Supreme Court Clarifies Elements of Conspiracy

On March 1, 2013, the Supreme Court of Canada (the “SCC“) in R v. J.F., clarified the elements of the offence of conspiracy.  The decision has immigration implications because people who have been convicted of conspiracy may be inadmissible to Canada.

 

Section 465 of Canada’s Criminal Code criminalizes the offence of conspiracy.  Conspiracy is a form of inchoate liability.  In other words, the actual result of the conspiracy need not occur for someone to be convicted under s. 465.  For example, a person can be convicted of “conspiracy to commit murder” even if the murder does not occur.  Furthermore, members in a conspiracy need not personally commit, or intend to commit, the offence which each has agreed should be committed.  Any degree of assistance in the furtherance of the unlawful object can lead to a finding of membership as long as agreement to a common plan can be inferred and the requisite mental state has been established.

Aiding or abetting the formation of an agreement between conspirators amounts to aiding or abetting the principals in the commission of the conspiracy.  Party liability is limited, however, to cases where the accused aids or abets the initial formation of the agreement, or aids or abets a new member to join a pre‑existing agreement.  The SCC ruled that acts that further the unlawful object of a conspiracy are not an element of the offence of conspiracy.  Aiding or abetting the furtherance of the unlawful object does not establish aiding or abetting the principal with any element of the offence of conspiracy.  However, the SCC noted that where a person, with knowledge of a conspiracy, does or omits to do something for the purpose of furthering the unlawful object, with the knowledge and consent of one or more of the existing conspirators, this provides powerful circumstantial evidence from which membership in the conspiracy can be inferred.  Specifically, the Court stated that:

In my view, where a person, with knowledge of a conspiracy (which by definition includes knowledge of the unlawful object sought to be attained), does (or omits to do) something for the purpose of furthering the unlawful object, with the knowledge and consent of one or more of the existing conspirators, this provides powerful circumstantial evidence from which membership in the conspiracy can be inferred.  To be precise, it would be evidence of an agreement, whether tacit or express, that the unlawful object should be achieved.  Ultimately, that issue is one for the trier of fact, who must decide whether any inference other than agreement can reasonably be drawn on the evidence.

A Note on Attempted Conspiracy

It is important to note that there is no such thing in Canada as “attempted conspiracy.”  In R. v. Déry, 2006 SCC 53, the SCC noted that:

When applied to conspiracy, the justification for criminalizing attempt is lost, since an attempt to conspire amounts, at best, to a risk that a risk will materialize.

This differs with some US States, and accordingly any foreign convictions for “attempted conspiracy” would not result in inadmissibility to Canada.