R. c. Comeau, 1991 CanLII 3541 (QC CA)
The law with respect to admissibility as evidence, against a person accused of conspiracy, of the acts and declarations of alleged co-conspirators was expounded with authority by the Supreme Court of Canada in Carter (4). In Barrow (5), at page 740, McIntyre, J., who wrote for the Court in Carter, approved the following summary by the Nova Scotia Supreme Court, Appeal Division (6) of the rule as expressed in Carter:
1. The trier of fact must first be satisfied beyond reasonable doubt that the alleged conspiracy in fact existed.
2. If the alleged conspiracy is found to exist then the trier of fact must review all the evidence that is directly admissible against the accused and decide on a balance of probabilities whether or not he is a member of the conspiracy.
(4) R. v. Carter, 1982 CanLII 35 (SCC), (1982) 1 SCR 938.
(5) R. v. Barrow, 1987 CanLII 11 (SCC), (1987) 2 SCR 694.
(6) 14 CCC (3rd) 470.
3. If the trier of fact concludes on a balance of probabilities that the accused is a member of the conspiracy then he or they must go on and decide whether the Crown has established such membership beyond reasonable doubt. In this last step only, the trier of fact can apply the hearsay exception and consider evidence of acts and declarations of co-conspirators done in futherance of the object of the conspiracy as evidence against the accused on the issue of his guilt.
In my vieu, the Carter approach does not apply to a conspiracy involving only two people, because in such a case, step one answers all the questions, and steps two and three become irrelevant. There cannot be a conspiracy of one person; two is the minimum; so if at step one the jury is satisfied beyond reasonable doubt that the alleged conspiracy in fact existed, they must have found that the accused was a member, because he was one of the two members necessary to create the conspiracy. In other words, if the only possible conspiracy was between the accused and X, the only conspiracy the jury could find involved the accused as a member. In a conspiracy of three or more people the jury, at step one, can indeed find a conspiracy without finding the accused a member, but they cannot do that in a conspiracy of only two of which the accused is one.
P.V. McWilliams, in Canadian Criminal Evidence, Canada Law Book Limited, 2nd ed., 1984 at p. 606 says:
Even though it is proved that there was a conspiracy it must still be proved that each accused was a member. When it is alleged that there were only two parties to the conpiracy obviously the proof of the conspiracy itself requires proof that both were members thereof. For a similar statement see the passage in Glanville Willlams, 218 quoting Cussen, J., in r. v. Orton et al. (1922) V.L.R. 469 at p. 474.
I am aware that there are some comments by McIntyre, J. in Barrow at pages 742 to 743 that might at first seem to be against my opinion on this point of the two-man conspiracy. However, with great respect, it seems to me that they were obiter and not ad rem, because in Barrow the conspiracy alleged was between three named persons and others unknown. Moreover, McIntyre J. deals directly with the fallacy that, where the alleged conspiracy is between only two people, one cannot be found guilty and the other not guilty. The exact point of the applicability of the three-stage approach to a conspiracy limited to two people was not squarely raised, debated, or decided.
If I am right, it follows that the trial judge's instructions were, with respect, wrong. In case of a conspiracy limited to two (in our case Ferro and Comeau), the jury must be satisfied beyond a reasonable doubt that the alleged conspiracy, necessarily involving the accused as a member, in fact existed, by means of regularly admitted evidence excluding hearsay; any reference to the probable or prima facie (7) membership of the accused in the proven conspiracy and any reference to acts and declarations of his co-conspirator (singular) as evidence of his membership, are superfluous, confusing, and wrong.
However, the Crovn's case against Appellant relies little or not at all on hearsay or the acts and declarations of Ferro in the furtherance of the common purpose; the few such acts and declarations as are in evidence (vis-à-vis the broker, Dion, the banks) did not implicate Comeau. Virtually the only evidence of the conspiracy was the testimony of Ferro, not hearsay; many overt acts to which Ferro testified were corroborated by Appellant, but his explanation of them differed. The only real issue before the jury was that of credibility, and since they found Appellant guilty of conspiracy, it is apparent that they believed Ferro and not Appellant. In our case, the judge's instructions with regard to the co-called hearsay exception for co-conspirators may have been less than perfect, but her explanation of all other aspects of conspiracy (definition, review of evidence, etc.) were irreproachable.
(7) I do not disagree with the judge's use of the term prima facie instead of probable; the word probable is not sacred. The point is that the burden is not that of beyond reasonable doubt. In this particular context, I think prima facie is close enough. It is the expression used by Mr. Justice Martin of the Ontario Court of Appeal in R. v. Barrow and Wertman, (1976) 31 C.C.C. (2d) 525 at 545, so I am in good company.
In R. v. Hobart et al, 1982 CanLII 1975 (ON CA), (1982) 65 CCC (2d) 518 (Ont. C.A.), Martin, J.A. said at pages 532 - 533:
I am also of the view that except in cases where the case against the accused depends substantially on the incriminating effect of the acts and declarations of alleged co-conspirators it is unnecessary for the trial Judge to structure his charge by inviting the jury to approach the case in two stages. Rose v. The King, supra, affords an illustration of the kind of case where such an approach might be appropriate. In the ordinary case, However, where the case against the accused does not depend substantially on the incriminating nature of the acts and declarations of alleged co-conspirators it is sufficient if the Judge at some appropriate place in the charge instructs the jury that before using the acts they must first find from the evidence directly admissible against an accused that he was involved in the conspiracy and refers the jury to the principal evidence upon which they might make that finding, as suggested in R. v. Baron and Wertman, supra.
However, even if the instruction by the trial Judge in this case as to the standard of proof required of an accused's participation in furtherance of the conspiracy could be used against him, constituted misdirection (which I find unnecessary to decide) I am satisfied that on the facts of this case it did not result in a miscarriage of justice. The trial Judge's instruction made it crystal clear that unless the jury were satisfied on all the evidence beyond a reasonable doubt of the guilt of an accused, they were required to acquit him.
I respectfully adopt those remarks and would apply the same reasoning in this case, and this whether Carter applies or not.
