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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.