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Criminal - Conspiracy. R. v. Jaser
In R. v. Jaser (Ont CA, 2024) the Ontario Court of Appeal dismissed a terrorism-related criminal appeal. Here the court extensively reviews a trial judge's jury charge on conspiracy:[229] The trial judge began with an explanation of conspiracy. He told the jury:A “conspiracy” is an intentional agreement to commit a crime with the further intention of actually carrying out that crime (which is referred to as the “unlawful object”). [230] The trial judge told the jury that agreement and an intention to agree were the essential elements of conspiracy. ....
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[233] The trial judge also told the jury that proof of an agreement required:... a minimum of two persons, since one person alone cannot agree or conspire, and those two persons must take the positive step of deliberately agreeing that they will act together in order to commit a specified crime ...
The positive step of deliberately agreeing that they will act together in order to commit a specified crime… Nothing more than that. An agreement means more than mere negotiations and it means more than mere knowledge about some plan or mere acquiescence in some plan. It is an act of positively agreeing with the general nature or criminal object of the plan and agreeing to act together in order to bring about that “unlawful object.” ....
[235] The trial judge then turned to the intention component of the crime of conspiracy:The accused must intend to carry out the agreement. This element relates to the subjective state of mind of the accused. In other words, it is a mental element. The agreement must not be mere talk or bravado or feigned enthusiasm or mere negotiating. This is obviously the critical issue for Mr. Jaser. Feigned enthusiasm doesn’t get you there; we’re talking about a true intention. Rather, there must be a genuine intention that the parties to the agreement will put it into effect. ....
[237] The trial judge concluded his instructions on the meaning of intention as applied to conspiracy in these words:Based on all the evidence, that is relevant and admissible in relation to each accused, ask whether the Crown has proved beyond reasonable doubt that the particular accused formed the intent to carry out an agreement to commit the “unlawful object” ... [238] After explaining the elements of agreement and intention to the jury, the trial judge focused on the requirement that the Crown prove beyond a reasonable doubt that each of the accused was a member of the alleged conspiracy. To explain to the jury how it should determine membership, the trial judge understandably returned to the three-step Carter instruction he had provided to the jury when explaining hearsay evidence.
[239] The trial judge reminded the jury that the Crown alleged only a two-person conspiracy. He repeated his instructions applicable to steps two and three of the Carter instruction. He specifically told the jury that if it was not satisfied on the balance of probabilities that either Mr. Jaser or Mr. Esseghaier was a probable member of the conspiracy, based on their own acts or declarations, the jury must acquit that accused. He once again cautioned the jury against conflating their inquiry into the existence of the agreement and the separate inquiry based on different evidence into the accused’s membership in the agreement.
[240] The trial judge told the jury to deliberate separately with respect to each accused. He said:You can only find an accused guilty of this specific conspiracy as charged, if you are satisfied beyond a reasonable doubt that one accused conspired with the other accused. You cannot find an accused guilty on the basis that he conspired with someone else… [Mr. Esseghaier] is only charged with conspiring with Mr. Jaser and Mr. Jaser is only charged with conspiring with Mr. Esseghaier…
However, I stress that you must deliberate separately in relation to each accused. There are different bodies of evidence admissible against each accused and the verdict you reach in relation to one accused does not mean that you must reach the same verdict in relation to the other accused. ....
[243] During the jury’s deliberations, they asked for a further instruction and clarification of the charge concerning the element of intention in the conspiracy charges. The trial judge responded:It is important to remember that the element of intention relates to the element of agreement. The two go together because the agreement and the intention must both co-exist at some point in time. In addition, the element of intention actually refers to the agreement. I am going to set out some of the well-known and authoritative pronouncements about the element of intention and you will see that it is always interwoven with the element of agreement. That is because the two elements must relate to one another and they must coincide at the same point in time.
Accordingly, in order to understand the element of intention you must go back to the instruction about the element of agreement... An agreement in the law of conspiracy means a positive meeting of minds or true consensus between two persons in which they jointly agree to act together in order to bring about a specific crime… The element of intention means that the two parties to the agreement genuinely meant to bring about that crime as opposed to feigning such an intention while having some other intention such as making money. [244] The trial judge followed up this instruction with a further explanation as to the interaction between the agreement element and the intention element:There must exist an intention to put the common design into effect. A common design necessarily involves an intention. Both are synonymous. The intention cannot be anything else but the will to obtain the object of the agreement.
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Each of the conspirators must have a genuine intention to participate in the agreement. A person cannot be a conspirator if he or she merely pretends to agree. A conspiracy requires an actual intention in both parties at the moment of exchanging the words of agreement to participate in the act proposed. . R. v. Stordy
In R. v. Stordy (Ont CA, 2024) the Court of Appeal comments on the conspiracy offence:[54] A helpful comparison is found in the law of conspiracy. In R. v. O’Brien, 1954 CanLII 42 (SCC), [1954] S.C.R. 666, the Supreme Court of Canada held that to prove a conspiracy there must be a true agreement between the co-conspirators. An apparent “agreement” is not sufficient. Rand J. put it this way, at p. 670:I agree that a conspiracy requires an actual intention in both parties at the moment of exchanging the words of agreement to participate in the act proposed; mere words purporting agreement without an assenting mind to the act proposed are not sufficient.
He also held that the intentional uttering of the words “I agree”, rather than an actual intention to carry out the agreement, “is a refinement that seems to me to be out of place in a common law crime”: at pp. 670-671. [55] This approach was followed in United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462, at para. 88. Also, in R. v. Déry, 2006 SCC 53, [2006] 2 S.C.R. 669, Fish J. wrote, at para. 35: “It is thus well established in Canada that there must be actual agreement for a conspiracy to be formed. And actual agreement requires genuine intention.”
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