Canadian Criminal Law/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(2) [Repealed, 1985, c. 27 (1st Supp.), s. 61]
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.
(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.
(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.
Proof of the Offence
- identity of accused
- date and time of 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
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 test from R. v. Carter,  1 S.C.R. 938 1982 CanLII 35:
- has the Crown proven beyond a reasonable doubt the existence of the conspiracy?
- has the Crown proven that the accused was probably a member of the conspiracy?
- 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".
As well, unlawful objective does not need to come about. It is the planning that is the criminal act.
An conspiracy made over the telephone will occur within the jurisdiction of both calling parties.
It is not relevant whether "from an objective point of view, commission of the offence may be impossible."
- R v O'Brien > 1954 CanLII 42,  SCR 666 at pp.668-9
- United States of America v. Dynar, 1997 CanLII 359,  2 SCR 462 at para.86 and R. v. Root,  O.J. No. 5214 (OCA) at para. 66
- Dynar, at para. 87
- R v O'Brien  SCR 666 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. O'Brien, at 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.")
- R. v. Doucette, 2003 PESCAD 7
- United States v. Dynar,  2 S.C.R. 462 at para. 105
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.
It is not a "formal agreement" and may be implicit.
There must be a "a common plan with a common objective".
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.
It is a valid defence to establish that the accused pretended to agree to the conspiracy.
- Atlantic Sugar Refineries Co. v. Canada (Attorney General), 54 C.C.C. (2d) 373,  2 S.C.R. 644
- R v McNamara (1981), 56 C.C.C. (2d) 193 at 452 (Ont. C.A.) ("Mere knowledge of, discussion of or passive acquiescence in a plan of criminal conduct is not, of itself, sufficient")
- Goode, Criminal Conspiracy in Canada (1975), p. 16
- Goode, Criminal Conspiracy in Canada (1975), p. 16
- R. v. Cotroni, (sub nom. Papalia v. R.)  2 S.C.R. 256
- R. v. Lamontagn (1999), 142 C.C.C. (3d) 561 (Que. C.A.)
- R. v. Root, 2008 ONCA 869 (Ont. C.A.) at para. 70
- R. v. Saunders,  1 S.C.R. 1020
- R. v. B. (T.L.) (1989), 52 C.C.C. (3d) 72 (NSCA)
R. v. Root, 2008 ONCA 869 at para. 69
- R. v. Delay (1976), 25 C.C.C. (2d) 575 (Ont. C.A.)
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.
- R. v. O'Brien, at para 4
- R. v. Shirose,  1 S.C.R. 565
- R c Dery 2006 SCC 53
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.
- R. v. Cook (1984), 39 C.R. (3d) 300 (ONCA) aff'd in  1 S.C.R. 144
- R. v. Gassyt (1998), 127 C.C.C. (3d) 546 (ONCA)
R. v. Perciballi (2001), 154 C.C.C. (3d) 481 (Ont. C.A.) aff'd in 2002 SCC 51
R. v. Gagnon (2000), 147 C.C.C. (3d) 193 (ONCA)
- R. v. Henke (1989), 72 C.R. (3d) 395 (Alta C.A.)
R. v. Maugey (2000), 146 C.C.C. (3d) 99 (Ont. C.A.)