Criminal conspiracy allegations are often complex. In many conspiracy cases the evidence is circumstantial, and for the accused to be found guilty, a number of key elements need to be proven. Below are some of the most important elements of the offence.
Agreement of Parties
In order to make out a criminal conspiracy, there needs to be an agreement formed between two or more parties to commit a Criminal Code offence. The agreement is the key element of criminal conspiracy cases, and must constitute a common plan with a mutual objective amongst the parties. The law does not require that the agreement be made in writing – it can be verbal or even unspoken. These elements can thus be difficult to prove. Often the finder of fact will be asked to infer a common intention or objective based on circumstantial evidence, making the Crown’s task even more challenging.
Intention To Agree
In a conspiracy case, the prosecution must prove to the trier of fact beyond a reasonable doubt that the accused had knowledge and intent to become a party to the “common design” of the agreement. The Crown needs to show that the parties knew the exact purpose of this common design and that the objective was to commit a crime. However, a prosecutor does not have to prove that every member was involved in the execution of the crime or that they were involved for its duration. They only need to demonstrate that the conspiracy involved the accused at some stage of the scheme in order to satisfy a finding of guilt.
Some act that furthers or enables the conspiracy to proceed must also be proven. A defendant can be acquitted if the Crown cannot confirm that they took action knowing it would enable a conspiracy. It must be shown that the defendant agreed to how the crime was to be carried out.
The crux of many conspiracy charges is the absence of physical evidence. Without a written contract or a confession, prosecutors are required to convince the trier of fact based on an inference that there was an agreement.
In the digital age, however, prosecutors may have emails, texts or other digital communications setting out the alleged conspiracy. In such a case, the prosecution will still have to prove the identities of the writers.
The most obvious defence against a criminal conspiracy charge is that the agreement never existed. The defence may also argue that the accused did not know what the purpose was when they acted. However, even if the defendant was not aware that other parties were involved or that additional crimes took place, the Crown is not bound to prove subjective knowledge by the accused of those incidents. Prosecutors only must prove that there was an agreement, which the defendant knew about, and an action was taken to carry it out.
The affirmative defence of abandonment is also available to members of the conspiracy who actively took steps in a manner proportional to their participation to neutralize or otherwise cancel the effects of their involvement. However, after the Supreme Court’s decision in R v Gauthier, 2013 SCC 32,  2 S.C.R. 403, the test for abandonment is a high bar to meet.
Size of Trial
Conspiracy cases can sometimes involve joint trials of 20 or more people. Not only is this taxing on the attorneys, but it can also make it difficult to prove the agreement and common plan when there are so many different stakeholders involved. This confusion can sometimes make it difficult for the Crown to satisfy its burden of proof.
Co-Conspirator Exemption from Hearsay Rule
To determine whether there was a conspiracy, the court can take a wide range of evidence into account. Conspiracy cases allow Crown attorneys to introduce presumptively inadmissible hearsay statements made by an accused under the party admission exception to the hearsay rule. Insofar as the declarant is a party to the conspiracy, then their admissions are admissible. For all other hearsay statements, subject to other pigeonhole exceptions, the principled approach to their admissibility governs.
Criminal conspiracy charges are challenging cases which require a well-experienced legal team. If you are charged with criminal conspiracy or know someone else who is, our team is ready to help provide you with the defence you need Contact us today.