did not change their minds or intention to put common design into effect
  1. Root, 2008 ONCA 869 (CanLII), at para 66

Interpretation

The purpose of criminalizing conspiracies is to "prevent an unlawful object" from being fulfilled and then "prevent[ing] serious harm from occurring". Parliament intended to intervene "earlier along the continuum of the increased danger represented by a cohort or wrongdoers acting in concert".[1]

A conspiracy is an agreement between two or more persons to do an unlawful act.[2]

There must be an "intention to agree, the completion of an agreement and a common design."[3] The Crown needs only prove that there was "a meeting of the minds with regard to a common design to do something unlawful".[4]

To prove conspiracy the facts must satisfy a three-part Carter test:[5]

  1. has the Crown proven beyond a reasonable doubt the existence of the conspiracy?
  2. has the Crown proven that the accused was probably a member of the conspiracy?
  3. considering all of the evidence, is the accused guilty beyond a reasonable doubt of being a member of the conspiracy?

A conspiracy must include (1) an agreement and (2) the unlawful objective or "common design".[6]

As well, unlawful objective does not need to come about. It is the planning that is the criminal act.[7]

An conspiracy made over the telephone will occur within the jurisdiction of both calling parties.[8]

Both legal and factual impossibility are not defences to an allegation of conspiracy.[9]

It is not necessary to prove that the predicate offence was actually committed.[10]

The fact that the co-conspirators are unidentified does not result in a failure to prove the offence of conspiracy.[11]

  1. R v Dery,[2006] 2 SCR 669, 2006 SCC 53 (CanLII), at para 44
    R v Meyer, 2012 ONCJ 791 (CanLII), [2012] O.J. No. 6235, at para 21 per Pacciocco J. ("The law of conspiracy achieves this policy [of preventing serious harm from occurring] by allowing a pre-emptive strike where there is a true agreement to achieve a mutual criminal objective.")
  2. R v O'Brien 1954 CanLII 42, [1954] SCR 666 at pp.668-9
    See: R v Paradis 1933 CanLII 75 (SCC), [1934] SCR 165, 61 CCC 184 (S.C.C.) at p. 186 - defines as two or more persons agreeing to act in concert in pursuit of a common goal
  3. United States of America v Dynar, 1997 CanLII 359, [1997] 2 SCR 462 at para.86 and R v Root, 2008 ONCA 869 (CanLII), [2008] O.J. No. 5214 (OCA) at para 66
  4. Dynar, at para 87
  5. R v Carter, 1982 CanLII 35, [1982] 1 SCR 938
  6. R v O'Brien, at para 2-3, per Taschereau J. ("It is of course, essential that the conspirators have the intention to agree, and this agreement must be complete ... there must exist an intention to put the common design into effect.")
    R v Root, 2008 ONCA 869 (CanLII)
  7. R v O'Brien, at para 4 ("The law punishes conspiracy so that the unlawful object is not attained. It considers that several persons who agree together to commit an unlawful act, are a menace to society, and even if they do nothing in furtherance of their common design, the state intervenes to exercise a repressive action, so that the intention is not materialized, and does not become harmful to any one.")
  8. R v Doucette, 2003 PESCAD 7 (CanLII)
  9. United States v Dynar, 1997 CanLII 359 (SCC), [1997] 2 SCR 462, at para 105 (It is not relevant whether "from an objective point of view, commission of the offence may be impossible.")
  10. See R v Koufis, 1941 CanLII 55 (SCC), [1941] SCR 481, 76 CCC 161 (SCC)
    R v Beaven, 2013 SKQB 7 (CanLII) at para 73
  11. Root at para 69

Agreement

The agreement is the essence of the offence of conspiracy.[1]

An agreement can be implied or tacit. It requires a meeting of the minds to create a common intention to commit an offence. The parties must have knowledge of a common goal and agreement to achieve it.[2]

There must be a "consensus to effect an unlawful purpose".[3]

It is not enough that there be a common intention.[4] Nor is passive acquiescence to a criminal plan sufficient[5], knowledge of the plan[6], or nor wilful blindness.

It is not a "formal agreement" and may be implicit.[7]

Where there is a pre-existing conspiracy, the accused must have adopted it or consented to participate in achieving the goal.[8]

A conditional agreement can still be an agreement.[9]

The charge must identify the crime(s) planned.[10] And it should generally identify the co-conspirators.[11]

It is a valid defence to establish that the accused pretended to agree to the conspiracy.[12]

The trier of fact must find "that the accused intended to enter into the agreement".[13]

Conspiracy cannot be committed by way of an accused being reckless as to the object of the agreement.[14] However, the accused can be liable where he is reckless as to the method of execution of the agreement.[15]

Willful blindness can satisfy the mens rea requirement of conspiracy.[16]

A party to an offence, including conspiracy "must have some knowledge of the essential nature of the offence to be committed, but not necessarily knowledge of all the details".[17]

Evidence of "how" the agreement is to be carried out, specifically to over acts to be taken are elements to the agreement element of the offence.[18]

  1. R v Papalia, 1979 CanLII 38 (SCC), [1979] 2 SCR 256 ("The essence of criminal conspiracy is proof of agreement...")
  2. Atlantic Sugar Refineries Co. v Canada (Attorney General), 54 CCC (2d) 373, 1980 CanLII 226 (SCC), [1980] 2 SCR 644
  3. R v Papalia, (“two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a consensus to effect an unlawful purpose. ”)
  4. O'Brien, 1954 CanLII 42, [1954] SCR 666
  5. R v McNamara (1981), 56 CCC (2d) 193 at 452 (Ont. C.A.)(*no link) ("Mere knowledge of, discussion of or passive acquiescence in a plan of criminal conduct is not, of itself, sufficient")
  6. Goode, Criminal Conspiracy in Canada (1975), p. 16
  7. Goode, Criminal Conspiracy in Canada (1975), p. 16
  8. R v Lamontagne, 1999 CanLII 13463 (QC CA), (1999), 142 CCC (3d) 561 (Que. C.A.), 1999 CanLII 13463 (QC CA)
  9. R v Root, 2008 ONCA 869 (CanLII) at para 70
  10. R v Saunders, 1990 CanLII 1131 (SCC), [1990] 1 SCR 1020
  11. R v B. (T.L.) (1989), 52 CCC (3d) 72 (NSCA)(*no link)
    R v Root at para 69
  12. R v Delay (1976), 25 CCC (2d) 575 (Ont. C.A.)(*no link)
  13. Barbeau at p. 568
  14. R v Lessard (1982), 10 CCC (3d) 61 (QCCA)(*no link) at p. 86
    Lamontagne at p. 576 "one notes that the crime of conspiracy cannot be committed by mere recklessness as to the object of the agreement")
  15. Barbeau, supra
    Park, supra ("recklessness may only be applied with respect to the method of execution of the agreement")
    Lessard, supra
    Lamontagne, supra
  16. R v Barbeau, supra
    R v Park, supra ("The mens rea requirement for conspiracy may be satisfied where willful blindness is established")
  17. Park, supra at p. 569 to 571
  18. R v Douglas, [1991] 1 SCR 301, 1991 CanLII 81 (SCC), at para 28 ("How that agreement is to be carried out, that is to say, the steps taken in furtherance of the agreement (the overt acts) are simply elements going to the proof of the essential ingredient of the offence, namely the agreement.")

Common Design

There must be a "a common plan with a common objective".[1]

The Crown must establish that the accused had an intention to become a party to the common design with the knowledge of its implications.[2]

  1. R v Cotroni, (sub nom. Papalia), 1979 CanLII 38 (SCC), [1979] 2 SCR 256
  2. R v Papalia, (“In addition to proof of common design, it was incumbent on the Crown to establish that each accused had the intention to become a party to that common design with knowledge of its implications.”)

Participation

It is not required that it be proven that every member of the conspiracy be involved in its execution or that they were involved throughout the entire time. It is enough if the evidence "demonstrates that the conspiracy proven included some of the accused; establishes that it occurred at some time within the time frame alleged in the indictment; and had as its object the type of crime alleged."[1]

A member of a conspiracy who refuses to execute the plan is still guilty.[2]

Involvement in only part of a whole plan will still be found guilty.[3]

An accused cannot be convicted for attempted conspiracy.[4]

  1. R v Douglas, [1991] 1 SCR 301, 1991 CanLII 81 (SCC), at para 41
    Papalia ("The essence of criminal conspiracy is proof of agreement...")
  2. R v O'Brien, 1954 CanLII 42, [1954] SCR 666 at para 4
  3. R v Shirose, 1999 CanLII 676 (SCC), [1999] 1 SCR 565
  4. R v Dery, 2006 SCC 53 (CanLII), [2006] 2 SCR 669

Evidence

Words of the co-conspirator are admissible against the accused. They are not hearsay and are rather the actus reus.[1]

Further, the co-conspirators exception to hearsay makes statements admissible against the accused.[2]

Statements by the co-conspirator that are not related to the conspiracy are not admissible against the accused.[3]

  1. R v Cook (1984), 39 C.R. (3d) 300 (ONCA) aff'd in 1986 CanLII 47 (SCC), [1986] 1 SCR 144
  2. R v Gassyt (1998), 127 CCC (3d) 546 (ONCA), 1998 CanLII 5976 (ON CA)
    R v Perciballi (2001), 154 CCC (3d) 481 (Ont. C.A.), 2001 CanLII 13394 (ON CA), aff'd in 2002 SCC 51
    R v Gagnon (2000), 147 CCC (3d) 193 (ONCA), 2000 CanLII 16863 (ON CA)
  3. R v Henke, 1989 ABCA 263 (CanLII), (1989), 72 C.R. (3d) 395 (Alta C.A.)
    R v Maugey, 2000 CanLII 8488 (ON CA), (2000), 146 CCC (3d) 99 (Ont. C.A.)

Aiding and Abetting

See also: Parties to an Offence

There has been a divided line of case law on whether a conviction can be made for being a party to a conspiracy.[1]

  1. R v Park, 2009 ABQB 470 (CanLII) at paras 540 to 575
    R v Taylor (1984), 40 C.R. (3d) 222 (BCSC)(*no link)

Jurisdiction

465.
...
Conspiracy to commit offences
(3) Every one who, while in Canada, conspires with any one to do anything referred to in subsection (1) in a place outside Canada that is an offence under the laws of that place shall be deemed to have conspired to do that thing in Canada.
Idem
(4) Every one who, while in a place outside Canada, conspires with any one to do anything referred to in subsection (1) in Canada shall be deemed to have conspired in Canada to do that thing.
Jurisdiction
(5) Where a person is alleged to have conspired to do anything that is an offence by virtue of subsection (3) or (4), proceedings in respect of that offence may, whether or not that person is in Canada, be commenced in any territorial division in Canada, and the accused may be tried and punished in respect of that offence in the same manner as if the offence had been committed in that territorial division.
Appearance of accused at trial
(6) For greater certainty, the provisions of this Act relating to

(a) requirements that an accused appear at and be present during proceedings, and
(b) the exceptions to those requirements,

apply to proceedings commenced in any territorial division pursuant to subsection (5).
Where previously tried outside Canada
(7) Where a person is alleged to have conspired to do anything that is an offence by virtue of subsection (3) or (4) and that person has been tried and dealt with outside Canada in respect of the offence in such a manner that, if the person had been tried and dealt with in Canada, he would be able to plead autrefois acquit, autrefois convict or pardon, the person shall be deemed to have been so tried and dealt with in Canada.
R.S., 1985, c. C-46, s. 465; R.S., 1985, c. 27 (1st Supp.), s. 61; 1998, c. 35, s. 121.


CCC

Defences

Saving
467 (1) No person shall be convicted of the offence of conspiracy by reason only that he

(a) refuses to work with a workman or for an employer; or
(b) does any act or causes any act to be done for the purpose of a trade combination, unless that act is an offence expressly punishable by law.

Definition of trade combination
(2) In this section, trade combination means any combination between masters or workmen or other persons for the purpose of regulating or altering the relations between masters or workmen, or the conduct of a master or workman in or in respect of his business, employment or contract of employment or service.
R.S., c. C-34, s. 425.


Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

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
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. 465(1)(a), (b), and (c) are straight indictable. The maximum penalty is life under s. 465(1)(a), 10 years incarceration under s. 465(1)(b)(i), and 5 years incarceration under s. 465(1)(b)(ii). Where prosecuted under s. 465(1)(c) the maximum penalty will match that of the index offence.

Offences under s. 465(1)(d) are straight summary conviction offences. The maximum penalty is six months jail and/or a $5,000 fine.

Minimum Penalties
These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 465(1)(a) N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 465(1)(d) N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

If convicted under s. 465(1)(a) 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. 465(1)(a) 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.

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

  • Varies based on index offence
Order Conviction Description
DNA Orders s. 465(1)(b)(i), (ii)
Delayed Parole Order s. 465(1)(a)
  • Periods of imprisonment of 2 years or more for convictions under s. 465(1)(a) [conspiracy to commit murder] are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".

General Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has 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 mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).

General Forfeiture Orders

Forfeiture Conviction Description
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 Her Majesty the Queen on application of the Crown.
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(!) 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.

See Also