B. Conspiracy

Author:Kent Roach
Profession:Faculty of Law and Centre of Criminology. University of Toronto
Pages:136-141
 
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A conspiracy, like an attempt, is something that occurs before a completed offence is committed. The Supreme Court has indicated that "conspiracy is in fact a more ‘preliminary’ crime than attempt, since the offence is considered to be complete before any acts are taken that go beyond mere preparation to put the common design into effect. The Crown is simply required to prove a meeting of the minds with regard to a common design to do something unlawful, specifically the commission of an indictable offence."52Unlike attempts, however, conspiracies are generally punished as severely as the completed offence.

Section 465(1)(c) establishes the general offence of conspiracy by providing that "every one who conspires with any one to commit an indictable offence . . . 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that offence would, on conviction, be liable."53A general provision for conspiracies to effect an unlawful purpose was repealed after the Supreme Court indicated a reluctance to recognize conspiracies to commit common law as opposed to statutory crimes.54There are specific provisions relating to conspiracy to commit murder;55conspiracy to prosecute a person known to be innocent;56conspiracy with extraterritorial effects;57and conspiracy in restraint of trade.58The agreement of more than one person to commit a crime is seen as a particular menace

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to society that deserves punishment even before the conspirators have taken steps beyond preparation and attempted to commit the crime. In practice, conspiracy charges are most often brought in cases involving organized crime and drug trafficking. Other offences such as participation in the activities in a terrorist organization or a criminal organization may be functional substitutes for conspiracy charges.

1) The Actus Reus of Conspiracy

The actus reus of conspiracy is an agreement to carry out the completed offence. "The essence of criminal conspiracy is proof of agreement. On a charge of conspiracy the agreement is the gist of the offence. The actus reus is the fact of agreement."59The commission of acts in furtherance of the scheme does not constitute the actus reus; there must be an agreement and meeting of minds to commit the offence.60Once an agreement to commit an offence is reached, it is not necessary to do anything else. A criminal plot may be a conspiracy long before it has gone beyond the preparation necessary for a criminal attempt. Thus, "[c]onspiracy is in fact a more ‘preliminary’ crime than attempt, since the offence is considered to be complete before any acts are taken that go beyond mere preparation to put the common design into effect. The Crown is simply required to prove a meeting of the minds with regard to a common design to do something unlawful, specifically the commission of an indictable offence."61An agreement to launder money could be a conspiracy even though the money was not yet transferred between the parties and there would not be a sufficient actus reus for an attempt.

Although an agreement must be between two or more people, a person can be convicted of conspiracy even if, for some other reason, the co-conspirators are not convicted.62As discussed in the next section, however, the conspirators must not only intend to agree, but also intend to carry out their common design. There must be communication for an agreement to be reached, but an implicit or tacit agreement to commit an offence is enough to prove the act of conspiracy:63"So long as there is a continuing overall, dominant plan there may be changes

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in methods of operation, personnel, or victims, without bringing the conspiracy to an end. The important inquiry is not as to the acts done in pursuance of the agreement, but whether there was, in fact, a common agreement."64The actus reus of conspiracy is thus an agreement, but the agreement itself need not be etched in stone or carried out.

a) Attempted Conspiracies and Other Attempts to Combine Inchoate Forms of Liability

The courts have refused to recognize an offence of attempted conspiracy when an agreement is not reached between the parties. In R. v. Déry,65

the Supreme Court set aside a conviction of an attempt to conspire on the basis that it would extend the criminal law too far and criminalize "bad thoughts of this sort that were abandoned before an agreement was reached, or an attempt made, to act upon them." The Court distinguished an attempt to conspire, which it characterized as "a risk...

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