Conspiracy!


Last week, I explored a number of ways in which individuals could be considered parties to offences—even where those individuals were not the actual perpetrators. A similar provision is the criminal prohibition against conspiracy.

 

Section 465(1) of the Criminal Code states:

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;

(c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (a)… 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.

 

Although the term “conspiracy” is not defined in the Criminal Code, the Supreme Court of Canada has stated the following (see page 499-500 of United States v Dynar, [1997] 2 SCR 462):

In R. v. O’Brien, 1954 CanLII 42 (SCC), [1954] S.C.R. 666, at pp. 668‑69, this Court adopted the definition of conspiracy from the English case of Mulcahy v. The Queen (1868), L.R. 3 H.L. 306, at p. 317:

‘A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means.  So long as such a design rests in intention only, it is not indictable.  When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties … punishable if for a criminal object….’

 

There must be an intention to agree, the completion of an agreement, and a common design.  Taschereau J., in O’Brien, supra, at p. 668, added that:

‘Although it is not necessary that there should be an overt act in furtherance of the conspiracy, to complete the crime, I have no doubt that there must exist an intention to put the common design into effect.  A common design necessarily involves an intention.  Both are synonymous.  The intention cannot be anything else but the will to attain the object of the agreement.’

 

In this sense, “conspiracy is a crime of intention” (see page 507 of United States v Dynar), which involves “the agreement to perform an illegal act or to achieve a result by illegal means” (see page 316 of R v Douglas, [1991] 1 SCR 301). There is no need for the Crown to prove that any overt acts were done in furtherance of a conspiracy (see R v Douglas).

 

It is also possible for an individual to be found guilty of aiding or abetting a conspiracy (see R v JF, [2013] 1 SCR 565). This involves the Crown showing that the accused “knew the object of the conspiracy and that his assistance was intended to assist the conspirators in attaining their unlawful criminal object” (see paragraph 7 of R v Vucetic (1998), 129 CCC (3d) 178 (ON Court of Appeal)).

 

An illustrative example is the case of R v JF. Here, a youth (“J”) discovered that his friend, “T”, and her sister, “R”, were planning to murder their mother. (The girls ultimately did carry out this plan to kill their mother by plying her with alcohol and drowning her, which resulted in their first-degree murder convictions. This case was covered widely in the press and became the inspiration for a film: http://www.ctvnews.ca/canada/story-of-ontario-s-bathtub-girls-now-a-movie-1.1768213.) Police found an online message log between J and T revealing that J provided information to T about drowning deaths and about combining codeine pills with alcohol. J also suggested ways to mislead investigators. There was also evidence showing that J supplied the sisters with pills and assisted them in developing an alibi. As a result, J was convicted of conspiracy to commit murder.

 

Conspiracy cases often attract a great deal of media attention. Many people in society seem to be under the mistaken belief that there is no crime committed unless a conspiracy actually results in the commission of a “substantive” criminal offence. However, that view is quite incorrect; entering into an agreement to commit an offence is itself a crime. Even if no murder occurred in the case of R v JF, J—along with T and R—would have been guilty of conspiracy to commit murder.

 

Arguably, conspiracy cases are as close as the state gets to criminalizing thoughts.


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About Brandon Trask

Brandon Trask is a regular blog contributor and former colleague of Daniel Murphy and currently a doctoral student at the University of Toronto’s Faculty of Law. He was formerly a Crown Attorney in Newfoundland and Labrador. Brandon holds law degrees from the University of Manitoba and the University of Toronto.