- Planning to commit a crime is a criminal offence in Canada. Regardless of if the planned crime is never executed. Conspiring to commit a crime is in itself a crime.
- There are instances where an offence may not have been completed but nevertheless an offence of a different kind has been committed because of the actions or agreements in preparation for the offence. These are known as inchoate offences.
- Even if the crime never occurs someone may be charged with an inchoate offence.
- In an instance where someone was planning on committing a crime they could be charged with the criminal offence of conspiracy found in section 465(1) of the Criminal Code.
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.
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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.
In order to be found guilty of conspiracy it is required that the prosecuting Crown must prove beyond a reasonable doubt that the accused committed conspiracy.
The following constitutes proof of conspiracy:
- 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 defined as 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 must 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.”
- An agreement can be requires that the parties must have knowledge of a common goal and agreement of a common plan to achieve it.
- 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.
- The charge must identify the crime(s) planned. And it should generally identify the co-conspirators.
- Potential defences: If the defence can establish that the accused pretended to agree to the conspiracy, rather than sincerely conspired, the accused may not be found guilty.
- A member of a conspiracy who refuses to execute the plan is still guilty.
- If you have been charged with conspiracy or any other criminal offence contact Kostman and Pyzer for legal advice today!