What is a Conspiracy

A conspiracy is an agreement of two or more people to commit an unlawful act. The offence of Conspiracy criminalizes the agreement to commit a crime even if no actions are taken to further the conspiracy. For most offences, the maximum penalties for conspiring to commit an offence are the same as the underlying offence.

Definition a Conspiracy

A conspiracy is an agreement of two or more people to commit an unlawful act.

In order to prove someone is guilty of a conspiracy the Crown [Prosecution] must prove the following:

1. That the accused intended to enter into an agreement with another person;
2. That the accused entered into an agreement with another person;
3. That the agreement in question was to complete a common unlawful design; and
4. That the accused intended to put the common unlawful design into effect (e.g. they did not just pretend to agree) [See United States of America v. Dynar, [1997] S.C.J. No. 64 at paras 86, 88].

Conspiracy criminalizes the agreement to commit and unlawful. It is not necessary for the Crown to show that the accused took any actual steps to further the conspiracy [See e.g. R. v. Douglas, [1991] S.C.J. No. 16].

What are the Potential Sanctions for Conspiracy Offences

Under s. 465(1)(a) of the Criminal Code Conspiracy to Commit Murder is punishable by a maximum term of life of imprisonment.

 Under s. 465(1)(b) of the Criminal Code Conspiracy to Prosecute an Innocent Person is punishable by a summary conviction, or a maximum sentence of 5 or 10 years imprisonment (depending on the maximum sentence that was faced by the wrongly accused).

Under s. 461(c) of the Criminal Code the penalty for conspiring to commit any other indictable offence is the same as if someone was convicted of committing that indictable offence.

Under s. 461(d) of the Criminal Code, the penalty for conspiring to commit any other summary offence is a summary conviction (i.e. the maximum penalty is 2 years less a day jail and/or a $5,000 fine per s. 787 (1) of the Criminal Code). For certain summary offences, this may be a greater penalty than the penalty for the offence itself.

What Defences are Available during a Conspiracy

As in every case, the defences that may be available to you depend on the specific facts of your case.

The following list includes some defences that may be available in a Conspiracy  Case:

Factual Innocence: If the Crown is unable to prove the following elements beyond a reasonable doubt, they will have failed to discharge their burden:

• the identity of the offender;
• the date and time of the incident and jurisdiction;
• that the accused intended to enter into an agreement with another person;
• that the accused entered into an agreement with another person;
• that the agreement in question was to complete a common unlawful design; and
• that the accused intended to put the common unlawful design into effect (e.g. they did not just pretend to agree) [See United States of America v. Dynar, [1997] S.C.J. No. 64 at paras 86, 88].

Duress: The defence of duress may be invoked when someone commits an offence under compulsion by threats of death or bodily harm. For this defence to apply, the threat and crime must be closely connected in time, and the accused must have no safe avenue of escape.

Necessity: The defence of necessity may be invoked in emergency-type situations. In R v Latimer, 2001 SCC 1, the Supreme Court of Canada set out the three factors that must be present for the defence of necessity to succeed in a case:

• The accused must be in a situation of imminent peril or danger;
• The accused must have had no reasonable legal alternative to breaking the law; and
• The harm inflicted by the accused must be proportional to the harm avoided by the accused.

Violation of Charter Rights: Under the Canadian Charter of Rights and Freedoms, individuals are afforded specific rights, including:

• the right against unreasonable search and seizure;
• the right to not be arbitrarily detained;
• the right to be informed promptly of the reasons for arrest;
• the right to retain and instruct counsel without delay; and
• the right to be tried within a reasonable time.

A successful Charter challenge may also result in a stay of proceedings, or evidence from your case being excluded.

Alternative Outcomes

In some instances, it is possible that your charge(s) may be resolved without going to trial or pleading guilty. The availability of these alternative outcomes depends on a number of factors; each case is fact-specific. The following is a list of examples of alternative outcomes in a criminal case:

Withdrawal of Charge(s): The Crown may decide to withdraw a defendant's charge(s) where:

• The Crown does not believe they have a reasonable prospect of conviction at trial, due to various reasons; or
• It is not in the public interest to prosecute.

Stay of Proceedings: A stay of proceedings effectively stops a legal proceeding in its tracks. There are two types of stays of proceedings, a judicial stay and crown stay of proceedings. A judicial stay is a rarely granted remedy which permanently ends a prosecution (see e.g. Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 at para 83). The Crown may also choice to stay a proceeding. The difference between a Crown stay of proceedings and a withdrawal is that, with a stay of proceedings, the Crown may decide to continue the proceedings at a later date.

Diversion: Diversion (often referred to as "Direct Accountability" or "DAP" ) is an alternative way of resolving charges in the criminal justice system, and provides offenders with an opportunity to take accountability for their actions without incurring a criminal record. Diversion is usually reserved for minor offences and first-time offenders. To successfully complete a diversion program involves some form of upfront work by the defendant, including but not limited to:

• A written apology letter;
• Charitable donation(s);
• Community service/volunteer hours;
• Counselling and/or programming; and
• Restitution/compensation.

Next Steps

The information above provides a general overview of conspiracy offences, as well as potential penalties and defences. However, no two cases are alike. Every conspiracy case is fact-specific and ranges in complexity, depending on the issues at play.

Are you subject to charges relating to an alleged conspiracy offence? Contact our office today at 416-924-5969 to learn more about how we can help you. Our team of lawyers is prepared to conduct a thorough review of your situation and develop an approach tailored to your needs. Obtaining proper legal representation is the first step in preparing a successful defence.