The Law Of Criminal Conspiracy - A Brief Introduction
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The essential elements of a conspiracy are:
- The intention to agree;
- Completion of the agreement; and
- A common design to do something unlawful
The offence is complete before any acts, which go beyond
mere preparation, are taken to put the design into effect – more preliminary than attempt crimes
Impossibility (factual) affords no defense to conspiracy
In R v. Gralewicz, the appellants were charged with unlawfully
conspire to prevent members of a union from participating in the lawful
activities of their union. The facts of the case, and the reasoning provided by
counsel for the respondent are not important. Suffice it to say that this case centered upon
the issue of whether or not the meaning of “unlawful purpose” alluded to in the
section of the Code (namely, sec.
465) could include offences that were unlawful under the common law. The respondents argued that since the crime of
conspiracy, as enacted by the Code,
developed out of the common law, then the law necessarily has to include
actions which the common law defined to be “unlawful purposes” for the purpose
of a conspiracy charge. The Supreme Court agreed that the law of
conspiracy, as enacted by the Code,
did evolve from the common law, it did not agree that its mere enactment into a
statutory offence would have the effect of extending its scope beyond that
which the Code covered. Their
Justiceships specifically cited sec. 8 of the Code as restricting them (the courts) from creating new criminal
offences at common law, and removing from Canadian law all common law offences
that are of force, or were in force, from the law of England. As such, the conduct alluded to in the
indictment (namely, the conspiracy to prevent union members from exercising
their rights), was not, of itself, an unlawful purpose or act within the
meaning of the Code, or any other
Federal or Provincial statute. As such, their Justiceships concluded that in order for a charge of conspiracy to
stand, the unlawful purpose must be something prohibited by law.
In R v. Innocente, the appellant sought the leave of the Nova
Scotia Court of Appeal against a charge by the Crown of conspiracy to traffic
in narcotics. The appellant alleges that he had already been in jeopardy for
this behaviour at the earlier trial and had been convicted of it, and so could
not be placed on trail a second time for the same offence. The facts are that
the appellant was charged and convicted for conspiring to traffic in narcotics
in an earlier trial, but that that indictment only specified cannabis resign as
the object of the conspiracy. The
new indictment includes the trafficking of cocaine. As such, the Crown contends
that the inclusion of a new object warrants a separate charge, distinct from
the first. Thus, the question for the Court of Appeal in
this case is whether new evidence that is pertinent to the object of the
conspiracy (Ex. the inclusion of a new drug) can give rise to separate charges
if there is no evidence (or if there is evidence that fails to pass the
reasonable doubt standard) that the agreements for the different objects took
place and materially different times. The Court of Appeal, drawing on earlier decisions
such as R v. Saunders, concluded
that the inclusion of a new object into the conspiracy could not warrant new
charges. They stated that without evidence proving that the agreements to
traffic the different drugs were made at materially different times, then the
conspiracy to traffic both drugs must be taken to have occurred at the same
time, and consequently, only warrant one charge. It is up to the Crown upon
discovery of the new object to the conspiracy to file a motion with the court
to amend the charges so as to include the new object.
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