Il peut y avoir complot même si outre l'accusé, aucun autre conspirateur n'est connu / Revue des règles spécifiques au complot

R. v. Root, 2008 ONCA 869

Lien vers la décision

[65]         It is elementary that the gist of the preliminary crime of conspiracy is the agreement.  The actus reus of the offence is the fact of the agreement.  Papalia v. R.; R. v. Cotroni, 1979 CanLII 38 (SCC), [1979] 2 S.C.R. 256, at p. 276.  In conspiracy cases, a distinction exists between an intention to agree, on the one hand, and an agreement, on the other. On its own, an intention to agree is not sufficient to establish the actus reus of conspiracy.  R. v. O’Brien, 1954 CanLII 42 (SCC), [1954] S.C.R. 666 at pp. 668-9.

[66]         For there to be a conspiracy, the prosecutor must prove beyond a reasonable doubt:

i.         an intention to agree;

ii.         completion of the agreement; and

iii.      a common (unlawful) design

United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462, at para. 86 at p. 511.  Further, there must exist an intention to put the common (unlawful) design into effect.  Dynar, at para. 86; O’Brien at p. 668.

[67]         In conspiracy cases, the important inquiry is not about the acts done in pursuit of the agreement, but whether there was, in fact, a common agreement in the first place to which the acts are referable and to which the alleged conspirators were privy.  Papalia, at pp. 276-277; O’Brien at p. 668; Dynar at para. 87; R. v. Douglas, 1991 CanLII 81 (SCC), [1991] 1 S.C.R. 301 at p. 316.  Said somewhat differently, the focus of the inquiry is on whether and, if so, on what was agreed, not on what was done, although what was done in furtherance may help to establish the core element of conspiracy – the agreement.  Douglas at p. 40; David Omerod, ed., Smith and Hogan Criminal Law, 11^th ed. (New York: Oxford University Press, 2005) at p. 374.

[68]         It is trite that the roles of individual conspirators may differ widely. The participants need not know each other, nor need they communicate directly with one another.  Each need not know the details of the common scheme, though each must be aware of the general nature of the common design and be an adherent to it. R. v. Longworth (1982), 1982 CanLII 3764 (ON CA), 67 C.C.C. (2d) 554 (Ont. C.A.) at pp. 565-6.  Each conspirator does not have to commit or intend to commit personally the offence the conspirators have agreed to commit. R. v. Genser (1986), 1986 CanLII 4729 (MB CA), 27 C.C.C. (3d) 264 (Man. C.A.) at p. 268 affirmed 1987 CanLII 5 (SCC), 1987 39 C.C.C. (3d) 576 (S.C.C.).

[69]         Where, as here, an indictment alleges that named persons conspired together and with other unknown persons, proof of participation of all named conspirators is not essential.  R. v. Paterson (1985), 1985 CanLII 167 (ON CA), 44 C.R. (3d) 150 (Ont. C.A.) at pp. 156-7.  Further, where the evidence establishes the conspiracy alleged between a named person and a person or persons unknown, the fact that the evidence fails to establish another named person’s complicity does not entitle the first named to an acquittal.  Paterson at p. 156.

[70]         The fact that an agreement to commit a crime is conditional on the occurrence or non-occurrence of some event does not necessarily mean that there is no unlawful agreement.  However, negotiations alone will not suffice, and sometimes it may be very difficult to determine whether the parties are merely negotiating or have agreed to do so something if it is possible or propitious to do so.  R. v. Mills (1962), 47 Cr. App. R. 49, at pp. 54-55 (C.C.A.); R. v. Saik, [2007] 1 A.C. 18, at para. 5 (H.L.); Smith and Hogan, at pp. 363 and 371; Glanville Williams, Textbook of Criminal Law, 2^nd ed. (London: Steven & Sons, Ltd., 1983) at p. 351; and R. v. Walker, [1962] Crim. L. R. 458 (C.C.A.). Indeed every agreement about future conduct is hedged about with conditions, for example, to burgle premises if the owner is not home, or to steal something if anything of value can be found. But in each case, there is nonetheless an unlawful agreement despite conditions attached to its execution.

[71]         Conspiracy, like attempt, is a crime of intention.  Its factual element or actus reus is established upon proof of the agreement to commit the predicate offence, for example to possess or launder the proceeds of crime.  The factual element in the conspiracy need not correspond with the factual elements of the substantive offence that is the object of the conspiracy. The goal of the agreement, the commission of the substantive offence, is part of the mental element or mens rea of the offence of conspiracy.  Dynar at para. 103. Where the goal of a conspiracy involves the commission of a substantive offence of which knowledge of certain circumstances is an essential element, the mental element is belief. The subjective state of mind of anyone who conspires with others to launder money is the belief that the money has illegitimate origins.  Dynar at para. 108.

[72]         Among the preliminary or inchoate crimes, conspiracy, although requiring two or more genuine participants, is more “preliminary” than an attempt: Dynar at para. 87. Conspiracy is also a continuing offence.