Planning to commit a crime is a criminal offence in Canada, regardless of whether the planned crime is ever executed. There are instances where an offence may not have been completed, yet an offence of a different kind has been committed due to actions or agreements made in preparation for the offence. These are known as inchoate offences.
In situations 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, even if the crime never actually occurred.
Legal Definition of Conspiracy
The legal concept known as "Conspiracy" is codified in section 465(1) of the Criminal Code, with certain provisions applying unless otherwise expressly provided by law. This law states that anyone who conspires with another to commit murder or cause another person to be murdered anywhere is guilty of an indictable offence, punishable by imprisonment for life.
The law also applies to anyone who conspires to prosecute a person for an alleged offence, knowing that they did not commit that offence. In such cases, the penalties can range from a maximum of ten years imprisonment for offences liable to imprisonment for life or less than fourteen years, to five years imprisonment for offences of lesser magnitude.
Furthermore, conspiracy to commit an indictable offence, not detailed in the previous clauses, is itself an indictable offence, with potential penalties matching those of the planned crime. Even conspiring to commit a summary offence is a punishable crime.
The law also considers international boundaries, deeming that any person in Canada who conspires with another to commit an offence in a foreign jurisdiction, that would be considered an offence under the local laws, is deemed to have conspired to commit the offence within Canada.
For a person to be found guilty of conspiracy, it must be proven beyond a reasonable doubt by the prosecuting Crown that the accused has committed conspiracy.
There are seven specific criteria that must be proved: the identity of the accused; the date and time of the incident; the jurisdiction, including the region and province; the words communicated in the conspiracy; that there was actually an agreement made between the parties; if the parties had the intention to put a "common design into effect" and did in fact agree; and finally, that the parties did not change their minds or the intention to put the common design into action.
What Constitutes Proof of Conspiracy?
A conspiracy is defined as an agreement between two or more people with the intent to do something unlawful. This necessitates an "intention to agree", the completion of an agreement, and a common design to commit an unlawful action. The key aspect for the Crown to prove is that there was a "meeting of the minds" with the purpose of carrying out a common design to execute something unlawful.
Conspiracy's factual proof must satisfy the three-part test from R. v. Carter,  1 S.C.R. 938 1982 CanLII 35. To satisfy this test, the Crown must prove beyond a reasonable doubt the existence of the conspiracy, must prove that the accused was probably a member of the conspiracy, and considering all of the evidence, the accused must be guilty beyond a reasonable doubt of being a member of the conspiracy.
A conspiracy must involve an agreement and a common design or unlawful objective. Even if the unlawful objective does not materialize, the act of planning constitutes a criminal act. It is important to note that a conspiracy over the telephone takes place within the jurisdiction of both parties. Even if, from an objective viewpoint, the commission of the offence may seem impossible, it is not relevant to the case.
An agreement in a conspiracy requires that the parties must have knowledge of a common goal and agreement on a common plan to achieve it. If a pre-existing conspiracy exists, the accused must have adopted it or agreed to participate in achieving the goal. Even a conditional agreement can be considered an agreement. The charge must clearly identify the planned crime(s) and generally should identify the co-conspirators. For the defence, if it can be established that the accused only pretended to agree to the conspiracy as opposed to sincerely conspiring, they may not be found guilty. Notably, a member of a conspiracy who refuses to execute the plan is still considered guilty.
Legal Review By:
Criminal Defence Lawyer (B.A., L.L.B.)
Jonathan Pyzer, B.A., L.L.B, distinguished McGill University and University of Western Ontario alumnus, is a dedicated criminal defence lawyer throughout Ontario. Co-founder of Kostman & Pyzer, Barristers, he focuses on defending individual rights.