Conspiracy Theory

Last updated: 2016-03-17
Henry Waldock

Principles

Conspiracy is an agreement to commit a criminal act. A group of people committing a criminal act together are not "conspiring".  They may be guilty as parties to the crime.
Conspiracy is an agreement between two or more people to commit a criminal act.
An offence by a group of people isn't necessarily a conspiracy.

A conspiracy requires an agreement between two or more parties to do an unlawful act, or to do a lawful act by unlawful means. There must be an intention to put the common design into effect.

If two people say words of agreement that they will commit a crime, but only one was serious about carrying through with it, then there was no agreement, and therefore no conspiracy.  Therefore a police agent can not catch someone in a conspiracy if the only two people involved are the suspect and the agent (who has no intention to put the common design into effect). O'Brien, [1954] S.C.R. 666.

So long as such a design is merely an intention, it is not an offence; but an agreement is. It is not necessary that there should be an overt act in furtherance of the conspiracy: when two or more agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties is punishable if the agreement is for a criminal object. Alexander & Blake (2005 Ont CA) at para 46-48; R. v. J.F., 2013 SCC 12 at para 21.

The unlawful acts may be in or out of Canada. s.465 Canada has jurisdiction where the agreement takes place, and where the acts take place in furtherance of the agreement. (Lai 1985 BCCA, Horbas 1969 Man CA)

A person who assists a conspiracy may be found guilty as a party to it.  However, the "party" must aid or abet the agreeing not the criminal acts the conspirators agree to do.  R. v. J.F., 2013 SCC 12.  Someone who helps conspirators to commit murder is party to murder, but not party to conspiracy.

It is not an offence in Canada to attempt to conspire to commit a criminal offence. R. v. Déry, 2006 SCC 53. If the suspect talked someone else into committing a criminal offence, try counselling instead.

Unless a third party was involved, a husband and wife can not conspire, because ancient common law treated them as one person (Kowbel 1954 SCC).  Courts disagree whether common-law partners enjoy this defence. A judge in Quebec said they do: Thompson v. Canada 1998 Que S.C.; but another judge in B.C. said they don't. Nuttall, 2015 BCSC 943

An officer who knows the identity of only one member of a conspiracy can still have sufficient grounds to apply for a wiretap authorization, so long as the officer can provide evidence of others with whom that one person is conspiring.  R. v. Oliynyk, 2005 BCSC 1893 (B.C.S.C.).

When alleging a conspiracy, take care to specify what criminal act the parties agreed to commit.  Bremner 2007 NSCA 53.

Conspiracy, Counselling and Attempt

Undercover police approached Mr Radojcic posing as drug dealers looking to set up a money-laundering operation.  Mr Radojcic introduced them to a lawyer, Mr Root, 2008 ONCA 869, who met with them several times to discuss how to move their large cocaine profits to another country.  Mr Root came up with several plans, and told them "his people" were prepared to receive millions of dollars of illegal money in Canada, and transfer it to the USA.  However, the officers and Mr Root never agreed on the lawyers' fees.

The trial judge acquitted Mr Root of conspiracy because he never agreed with the police as to the lawyer's fees.  The Court of Appeal ordered a new trial: Root had agreed with his partners to possess and launder the money, on condition that he could persuade the officers to pay 25% to the lawyers.  A contingent agreement can still be an agreement.

The trial judge acquitted Mr Root of conspiring with Radojcic because Radocjic wasn't going to do any of the laundering.  Again, the Court of Appeal interfered: a conspiracy doesn't require that each conspirator perform all the illegal acts.  Conspiracy is agreeing to commit a crime, not committing the crime itself.

The trial judge acquitted Mr Root of conspiring because the evidence didn't prove that Radocjic also conspired with Root's partners.  This was also wrong.  If A is charged with conspiring with B, C, and D but the evidence shows only that he conspired with D, A may still be found guilty.

The trial judge acquitted Mr Root of counselling because the police made the first approach, and because Root had to get the approval of his partners to go ahead with the scheme.  But neither of these are relevant.  Counselling is "deliberate encouragement" or "active inducement" to another person to commit a crime.  It doesn't matter if the target came up with the idea first.  The offence is complete even if the target never comits the crime.

The trial judge also acquitted Mr Root of attempting to possess or launder money.  An attempt is the taking of steps beyond mere preparation, with the intention of committing a crime.  The acts beyond preparation do not themselves have to be illegal, and to be guilty, the steps do not need to include the last step before the crime.  But in this case, Root had done everything necessary except receive the money.

If your suspect talked about committing a crime, this decision helps you determine which - if any - of these "inchoate" offences have been committed.

Cases

Two fellows, Tran 2000 NSCA 128 and Nguyen were charged with murder. In custody, they ask a fellow prisoner to murder a key witness. That prisoner agrees: either he'll do the deed, or he'll hire a fellow from Toronto. The other prisoner then changed his mind, and sold this information to police for a price. Police staged an undercover operation, and collected evidence of the plot. Defence argued that that Tran merely had an intention to arrange the murder, and that did not suffice for a murder plot. Held: Even though the rat may have changed his mind, Tran agreed to the plan, with the intention that it be carried out, and was therefore guilty of conspiracy.

Mr Dynar, [1997] 2 S.C.R. 462 thought he conspired with an American to launder American proceeds of crime. Actually, it was an FBI sting.  The Americans wanted him extradited. Canadian law permits extradition only if his actions constituted an offence in Canada.  Defence argued that because the funds in question belonged to the American government, the conspiracy was only an agreement to tranfer money, not illegal money.  The court found that Mr Dynar believed it was proceeds of crime, therefore, he attempted to launder the money.  And there was evidence he agreed (with another Canadian) to launder proceeds of crime.  That's the offence of conspiracy.  Even if it turns out that the conspiracy will fail, the crime is in the agreement.  Therefore he was extradited.

Two fellows Alexander & Blake (2005 Ont CA) extorted various lawyers and businessmen by videotaping paid escorts to have sex with them, and then threatening to publish the pictures. Although the evidence established a plan, it did not establish any agreement between the parties to commit extortion. A conspiracy was not proved. (But extortion was.)

Mr Lam, 2005 ABQB 849 was a cell phone salesman.  He knew very well that one particular customer was the kingpin of a drug dealing organization, and he gave that customer excellent service in order to keep his business.  He was not guilty of conspiracy, because he was not a party to the agreement to traffick.  Was he a party?  The trial judge said no, because Mr Lam's assistance helped the parties traffick.  He did not help the parties agree to traffick.  Danger: this is a trial level decision, and may be appealed.

In R. v. Oliynyk, 2005 BCSC 1893, there was evidence that a known person had a contract out to kill a person, but the police had no evidence to identify the people with whom he had made this contract.  Was this enough evidence to establish a consipiracy to commit murder?  Defence argued that two or more people had to be "known".  The court disagreed.  If we know of an agreement between two or more people to commit a crime, then we know of a conspiracy, whether or not we know the identities of the people involved in the agreement.

Purchase and Sale of Illegal Products

A purchase and sale of illegal product is not a conspiracy.

Mr McCullough 2006 NBCA 82 offered to sell cocaine Mr Wesselby.  This offer, and the fact that Mr Wesselby was a member of a conspiracy to distribute drugs in Saint John did not, without more, establish that Mr McCulloch was a member of Mr Wesselby's conspiracy.

Similarly, Nguyen, 2016 ONCA 182 and his son-in-law ran a garden supply store exclusively for the benefit of growers of illegal marijuana. His sale of lawful property did not commit an offence.  His sales to help marijuana growers was not a conspiracy because he did not agree with them to produce the marijuana. He just sold them stuff. But it did aid them, and he could be guilty of that offence.

Sub-conspiracies

Mr Bremner 2007 NSCA 53 participated in a broad conspiracy to market drugs to various customers at various times.  Instead of charging him with the large general conspiracy, the prosecutor charged him with several little specific ones.  After his first conviction, he'd had enough.  He complained that he'd been convicted once of the large conspiracy, and didn't want to be convicted for it again.  The trial judge agreed, but the Court of Appeal didn't.  No matter how many conspiracies the evidence in a trial might show, the accused should only be convicted if the evidence establishes his guilt in the specific one charged.  That leaves him open to prosecution for the others.

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