Criminal Law Notebook

Co-Conspirators Exception to Hearsay

This page was last substantively updated or reviewed December 2018. (Rev. # 95248)

General Principles

See also: Conspiracy (Offence) and Traditional Exceptions to Hearsay

The co-conspirators' exception to hearsay permits the admission of out-of-court statements made by a co-conspirator against the accused.[1]

The exception exists "because conspirators are agents of each other, their acts in the agency are admissible against each other."[2]

Generally, a conspiracy is an "agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means."[3] The essential elements require (a) an agreement (b) an intention to agree (c) a criminal purpose, and (d) an intention to effect the purpose.[4] Evidence of a conspiracy is almost always circumstantial. Direct evidence is a rarity.[5]

Carter Test

The Crown must prove beyond a reasonable doubt:[6]

  1. that there was a conspiracy to commit an offence beyond a reasonable doubt
  2. that the accused was "probably a participant" or member in the conspiracy (balance of probabilities)
  3. if the Crown had proved his "participation" beyond a reasonable doubt, then the exception applies;
  4. the utterance was in furtherance of the conspiracy.

This exception is not limited or obsolete despite the overlap with the principled approach.[7]

In determining whether the conspiracy existed, the court may take into account "all the evidence."[8] This is includes all admissible evidence as well as the alleged hearsay statement being sought to be admitted.[9] This evidence is not necessarily admissible for the step to determine if the accused was a member of the conspiracy.[10]

The existence of a conspiracy cannot be found based solely on the criminal convictions or guilty pleas of a co-conspirator.[11]

In determining the membership of the accused, the judge may only consider evidence "directly admissible against the accused."[12] Evidence of the co-conspirators actions and words can provide context and understanding of the accused.[13] Context of the accused's action and words must be considered as well.[14]

Evidence considered must only be evidence that is admissible against the accused.[15] Evidence can include hearsay statements of the accused that are against interest.[16]

In the final step of the test concerning whether the statement was in furtherance of the conspiracy, the court may only consider acts and declarations made "in furtherance" of the conspiracy. Accordingly, the acts and words prior to the formation of the conspiracy are not admissible for that purpose.[17] However, it may be used to prove the origin, character and object of the conspiracy.[18]

Actions and words occurring after the completion of the conspiracy may be used where the acts or words are "immediately connected with the crime specified as the object of the conspiracy and necessary for its successful completion, are within the common design, and in furtherance of the conspiracy."[19]

Acts or words "in furtherance" of a conspiracy "are those which moved the conspiracy forward, not narrative discussions or descriptions, or statements made after the object of the conspiracy has been carried out, such as statements made to the police after the fact."[20]

Words "in furtherance" have been found to include "reassurances and updates given by one member to another" as well as "acts done to avoid detection."[21]

The availability of the co-conspirator is not determinative of whether the exception applies.[22]

This rule applies even in cases where there are only two conspirators.[23]

Standard of Proof

Where conspiracy has not been charged, the Crown need only prove the conspiracy on the standard of a balance of probabilities.[24]

Necessity and Reliability

Where the statement satisfies all the steps of the Carter test, the statement will meet the reliability requirement for hearsay.[25]

Where the declarant of the statement is jointly charged, then the element of necessity required for hearsay is satisfied.[26] This is also true for any other circumstances where the declarant is non-compellable.[27]

Where the declarant is available to testify, such as where the declarant is not charged, that may mean that necessity cannot be established.[28] There is no hard and fast rule where the declarant is available. It should be applied "flexibly."[29] This does not appear to be an obstacle where the declaration was recorded.[30]

  1. ↑ J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 30: (“Statements made by a person engaged in an unlawful conspiracy are receivable as admissions as against all those acting in concert if the declarations were made while the conspiracy was ongoing and were made towards the accomplishment of the common object”)
    R v Correia, 2016 BCCA 330 (CanLII), 339 CCC (3d) 321, per Stromberg-Stein JA, at para 24
    R v Wang, 2013 BCCA 311 (CanLII), 299 CCC (3d) 431, per Bennett JA, at para 46
  2. ↑ R v Maugey, 2000 CanLII 8488 (ON CA), 146 CCC (3d) 99, per Feldman JA, at para 29
  3. ↑ R v O'Brien, 1954 CanLII 42 (SCC), [1954] SCR 666, per Tascherau J, at p. 9
  4. ↑ USA v Dynar, supra
    Conspiracy
  5. ↑ R v JF, 2013 SCC 12 (CanLII), [2013] 1 SCR 565, per Moldaver J, at para 53
  6. ↑ See R v Carter, 1982 CanLII 35 (SCC), 67 CCC (2d) 568, per McIntyre J
    R v Mapara, 2005 SCC 23 (CanLII), [2005] 1 SCR 358, per McLachlin CJ, at para 8 (“Statements made by a person engaged in an unlawful conspiracy are receivable as admissions as against all those acting in concert if the declarations were made while the conspiracy was ongoing and were made towards the accomplishment of the common object”)
    R v Puddicombe, 2013 ONCA 506 (CanLII), 299 CCC (3d) 543, per Doherty JA, at para 60
    R v Barrow, 1987 CanLII 11 (SCC), [1987] 2 SCR 694, per Dickson CJ, at para 73
  7. ↑ Mapara, supra
  8. ↑ R v Alcantara, 2012 ABQB 521 (CanLII), 547 AR 1, per Greckol J, at paras 49 to 53
  9. ↑ Alcantara, ibid.
    R v Smith, 2007 NSCA 19 (CanLII), 216 CCC (3d) 490, per Cromwell JA, at para 236
  10. ↑ Alcantara, supra, at para 57
  11. ↑ R v Kim, 2005 CanLII 23217 (ON CA), 199 CCC (3d) 372, [2005] OJ No 2748, per Lang JA
  12. ↑ Alcantara, supra, at para 54
  13. ↑ Alcantara, supra, at para 56
  14. ↑ R v Filiault, 1981 CanLII 3165 (ON CA), 63 CCC (2d) 321, per Martin JA, aff’d 15 CCC (3d) 352n (SCC)
  15. ↑ Hill, Tanovich & Strezos, McWilliam’s Canadian Criminal Evidence, 5th ed. (Ontario: Thomson Reuters, 2013) at 7-148
  16. ↑ Alcantara, supra, at para 55
  17. ↑ Hill, Tanovich & Strezos, McWilliam’s Canadian Criminal Evidence, 5th ed. (Ontario: Thomson Reuters, 2013) at 7-151
  18. ↑ R v McNamara, 1981 CanLII 3120 (ON CA), 56 CCC (2d) 193, per curiam, at p. 453
    Alcantara, supra, at para 63
  19. ↑ R v Baron and Wertman, 1976 CanLII 775 (ON CA), 31 CCC (2d) 525, per Martin JA, at p. 549
  20. ↑ Maugey, supra, at para 29
    R v Chang, 2003 CanLII 29135 (ON CA), 173 CCC (3d) 397, [2003] OJ No 1076, per O'Connor ACJ and Armstrong JA, at para 120 (It is "not enough that the ... words pertain to the conspiracy" the statements must be "found to further the specific unlawful object")
  21. ↑ Alcantara, supra, at para 62
  22. ↑ R v NY, 2012 ONCA 745 (CanLII), 294 CCC (3d) 313, per Blair JA
  23. ↑ R v Bogiatzis, 2010 ONCA 902 (CanLII), 285 CCC (3d) 437, per Rosenberg JA
    R v Puddicombe, 2013 ONCA 506 (CanLII), 299 CCC (3d) 543, per Doherty JA
  24. ↑ R v Sutton, 1999 CanLII 13127 (NB CA), 140 CCC (3d) 336, per Drapeau JA
    R v Lambert, 2007 BCCA 26 (CanLII), per Newbury JA
    cf. R v Constantine, 2009 CanLII 7080 (ON SC), per Sproat J
  25. ↑ Chang, supra, at paras 111, 115
    Mapara, supra, at paras 23 to 27
  26. ↑ Chang, supra, at paras 105 to 106
  27. ↑ Mapara, supra, at para 18
  28. ↑ see R v Simpson, 2007 ONCA 793 (CanLII), 230 CCC (3d) 542, per LaForme JA, at para 36
  29. ↑ R v Y(N), 2012 ONCA 745 (CanLII), 294 CCC (3d) 313, per Blair JA
  30. ↑ R v Lepage, 2008 BCCA 132 (CanLII), 232 CCC (3d) 411, per Hall JA, at para 43 leave denied 233 CCC (3d) vi
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