R. v. Déry, 2006 SCC 53, [2006] 2 SCR 669

                                                 SUPREME COURT OF CANADA

Between:

Jacques Déry

Appellant

and

Her Majesty The Queen

Respondent

‑ and ‑

Attorney General of Canada and

Canadian Civil Liberties Association

Interveners

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

______________________________

R. v. Déry, [2006] 2 S.C.R. 669, 2006 SCC 53

Jacques Déry                                                                                                    Appellant

v.

Her Majesty The Queen                                                                               Respondent

and

Attorney General of Canada and

Canadian Civil Liberties Association                                                           Interveners

Indexed as:  R. v. Déry

Neutral citation:  2006 SCC 53.

File No.:  30948.

2006:  February 16; 2006:  November 23.

Present:  McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

on appeal from the court of appeal for quebec

Criminal law — Attempted conspiracy — Whether offence of attempted conspiracy to commit substantive offence exists in Canadian criminal law. 

D and S were charged with conspiring to commit theft and conspiring to possess stolen liquor.  The trial judge found that no agreement had been established between the two men to steal or possess liquor and acquitted them of conspiracy, but found their actions more than merely preparatory to conspiracy and convicted them of attempting to conspire.  A majority of the Court of Appeal affirmed their convictions.  D alone appealed to this Court.

Held:  The appeal should be allowed.

D’s convictions should be set aside and acquittals entered.  An attempt to conspire to commit a substantive offence is not an offence under Canadian law.  Criminal liability does not attach to fruitless discussions in contemplation of a substantive crime that is never committed, nor even attempted, by any of the parties to the discussions.  Here, though D discussed a crime hoping eventually to commit it with S, neither D nor S committed, or agreed to commit, the crimes they had discussed.  The criminal law does not punish bad thoughts of this sort that were abandoned before an agreement was reached, or an attempt made, to act upon them. [23] [37] [51‑52] 

Furthermore, acts that precede a conspiracy are not sufficiently proximate to a substantive offence to warrant criminal sanction.  Given that conspiracy is essentially a crime of intention, it is difficult to reach further than the law of conspiracy already allows.  Even if it were possible, it has never been the goal of the criminal law to catch all crime “in the egg”.  In this sense, conspiracies are criminalized when hatched.  And they can only be hatched by agreement.  This basic element of conspiracy exposes the otherwise hidden criminal intentions of the parties to it and this demonstrates their commitment to a prohibited act.  By contrast, the criminal law intervenes later in the progression from thought to deed where someone acts alone.  Overt steps are then thought necessary to disclose and establish with sufficient certainty the criminal intention that is an essential element of the attempt to commit an offence.  By its very nature, moreover, an agreement to commit a crime in concert with others enhances the risk of its commission.  Early intervention through the criminalization of conspiracy is therefore both principled and practical.  Likewise, the criminalization of attempt is warranted because its purpose is to prevent harm by punishing behaviour that demonstrates a substantial risk of harm.  However, when applied to conspiracy, the justification for criminalizing attempt is lost, since an attempt to conspire amounts, at best, to a risk that a risk will materialize. [45‑50]

Cases Cited

Referred to:  R. v. Dungey (1979), 51 C.C.C. (2d) 86; R. v. May (1984), 13 C.C.C. (3d) 257; R. v. Kotyszyn (1949), 8 C.R. 246, 95 C.C.C. 261; R. v. Hamilton, [2005] 2 S.C.R. 432, 2005 SCC 47; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; People v. Schwimmer, 411 N.Y.S. 2d 922 (1978); United States of America v. Dynar, [1997] 2 S.C.R. 462; R. v. O’Brien, [1954] S.C.R. 666; R. v. Lessard (1982), 10 C.C.C. (3d) 61; R. v. Campeau, [1999] Q.J. No. 5436 (QL); Parshu Ram v. R. (1967), 13 F.L.R. 138; Kabunga s/o Magingi v. R. (1955), 22 E.A.C.A. 387; Harris v. R. (1927), 48 N.L.R. 330; R. v. Cline (1956), 115 C.C.C. 18; R. v. Chan (2003), 178 C.C.C. (3d) 269.

Statutes and Regulations Cited

Crimes Act 1958 (Vict.), s. 321f(3) [ad. by Crimes (Conspiracy and Incitement) Act 1984 (Vict.), s. 7(2)].

Criminal Code, R.S.C. 1985, c. C‑46, ss. 9 (a), 22(3) , 24 , 463 (d), 464 , 465(1) (c).

Criminal Code 2002 (A.C.T.), s. 44(10).

Criminal Code Act 1995 (Cth.), s. 11.1(7).

Criminal Law Act 1977 (U.K.), 1977, c. 45 [am. by Criminal Attempts Act 1981 (U.K.), 1981, c. 47].

Authors Cited

American Law Institute.  Model Penal Code and Commentaries (Official Draft and Revised Comments), Part I, vol. 2.  Philadelphia:  The Institute, 1985.

Côté‑Harper, Gisèle, Pierre Rainville et Jean Turgeon.  Trait_ de droit p_nal canadien, 4^e éd. Cowansville, Québec:  Yvon Blais, 1998.

Mewett, Alan W., and Morris Manning.  Mewett & Manning on Criminal Law, 3rd ed. Toronto:  Butterworths, 1994.

Stuart, Don.  Canadian Criminal Law:  A Treatise, 4th ed.  Scarborough, Ont.:  Carswell, 2001.

Zimmerman, Nick.  “Attempted Stalking:  An Attempt‑to‑Almost‑Attempt‑to-Act” (2000), 20 N. Ill. U. L. Rev. 219.

APPEAL from a judgment of the Quebec Court of Appeal (Mailhot, Forget and Morin JJ.A.), [2005] R.J.Q. 1417, 197 C.C.C. (3d) 534, 31 C.R. (6th) 322, [2005] Q.J. No. 5350 (QL), 2005 QCCA 483, affirming the accused’s convictions (2002), 7 C.R. (6th) 325, [2002] Q.J. No. 3549 (QL).  Appeal allowed.

Philippe Larochelle, for the appellant.

Nicolas Poulin, for the respondent.

François Lacasse, for the intervener the Attorney General of Canada.

Christopher A. Wayland and Kristian Brabander, for the intervener the Canadian Civil Liberties Association.

The judgment of the Court was delivered by

Fish J. —

I

1                    Jacques Déry stands convicted of attempting to conspire to commit theft, and of attempting to conspire to unlawfully possess the proceeds.

2                    Never before has anyone been convicted in Canada of an attempt to conspire to commit a substantive offence of any sort.  That should come as no surprise: Attempting to conspire to commit a substantive offence has never previously been recognized as a crime under Canadian law.

3                    I would decline to do so now.

4                    Accordingly, I would allow the appeal, set aside Mr. Déry’s convictions and order that acquittals be entered instead.

II

5                    December brings with it, in Canada and elsewhere, a holiday season widely and joyously celebrated by “raising a glass”.  Liquor merchants must frequently replenish their shelves to keep the glasses filled.  In the Quebec City region, the Société des alcools du Québec (“SAQ”) is forced by the increased demand to stock more of its products than its secure warehouses can contain.  The inevitable overflow is stored temporarily in trailers parked outdoors at an SAQ compound.

6                    An unrelated investigation resulted in the interception of discussions  between Mr. Déry, Daniel Savard and others, concerning the possibility of stealing this liquor stored outdoors.  On the strength of the intercepted conversations, Messrs. Déry and Savard were both charged with conspiracy to commit theft and conspiracy to possess stolen goods.

7                    There was no evidence that either accused had taken any steps to carry out the proposed theft, and the trial judge was not persuaded that they had at any point agreed to steal or possess the liquor that was the object of their covetous musings: (2002), 7 C.R. (6th) 325.  In the absence of a proven agreement, the judge quite properly felt bound to acquit the accused of the conspiracies charged.  On each count, however, he convicted both co-accused of attempting to conspire, which he believed to be an included offence. 

8                    A majority of the Court of Appeal of Quebec affirmed their convictions at trial: [2005] Q.J. No. 5350 (QL), 2005 QCCA 483; [2005] Q.J. No. 5351 (QL), 2005 QCCA 484.  Forget J.A., dissenting, would have allowed their appeals on the ground that attempted conspiracy is an offence unknown to Canadian law. 

9                    This further appeal, by Mr. Déry alone, comes to this Court as of right.  The decisive issue is whether there is any legal basis for concluding that attempt to conspire to commit an indictable offence is a crime in Canada.  In the absence of a statutory basis for concluding that the crime exists, there is of course no need to find authority that it does not: s. 9 (a) of the Criminal Code, R.S.C. 1985, c. C-46 , makes clear that no one in Canada may be convicted of “an offence at common law”.  To affirm Mr. Déry’s convictions, we must therefore find that attempt to conspire has until now lain dormant within the statutory confines of the Criminal Code , ready to be roused by a proper sounding of its governing provisions.

10                Like Forget J.A., I would let sleeping laws lie.

III

11                The alleged crime of attempting to conspire has received sparse judicial consideration in Canada.

12                R. v. Dungey (1979), 51 C.C.C. (2d) 86 (Ont. C.A.), is the most relevant reported decision.  Dungey, a lawyer, instructed one of his clients to seek a backdated legal-aid certificate covering services for which he had already been paid in full.  Dungey’s scheme failed.  His client did apply for and obtain legal aid, but the certificate granted was for future services only.

13                Dungey was charged with conspiracy to defraud.  No charges were laid against the client.  The trial judge was not persuaded that the client had agreed to the scheme.  He therefore acquitted Dungey, since there could be no conspiracy without an unlawful agreement.

14                The Crown appealed but did not challenge Dungey’s acquittal on the conspiracy charge, seeking instead a conviction for attempted conspiracy.  In the Crown’s view, though no agreement had been established, Dungey had attempted to conspire to defraud the Law Society of Upper Canada by soliciting his client’s participation in the fraud.

15                The Court of Appeal dismissed the Crown’s appeal.  Writing for a unanimous court, Dubin J.A. (later C.J.O.) traced the history and considered the purpose of the offence of conspiracy.  He then stated:

If the offence of conspiracy is an auxiliary to the law which creates the crime agreed to be committed, and if the object of making such agreements punishable is to prevent the commission of the substantive offence before it has even reached the stage of an attempt, there appears to be little justification in attaching penal sanction to an act which falls short of a conspiracy to commit the substantive offence.

In the instant case the substantive offence was fraud. To hold that there is an offence of attempting to conspire to defraud is tantamount to convicting a person of an attempt to attempt to defraud. [p. 95]

16                Dubin J.A. concluded that “there is no such offence as attempt to conspire to commit a further substantive offence” (p. 98), “leav[ing] for further consideration whether there could be an attempt to conspire where the conspiracy is the substantive offence, and the question of remoteness would not arise, as distinguished from a case such as this where the offence alleged was a conspiracy to commit a further substantive offence” (p. 99).

17                This case, like Dungey, concerns an attempt to conspire to commit a substantive offence.  The trial judge nonetheless found that Dungey turned on its own particular facts and had no application here. In his view:

[translation] It is true that an attentive reading of [Dungey] may lead to the conclusion — a conclusion that some in Canada have perhaps too quickly arrived at — that this offence does not exist.  However, the Court of Appeal did not itself rule on its existence, having determined that the facts did not lend themselves to such a judgment. [para. 38]

18                The majority of the Quebec Court of Appeal quoted this passage with approval ([2005] Q.J. No. 5350 (QL), at para. 32) and found that Dubin J.A., in the passage I have quoted at para. 17, left open the decisive question in this case: Is an attempt to conspire to commit a substantive offence — here, theft and culpable possession — a crime in Canada? 

19                On the contrary and with respect, this is the very question answered by the Court of Appeal in Dungey.  It answered that question in the negative, as would I, and it did so in the clearest of terms, which I again reproduce: “[T]here is no such offence as attempt to conspire to commit a further substantive offence” (p. 98).

20                The question left open by Dungey relates instead to offences such as conspiracy in restraint of trade and conspiracy to commit treason or seditious conspiracy, where conspiracy is the substantive offence: see Mewett & Manning on Criminal Law (3rd ed. 1994), at p. 345; D. Stuart, Canadian Criminal Law: A Treatise (4th ed. 2001), at p. 705, fn. 424.  And that question, unlike the one that concerns us here, remains open to this day.

21                In support of its conclusion, the majority of the Court of Appeal referred as well to R. v. May (1984), 13 C.C.C. (3d) 257 (Ont. C.A.).  The conviction in May was for conspiracy to obstruct justice.  Obstruction of justice, a distinct offence under the Criminal Code , is framed in the language of attempt:  “[e]very one who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice” (s. 139(1)  (formerly s. 127(1) )).  It was argued on that basis that the charge of conspiracy to obstruct justice impermissibly combined two forms of inchoate liability.  This was said to violate the policy considerations underlying Dungey.

22                In brief reasons delivered orally, Martin J.A. found it unnecessary to consider in detail the reasons set out in Dungey.  Speaking for a unanimous court, he considered it sufficient to say that obstruction of justice was a substantive offence and that the accused’s submission failed for that reason alone.

23                Nothing in May supports the view that it is a crime in Canada to attempt to conspire to commit a substantive offence.  On the contrary, Martin J.A. specifically noted that the court in Dungey “held that the offence of attempting to conspire to commit a substantive offence is not an offence under Canadian law” (p. 260 (emphasis in original)).  And, in characterizing obstruction of justice as a substantive offence, he simply applied the legal principles set out in Dungey to the facts in May.  Despite the inchoate elements of its statutory definition, obstruction of justice was held to fall within the exception posited by Dubin J.A. in Dungey.

24                I turn now to a third relevant Canadian decision.

25                In R. v. Kotyszyn (1949), 8 C.R. 246, 95 C.C.C. 261 (Que. C.A.), the accused was a suspected professional abortionist (“avorteuse professionnelle”).  She was approached by an undercover police officer who claimed to be pregnant and in need of an abortion.  The accused agreed to perform the abortion for $100, which was paid by the “boyfriend” — a sergeant-detective.  The accused and her “pregnant” client then entered a bedroom.  With her implements visibly laid out, the accused declared that she was ready to proceed.  The officer thereupon revealed her true identity, arrested the accused and charged her with: (1) conspiracy to commit an abortion; and (2) attempted conspiracy to commit that same indictable offence.

26                At the close of the Crown’s case, acquittals were entered on both charges.  Agreement — an essential ingredient of conspiracy — was not made out, since the apparent co-conspirator, an undercover police officer, only wished to set a trap and not to have an abortion.  Conceding that no conviction could therefore lie on the first charge, the Crown appealed only the acquittal on the charge of attempted conspiracy.  Though for somewhat different reasons, all five members of the court agreed that the appeal should be dismissed.

27                Mackinnon J. (ad hoc), with whom Galipeault and Barclay JJ.A. concurred, held that the charge did not properly attach to the facts of the case.  The accused had gone much further than a mere attempt to agree and, if anything, the charge ought to have been for conspiracy.  On that charge, however, she had already been finally acquitted.  In this light, the Crown’s appeal on the count for attempt was seen as an improper endeavour to circumvent the accused’s acquittal on the substantive charge.

28                Of the five members of the court, only Gagné J.A. discussed attempted conspiracy.  He held that attempting to conspire was a crime:

[translation] Certainly, there may be an attempt to conspire.  A presents herself at the home of B and suggests to her an agreement to commit an offence.  B refuses.  There is no conspiracy, but an attempt on the part of A, an attempt which did not succeed.  If she succeeded, that is to say, if there had been acquiescence, the offence of attempt disappeared; it is that of conspiracy that is committed. [p. 265 C.C.C.] 

Gagné J.A. found, however, that this construct could not be applied to the case before him, since the accused had not proposed the agreement, but merely acquiesced in the officer’s proposition:           [translation] “It is not she who suggested the agreement, it is the other person.  She acquiesced.” (p. 265 C.C.C.)

29                By emphasizing offer rather than acquiescence as the touchstone for responsibility, Gagné J.A. focussed on enticing another into crime — the evil meant to be caught by counselling.  Under our law, it will be remembered, “counsel” includes “procure”, “solicit” or “incite”: see s. 22(3)  of the Criminal Code .  By treating counselling and attempt as legal equivalents, Gagné J.A. mistook counselling for attempted conspiracy.

30                To conflate counselling and attempt to conspire is to rely on semantics where principle fails.  While it may well be true that to counsel another to conspire is, in the ordinary sense of the word, to “attempt” (or try) to form a conspiracy, not all efforts to conspire amount, in law, to counselling.  Yet we are urged by the Crown in this case to recognize attempted conspiracy as an offence different from, and wider than, the established offence of counselling.

31                In R. v. Hamilton, [2005] 2 S.C.R. 432, 2005 SCC 47, this Court held that “the actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence” (para. 29 (emphasis in original)): see also R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 57, per McLachlin C.J.  This relatively high threshold for the actus reus of incitement is an essential safeguard.  As Charron J. (dissenting, but not on this point) observed at para. 72, “[i]t is th[e] concern of potential overbreadth that informed this Court’s adoption in Sharpe of a more restricted meaning of counselling.”  Charron J. noted as well that counselling an offence not committed is rarely prosecuted (para. 48).

32                Here, the Crown proposes an actus reus for attempted conspiracy that, if not open-ended, is much broader than the actus reus of counselling.  Even a tentative and vain effort to reach an unlawful agreement would suffice (respondent’s factum, at para. 40).  The safeguard that governs counselling would thus be removed for attempted conspiracy.  Even if we were to criminalize an attempt to conspire as a form of counselling, I fear that the Crown attempts in this case to squeeze from it more than it yields.

33                I also note that the court in Kotyszyn declined to recognize attempt to conspire as a way of addressing what are sometimes called “unilateral conspiracies”.  The justification for criminalizing such acts would be that, from the perspective of a compliant accused, the degree of moral turpitude is no different when an accepted invitation to crime is genuine than when it is made by an agent provocateur or double agent.  There is at least a baseline of moral blameworthiness in such cases because the accused has agreed to join an ostensibly criminal enterprise.  Arguably, the offender should thus be punished equally in both cases. 

34                In the United States, a free-standing doctrine of unilateral conspiracy has bridged what was seen in that country as a gap in the law of conspiracy.  Would-be conspirators are guilty of unilateral conspiracy where there is no true conspiracy because the agreement of their interlocutors is feigned: see American Law Institute, Model Penal Code and Commentaries (Official Draft and Revised Comments) (1985), Part I, vol. 2, § 5.04(1)(b).  As one American court noted, the unilateral conspiracy approach rendered attempt to conspire superfluous:  People v. Schwimmer, 411 N.Y.S. 2d 922 (App. Div. 1978), at pp. 925-28.

35                A consistent line of case law in this country precludes us from adopting the American approach.  Most notably, the recent decision of this Court in United States of America v. Dynar, [1997] 2 S.C.R. 462, takes a strictly bilateral view of conspiracy.  See also R. v. O’Brien, [1954] S.C.R. 666, at p. 670, quoted with approval and reaffirmed in Dynar, at para. 88; R. v. Lessard (1982), 10 C.C.C. (3d) 61 (Que. C.A.); R. v. Campeau, [1999] Q.J. No. 5436 (QL) (C.A.).  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.  The unilateral conspiracy doctrine, however well established in the American legal environment, is thus not viable here.

36                Recognition of attempted conspiracy as a crime might well capture cases of feigned agreement, but this sort of change in the law is best left to Parliament.  Moreover, the evil targeted by criminalizing unilateral conspiracies will in any event normally be caught under our law by the offence of “counselling an offence not committed”.  That offence, to which I referred earlier, is set out in s. 464  of the Criminal Code :

464.  Except where otherwise expressly provided by law, the following provisions apply in respect of persons who counsel other persons to commit offences, namely,

(a) every one who counsels another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and liable to the same punishment to which a person who attempts to commit that offence is liable; and

(b) every one who counsels another person to commit an offence punishable on summary conviction is, if the offence is not committed, guilty of an offence punishable on summary conviction.

37                It seems to me as well that this would be an inappropriate occasion for this Court to recognize attempt to conspire as a crime for unilateral conspiracies, even if it were within our power and we were inclined on principle to do so.  This is not a case with only one willing party.  Nor was there any agreement, bogus or bona fide, for Mr. Déry to join.  The appeal turns entirely on whether criminal liability attaches to fruitless discussions in contemplation of a substantive crime that is never committed, nor even attempted, by any of the parties to the discussions.  I am satisfied that it does not.

38                This conclusion is consistent with the state of the law in other jurisdictions that share with us a common legal heritage — and little contemporary support for characterizing attempt to conspire as a crime.  In England, the crime of attempt to conspire was abolished by the Criminal Law Act 1977 (U.K.), 1977, c. 45, modified by the Criminal Attempts Act 1981 (U.K.), 1981, c. 47.  Most courts in the United States that have considered the existence of the alleged crime of attempt to conspire have rejected it.  See N. Zimmerman, “Attempted Stalking: An Attempt‑to‑Almost‑Attempt‑to-Act” (2000), 20 N. Ill. U. L. Rev. 219, at p. 222.  There does not appear to be a record of any convictions of attempt to conspire in either Australia or New Zealand, and the crime was specifically abolished in Australia and in several of its states: see Criminal Code Act 1995 (Cth.), s. 11.1(7); Criminal Code 2002 (A.C.T.), s. 44(10); and the Crimes Act 1958 (Vict.), s. 321f(3).

39                The Attorney General of Canada has brought to our attention decisions in other common law jurisdictions that appear to recognize the crime of attempting to conspire.  Even then, however, attempt to conspire has served essentially as a stand‑in for counselling or incitement (see Parshu Ram v. R. (1967), 13 F.L.R. 138 (Fiji C.A.), and Kabunga s/o Magingi v. R. (1955), 22 E.A.C.A. 387 (E. Afr. C.A.)), or as a means to capture unilateral conspirators (see Harris v. R. (1927), 48 N.L.R. 330 (S.C. S. Afr., Natal Prov. Div.)).  In none of these jurisdictions has attempt to conspire expanded the sphere of criminal liability in the manner urged upon us here.

IV

40                The argument in favour of attempted conspiracy is that the provisions governing inchoate liability can be stacked one upon the other, like building blocks.  Pursuant to s. 463 (d), attempting to commit any “offence for which the offender may be prosecuted by indictment” is an indictable offence punishable by half the maximum penalty for the attempted offence.  Conspiracy to commit an indictable offence is itself an indictable offence, punishable by the maximum penalty provided for the underlying substantive offence: s. 465(1) (c).  Likewise, it is argued, attempt to conspire is an offence punishable by half the penalty provided for the completed conspiracy.

41                I agree with Forget J.A. that this argument is seductive in appearance but unsound in principle (para. 79).  It assumes, but does not establish, that attempt to conspire is an offence under the Criminal Code , and it leaves unresolved the question whether the definition of attempt in s. 24  captures, as a matter of law, an attempt to conspire.

42                In virtue of s. 24 , a test of proximity separates “mere preparation” from attempt:

24. (1)  Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.

(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.

43                The intent of the legislator in s. 24(2) is to fix the threshold of criminal responsibility.  Applying the test provided, courts must situate on a continuum from antisocial contemplation to prohibited conduct — or bad thought to substantive crime — the point where the criminal law intervenes.  This continuum was aptly described a half-century ago by Laidlaw J.A. in R. v. Cline (1956), 115 C.C.C. 18 (Ont. C.A.):

The consummation of a crime usually comprises a series of acts which have their genesis in an idea to do a criminal act; the idea develops to a decision to do that act; a plan may be made for putting that decision into effect; the next step may be preparation only for carrying out the intention and plan; but when that preparation is in fact fully completed, the next step in the series of acts done by the accused for the purpose and with the intention of committing the crime as planned cannot, in my opinion, be regarded as remote in its connection with that crime.  The connection is in fact proximate. [p. 28]

44                In Dynar, Cory and Iacobucci JJ. observed that conspiracy is an act that precedes the next step after preparing to carrying out a plan:

Conspiracy is in fact a more “preliminary” crime than attempt, since the offence is considered to be complete before any acts are taken that go beyond mere preparation to put the common design into effect.  The Crown is simply required to prove a meeting of the minds with regard to a common design to do something unlawful . . . .  [Emphasis added; para. 87.]

And they explained that “the reason for punishing conspiracy before any steps are taken towards attaining the object of the agreement is to prevent the unlawful object from being attained, and therefore to prevent this serious harm from occurring” (para. 90 (emphasis added)).  The serious harm referred to is not the conspiracy but the substantive offence.  By criminalizing conspiracy, the legislature has intervened earlier along the continuum because of the increased danger represented by a cohort of wrongdoers acting in concert. See G. C_t_-Harper, P. Rainville and J. Turgeon, Trait_ de droit p_nal canadien (4th ed. 1998), at pp. 661-63.

45                The question this Court must now answer is whether acts that precede a conspiracy are sufficiently proximate to a substantive offence to warrant criminal sanction.  In Dungey, Dubin J.A. answered this question in the negative:

Notwithstanding that the charge was one of conspiracy, the conduct of the respondent should be viewed as a step preparatory to committing the substantive offence of fraud and, in that sense, what he did would be too remote to constitute an attempt. [p. 98]

In R. v. Chan (2003), 178 C.C.C. (3d) 269 (Ont. C.A.), Simmons J.A. was of a similar view:

Strictly inchoate crimes are a unique class of criminal offences in the sense that they criminalize acts that precede harmful conduct but do not necessarily inflict harmful consequences in and of themselves. It can thus be appreciated that it could extend the criminal law too far to reach behind those acts and criminalize behaviour that precedes those acts. [para. 69]

46                I agree with these observations.  In Dungey, Dubin J.A. left the door open to a possible exception for substantive conspiracy precisely because, in that context, “the question of remoteness would not arise” (p. 99) since substantive conspiracies are themselves the legislative focus of the perceived harm, and not simply the risk of its possible commission.

47                Given that conspiracy is essentially a crime of intention, and “[c]riminal law should not patrol people’s thoughts” (Dynar, at para. 169, per Major J.), it is difficult to reach further than the law of conspiracy already allows.  Even if it were possible, it has never been the goal of the criminal law to catch all crime [translation] “in the egg”, as the Attorney General for Canada has put it in this case (factum, at para. 58). In this sense, conspiracies are criminalized when hatched.  And they can only be hatched by agreement.

48                This basic element of conspiracy — agreement — exposes the otherwise hidden criminal intentions of the parties to it.  This demonstrates their commitment to a prohibited act.  By contrast, the criminal law intervenes later in the progression from thought to deed where someone acts alone.  Overt steps are then thought necessary to disclose and establish with sufficient certainty the criminal intention that is an essential element of the attempt to commit an offence.

49                By its very nature, moreover, an agreement to commit a crime in concert with others enhances the risk of its commission.  Early intervention through the criminalization of conspiracy is therefore both principled and practical.

50                Likewise, the criminalization of attempt is warranted because its purpose is to prevent harm by punishing behaviour that demonstrates a substantial risk of harm.  When applied to conspiracy, the justification for criminalizing attempt is lost, since an attempt to conspire amounts, at best, to a risk that a risk will materialize.

51                Finally, though Mr. Déry discussed a crime hoping eventually to commit it with others, neither he nor they committed, or even agreed to commit, the crimes they had discussed.  The criminal law does not punish bad thoughts of this sort that were abandoned before an agreement was reached, or an attempt made, to act upon them.

                                                                   V

52                For these reasons, I would allow the appeal, set aside Mr. Déry’s convictions and order that acquittals be entered instead.

Appeal allowed.

Solicitor for the appellant:  Philippe Larochelle, Montréal.

Solicitor for the respondent: Attorney General’s Prosecutor for Quebec, Québec.

Solicitor for the intervener the Attorney General of Canada:  Attorney General of Canada, Ottawa.

Solicitors for the intervener the Canadian Civil Liberties Association:  McCarthy Tétrault, Toronto.