Conspiracy (Offence)

This page was last substantively updated or reviewed January 2020. (Rev. # 96212)

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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 12 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
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	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
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) [conspiracy to commit summary offence] are straight summary conviction offence. The trial must be held in provincial court.

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By a Judge or Justice on a Release Order s. 515 to 519	Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act
s. 465(1)(a), (b)
s. 465(1)(d) [conspiracy to commit summary offence]

When charged under s. 465(1)(a), (b), the accused can be given a judicial summons without arrest. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

When charged under s. 465(1)(d) [conspiracy to commit summary offence] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

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 weapon, being 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)).

And, regardless of Crown election, if the offence alleged was one:

• where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
• where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
• where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

Publication Ban

For all criminal or regulatory prosecutions, 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

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 465(1)(a) [conspiracy to commit murder], s. 465(1)(b)(i) [conspiracy to prosecute innocent person, 14 years or life], s. 465(1)(b)(ii) [conspiracy to prosecute innocent person, less than 14 years], s. 465(1)(c) [conspiracy to commit indictable offence], s. 465(1)(d) [conspiracy to commit summary offence]

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 they did not commit that offence, is guilty of

(i) an indictable offence and liable to imprisonment for a term of not more than 10 years or an offence punishable on summary conviction, 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 of not more than 14 years, or

(ii) an indictable offence and liable to imprisonment for a term of not more than five years or an offence punishable on summary conviction, if the alleged offence is one for which, on conviction, that person would be liable to imprisonment for less than 14 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]
[omitted (3), (4), (5), (6) and (7)]
R.S., 1985, c. C-46, s. 465; R.S., 1985, c. 27 (1st Supp.), s. 61; 1998, c. 35, s. 121; 2018, c. 11, s. 28; 2019, c. 25, s. 183.

– CCC (CanLII), (DOJ)

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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) [conspiracy in restraint of trade].
R.S., 1985, c. C-46, s. 466; 1992, c. 1, s. 60(F).
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Draft Form of Charges

		Pre-ambles
		"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section	Subject of Offence	Draft Wording
465		"... contrary to section 465 of the Criminal Code."
466		"... contrary to section 466 of the Criminal Code."

Proof of the Offence

Proving conspiracy under s. 465 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the words communicated in the conspiracy ☐ there was an agreement made between the parties ☐ the parties had an intention to agree to put a "common design into effect" and did in fact agree ☐ the parties did not change their minds or intention to put common design into effect

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."

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

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

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

1. has the Crown proven beyond a reasonable doubt the existence of the conspiracy?
2. has the Crown proven that the accused was on balance a member of the conspiracy?
3. considering all of the evidence, including hearsay 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."

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

A conspiracy made over the telephone will occur within the jurisdiction of both calling parties.

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

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

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

Agreement

The agreement is the essence of the offence of conspiracy.

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.

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

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

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

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

A conditional agreement can still be an agreement.

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

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

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

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

Willful blindness can satisfy the mens rea requirement of conspiracy.

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."

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.

Common Design

There must be a "a common plan with a common objective."

The Crown must establish that the accused had an intention to become a party to the common design with the 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."

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

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

An accused cannot be convicted for attempted conspiracy.

Evidence

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

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

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

Aiding and Abetting

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

The members of a conspiracy do not need to all play an equal role in the endeavour, nor do they need to personally commit the offence they have agreed. Any degree of assistance can create membership.

Jurisdiction

465
[omitted (1) and (2)]

Conspiracy to commit offences

(3) Every one who, while in Canada, conspires with any one to do anything referred to in subsection (1) [conspiracy – offence] 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) [conspiracy – offence] 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) [conspiracy deemed in Canada if captured by foreign criminal law] or (4) [deemed Canadian presence when other person in Canada], 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) [jurisdiction of conspiracy].

If previously tried outside Canada

(7) If a person is alleged to have conspired to do anything that is an offence by virtue of subsection (3) [conspiracy deemed in Canada if captured by foreign criminal law] or (4) [deemed Canadian presence when other person in Canada] 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, they would be able to plead autrefois acquit, autrefois convict, pardon or an expungement order under the Expungement of Historically Unjust Convictions Act, 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; 2018, c. 11, s. 28; 2019, c. 25, s. 183.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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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.

– CCC (CanLII), (DOJ)

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Participation of Third Parties

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

Offence(s)	Victim Notice of Agreement s. 606(4.1) [SPIO]	Victim Queried for Interest in Agreement s. 606(4.2) [5+ years]	Victim Notice for Restitution s. 737.1	Victim Notice of Impact Statement s. 722(2)
s. 465(1)(a) [conspiracy to commit murder], s. 465(1)(b)(i) [conspiracy to prosecute innocent person, 14 years or life], s. 465(1)(b)(ii) [conspiracy to prosecute innocent person, less than 14 years], s. 465(1)(c) [conspiracy to commit indictable offence], s. 465(1)(d) [conspiracy to commit summary offence]

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

Offence(s)	Crown Election	Maximum Penalty
s. 465(1)(a) [conspiracy to commit murder]	N/A	life incarceration
s. 465(1)(b)(i) [conspiracy to prosecute innocent person, 14 years or life]	N/A	10 years incarceration
s. 465(1)(b)(ii) [conspiracy to prosecute innocent person, less than 14 years]	N/A	5 years incarceration
s. 465(1)(d) [conspiracy to commit summary offence]	N/A	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)

Offences under s. 465(1)(a), (b), and (c) are straight indictable. The maximum penalty is life incarceration 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 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

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) [conspiracy to commit murder]	N/A
s. 465(1)(d) [conspiracy to commit summary offence]	N/A

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

Offence-specific Orders

• Varies based on index offence

Order	Conviction	Description
DNA Orders	s. 465(1)(b)(i), (ii)	For conviction under s. 465(1)(b)(i),(ii), a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).
Delayed Parole Order	s. 465(1)(a) [conspiracy to commit murder]	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 the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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(1) 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. NB: does not apply to summary offences.

Record Suspensions and Pardons

Convictions under s. 465 are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

See Also

• Parties to an Offence#Counselling