Papalia v. R., [1979] 2 SCR 256

Supreme Court of Canada

Papalia v. R., [1979] 2 S.C.R. 256

Date: 1979-03-06

John Papalia Appellant;

and

Her Majesty The Queen Respondent.

Her Majesty The Queen Appellant;

and

Vincent Cotroni Respondent.

1978: June 12 (Cotroni), June 12, 13 (Papalia); 1979: March 6.

Present: Martland, Ritchie, Spence, Pigeon, Dickson, Beetz and Pratte JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Conspiracy—Elements of offence—Common object—Extortion—Conspiracy to possess money obtained by extortion—Criminal Code, s. 305.

Evidence—Admissibility—Best evidence rule—Tape recordings—Re-recordings—Admissibility of re-recordings—Requirement of proof of authenticity and accuracy.

Criminal law—Indictable offences—Duplicity—Criminal Code, s. 519(1)(b).

Papalia and Cotroni were convicted with others, Swartz and Violi, on an indictment alleging that they unlawfully did conspire together to have possession of some $300,000 more or less, knowing that the said $300,000 was obtained by the commission in Canada of the indictable offence of extortion. The Court of Appeal quashed the convictions of Violi and Cotroni and entered acquittals, but dismissed the appeals of Swartz and Papalia. These two further appeals, by Papalia from conviction and by the Crown from the acquittal of Cotroni, were from the unanimous judgments of the Court of Appeal.

Swartz had been involved with a Toronto stock promoter (Bader) who in turn was associated in some business venture with a man named Rosen. Swartz and Bader borrowed funds from Rosen for the purpose of lending money at high rates of interest. The funds passed from Rosen to Bader to Swartz. Bader had only the word of Swartz that the funds were actually being loaned. Subsequently after Rosen had advised Bader that he would make no further advances Swartz told

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Bader that the loans which he (Swartz) was supposed to have arranged did not exist. Swartz also advised Bader of threats, which had been relayed to him through someone, whom Bader believed to be John Papalia. Bader, and subsequently Rosen, believed Swartz and Rosen became convinced that Bader’s life was in peril. Rosen advanced $175,000 to Swartz and Bader to save Bader from harm (Swartz having told Bader that he, Swartz, had already paid $120,000 from moneys obtained from Rosen for lending purposes towards the $300,000 which Swartz alleged “the people in Montreal” had lost in a stock collapse which they blamed on Rosen). Swartz’s improved life-style gave rise to suspicion and Bader made some inquiries. At this time however Cotroni and Violi came to believe that their names had been used to acquire funds from Bader. There were conversations involving Cotroni, Violi and Papalia and the evidence of what was going on at that time consisted entirely of recordings of three private conversations, largely in the Calabrese language intercepted by the Montreal Police Department. The first conversation was between Violi and Cotroni; for the second, later the same day, they were joined by Papalia; and the third conversation, some two weeks later, was again between Violi and Cotroni. The Court of Appeal found that the only evidence of agreement between Violi and Cotroni and Papalia that emerged from the recorded conversations was for Papalia to arrange a meeting in Toronto between them or one of them and Swartz; and that presumably at such meeting Swartz would have been made the subject of extortion. The judgment in the Court of Appeal could be read in two ways either that the verdict of the jury was unreasonable and unsupported by the evidence or that there was not one but two conspiracies, the object of the second (involving Violi and Cotroni) being different from that alleged in the indictment.

Held: Both appeals should be dismissed.

Per Spence, Dickson, Beetz and Pratte JJ.: Where, as here, several conspiracies are shown to have been committed the problem is to determine which was the one envisaged by the charge. Whether all or any of those that have been proven are covered by the indictment depends on the construction of the charge.

Proper consideration must be given to the jurisdictional limits of the court before which the indictment is laid; it must be assumed that the indictment was intended to relate to a crime over which the court had jurisdiction rather than to a crime over which it had no jurisdiction. In the present case there existed two conspiracies; that of Papalia and Swartz to have possession of extorted funds and that of Cotroni and Violi (and possibly

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Papalia) to acquire and have possession of part of the same extorted funds. The indictment might be broad enough to include both conspiracies, but as the second took place only within the Province of Quebec and Ontario had therefore no jurisdiction with respect to it, it must be inferred that this was not the conspiracy described in the indictment. There was evidence to go to the jury on the basis that Papalia and Swartz conspired as charged and Papalia was properly convicted. The only evidence against Cotroni was however in respect of a conspiracy not covered by the indictment.

Per Martland J.: While agreeing that the appeal by Papalia should be dismissed on the basis proposed, the appeal by the Crown against Cotroni should be dismissed for want of jurisdiction. In the absence of any dissent in the Court of Appeal on a question of law, the right of the Crown to appeal further, with leave is restricted by subs. 621(1) of the Criminal Code to an appeal on a question of law. The Court of Appeal here exercised its power to allow further appeal under para. (i) of s. 613(1) rather than under paras. (ii) or (iii). It was suggested that the reasons of the Court of Appeal constituted a finding of “no evidence” and that this raised a question of law on which to base a further appeal. That Court did not however find that there was “no evidence” but rather that the evidence pointed to “a different object”.

Per Ritchie and Pigeon JJ.: The recordings of the three conversations were the only evidence incriminating Violi and Cotroni and these were also essential evidence against Papalia. Transcripts, translated where necessary from Calabrese to English, are part of the record of the case. While the recordings proffered in evidence were re-recordings and it was argued that these should not be admissible in the circumstances the re-recordings were properly admitted. No question was raised as to their authenticity and the onus of showing that the destruction of the originals was done in good faith and explaining the circumstances of the destruction was in this case met by the Crown.

The issue of duplicity was raised by Papalia. There was however no finding of prejudice caused by the alleged duplicity and in view of s. 519(1)(b) of the Code such duplicity or multiplicity do not invalidate an indictment.

Further, the only evidence against Violi and Cotroni was not evidence of the conspiracy alleged and was of conversations in Montreal. There was no evidence that any part of Cotroni’s conspiracy took place or was carried out in Ontario.

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[D.P.P. v. Doot, [1973] A.C. 807; Paradis v. R., [1934] S.C.R. 165; D.P.P. v. Nock, [1978] 3 W.L.R. 57 (H.L.); R. v. Meyrick and Ribuffi (1929), 21 Cr. App. R. 94 (C.C.A.); Brodie v. The King, [1936] S.C.R. 188; Shumiatcher v. Attorney-General for Saskatchewan (1962), 133 C.C.C. 69 (Sask. C.A.); R. v. Harrison and Burdeyney, [1965] 1 C.C.C. 367 (B.C.S.C.); Re Regina and Marcoux and Desfosses (1973), 13 C.C.C. (2d) 222 (B.C.S.C.); R. v. Greenfield, [1973] 1 W.L.R. 1151 (CCA.); R. v. Dawson, [1960] 1 All E.R. 558 (CCA.); R. v. Warner, [1961] S.C.R. 144; R. v. Cipolla (1965), 46 C.R. 78; Minchin v. The King (1914), 23 C.C.C. 414; R. v. Laroche, [1963] 3 C.C.C 5 rev’d [1964] S.C.R. 667; R. v. Canavan and Busby, [1970] 5 C.C.C 15, leave denied [1970] S.C.R. viii; Cox and Paton v. The Queen, [1963] S.C.R. 500; Archer v. The Queen, [1955] S.C.R. 33; Kienapple v. The Queen, [1975] 1 S.C.R. 729; The Queen v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, 3 C.R. (3d) 30; Demenoff v. The Queen, [1964] S.C.R. 79; R. v. Taylor, [1963] S.C.R. 491; R. v. Morabito, [1949] S.C.R. 172; R. v. Kyling, [1970] S.C.R. 953 referred to.]

APPEALS from judgments of the Court of Appeal for Ontario[1] dismissing an appeal by Papalia and allowing an appeal by Cotroni from conviction for conspiracy to possess money obtained by extortion. Both appeals dismissed.

David Doherty, for the Crown.

Clive Bynoe, Q.C., and Douglas Simpson, for the appellant, Papalia.

Robert Carter, Q.C., for the respondent, Cotroni.

MARTLAND J.—With respect to the case of John Papalia v. Her Majesty The Queen, I agree with the conclusion reached by my brothers Pigeon and Dickson that the appeal should be dismissed.

With respect to the case of Her Majesty the Queen v. Vincent Cotroni, in my opinion the appeal by the Crown should be dismissed because this Court does not have jurisdiction to deal with it. In the absence of any dissent in the Court of Appeal on a question of law, the right of the Crown to appeal to this Court, with leave, is restricted by subs. 621(1) of the Criminal Code to an appeal on a question of law.

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In the Court of Appeal, Jessup, J.A., when dealing with the appeal of Cotroni, said this:

The main ground of appeal of the appellants Violi and Cotroni is that, as against them, the verdict of the jury is unreasonable and cannot be supported by the evidence. In their case I think that argument has to be given effect to. The only evidence of an agreement between them and Papalia that emerges from the recorded conversations is for Papalia to arrange a meeting in Toronto between them or one of them and Swartz. Presumably at such meeting Swartz would have been made a subject of extortion. The theory of the Crown was that Cotroni and Violi joined the existing conspiracy between Swartz and Papalia, but any conspiracy between Papalia, Violi and Cotroni had a different object than that alleged in the indictment. While the roles of the several persons in a conspiracy may be entirely different, they must have a common object. Here the evidence led against Violi and Cotroni points to a different object.

Section 613(1) of the Criminal Code defines the powers of a court of appeal on an appeal from conviction. It provides that the court of appeal:

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground there was a miscarriage of justice;

In my opinion the Court of Appeal in this case exercised its power to allow the appeal under para. (i) and not under para. (ii) or para. (iii). The passage cited from the judgment of the Court states that the appellant’s main ground of appeal was that “the verdict of the jury is unreasonable and cannot be supported by the evidence”, using the words of para. (i). He then goes on to say that “that argument has to be given effect to”.

Paragraph (i) refers to the verdict of a jury. Paragraph (ii) empowers a court of appeal to set aside a judgment of the trial court on the ground of a wrong decision on a question of law. The Court of Appeal did not allow the appeal on that ground. Paragraph (iii) is irrelevant in this case.

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It is suggested that the reasons of the Court of Appeal constitute a finding of no evidence and that this raises a question of law which may come to this Court. The Court of Appeal did not find that there was no evidence to support the conviction. It found that the evidence “points to a different object”. In my view the finding of the Court of Appeal was as to an insufficiency of evidence and not a finding of no evidence at all.

In The Queen v. Warner, [1961] S.C.R. 144, it was held that this Court was powerless to interfere with a judgment of a court of appeal based on the ground that a verdict of a jury should be set aside because it could not be supported by the evidence. Such a finding is one of fact and does not raise a question of law.

For these reasons, it is my opinion that the appeal of the Crown as against Cotroni should be dismissed.

The judgment of Ritchie and Pigeon JJ. was delivered by

PIGEON J.—These two appeals are from unanimous judgments of the Court of Appeal of Ontario affirming John Papalia’s conviction and quashing Vincent Cotroni’s.

Convictions were entered after a jury trial, on October 28, 1976, against all four accused on an indictment charging that:

SHELDON SWARTZ, JOHN PAPALIA, VINCENT COTRONI AND PAOLO VIOLI, between the 1st day of April, 1973, and the 30th day of May, 1974, in the Judicial District of York and elsewhere in the Province of Ontario and in the Province of Quebec, unlawfully did conspire together each with the other and with persons unknown to have possession of $300,000, more or less, knowing that the said $300,000 was obtained by the commission in Canada of the indictable offence of extortion punishable by indictment contrary to Section 423(1)(d) and Section 312(1)(a) of the Criminal Code of Canada.

There was an appeal by each accused. The appeals of Swartz and Papalia were dismissed, those of Cotroni and Violi were allowed. Leave to appeal was granted by this Court to Papalia and to the Crown, but due to Violi’s death the Crown’s

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appeal is now against Cotroni only. The Court of Appeal issued one set of reasons on all four appeals and it will be convenient to do likewise on the two appeals to this Court.

On the appeals to the Court of Appeal an elaborate agreed statement of facts was filed. In this one reads:

The offence alleged by the Crown involved three distinct stages,. . .

The first stage in the spring of 1973 to August 30th, 1973 involved events leading up to the alleged extortion of $300,000.00 perpetrated on Stanley Bader in Toronto.

The second stage involved observations made by Bader and his girlfriend and certain conversations they had with certain persons in Montreal.

The third stage involved conversations between John Papalia of Hamilton, Vincent Cotroni and Paolo Violi, both of Montreal, which occurred in the City of Montreal. These conversations concerned the sum of $300,000.00 and the events of the first and second stage.

The first conversation mentioned in the last paragraph took place on April 30, 1974 between Violi and Cotroni. For the second, which took place on the same day, they were joined by Papalia. Violi and Cotroni were alone for the third conversation on May 13, 1974.

It is common ground that the recordings of those conversations are the only evidence incriminating Violi and Cotroni and that they are also essential evidence against Papalia. Transcripts, translated where necessary from Calabrese to English, are part of the record of the case. The agreed summary of the first conversation is as follows:

Cotroni and Violi discussed certain information which they received from Kott and/or Lanza relating to an alleged extortion of $300,000 that had taken place in Toronto some eight to twelve months previous through the use of their names. They were advised Johnny (Papalia) had approached someone and said: “If you don’t pay the people from Montreal. they are Kott’s partners…they will put you away”. He (Papalia) said it could be settled for $300,000 which Swartz was to deliver to Papalia who, in turn, was to give the money to Vittorio (Cotroni). Swartz was said to have received

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$150,000 which was to be lent out on “Shylock” but he gave the money to Papalia. Then Swartz was alleged to have told Bader he needed to give another $150,000.00 to Papalia to give to Cotroni. Cotroni did not receive any monies from Papalia and he believed Papalia kept it all himself. Violi and Cotroni concluded the conversation by agreeing to meet later that day at Gelateria Violi to discuss the matter with Johnny (Papalia).

No satisfactory summary could be agreed upon for the other two conversations but it may be said that there is no doubt Papalia stated he had been promised $50,000 by Swartz and had received $40,000. Violi and Cotroni were taking the stand that $300,000 had been obtained by the use of their names and they should get one half of that sum.

The first ground of appeal which Jessup J.A. dealt with in the reasons of the Court below concerned the admissibility of the recordings as evidence. On that point he said:

…The recordings proffered in evidence were re-recordings. The explanation for this was that, after re-recording, the original recordings had been erased and the tapes of them re-used. The reason was that at that time it was not the practice of the Montreal police to use tape recordings as evidence in Court. The further reason was that electronic surveillance of the premises in Montreal had extended over a protracted period and the storage of the many resultant tapes presented a problem. As a result, a record only of significant conversations was kept by re-recording such significant parts on fresh tapes which were preserved.

It was argued that the re-recordings proffered were inadmissible as not being the best evidence of the conversations they reproduced. However, counsel made the significant admission that no question was raised as to the authenticity of the re-recordings.

Of the “best evidence” rule Halsbury states in the 4th ed., Vol. 17, p. 8:

“That evidence should be the best that the nature of the case will allow is, besides being a matter of obvious prudence, a principle with a considerable pedigree. However, any strict interpretation of this principle has long been obsolete, and the rule is now only of importance in regard to the primary evidence of private documents. The logic of requiring the production of an original document where it is available rather than relying on possibly unsatisfactory copies, or the recollections of witnesses, is clear, although

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modern techniques make objections to the first alternative less strong.”

The rule itself, in its relatively modern form did not absolutely exclude secondary evidence. It is stated by Lord Esher, M.R. in Lucas v. Williams & Sons, (1892) 2 Q.B. at 116:—

“‘Primary’ and ‘secondary’ evidence mean this: primary evidence is evidence which the law requires to be given first; secondary evidence is evidence which may be given in the absence of the better evidence which the law requires to be given first, when a proper explanation is given of the absence of that better evidence.”

Lord Denning would remove the question of secondary evidence entirely from the area of admissibility to that of weight. In Garton v. Hunter, (1969) 2 Q.B. 37 at 44 he said:

“It is plain that Scott, L.J. had in mind the old rule that a party must produce the best evidence that the nature of the case will allow, and that any less good evidence is to be excluded. That old rule has gone by the board long ago. The only remaining instance of it that I know is that if an original document is available in your hands, you must produce it. You cannot give secondary evidence by producing a copy. Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility.”

However, the counsel of prudence mentioned by Halsbury accords with the principle stated by McCormick on Evidence, 2nd ed. at p. 571:

“If the original document has been destroyed by the person who offers evidence of its contents, the evidence is not admissible unless, by showing that the destruction was accidental or was done in good faith, without intention to prevent its use as evidence, he rebuts to the satisfaction of the trial judge, any inference of fraud.”

The same principle should apply to tape recordings.

In the present case, in my opinion, the onus mentioned by McCormick was met by the Crown. Here the destruction of the original tapes was done in good faith and the re‑recordings are acknowledged to be authentic. For the proposition that only original tape recordings are admissible the appellants rely on the rulings of single judges in R. v. Stevenson, 55 Cr. App. R. 171 and R. v. Robson, 56 Cr. App. R. 450. However, in both those cases the authenticity of the recordings proffered in

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evidence was in serious issue and the rulings on admissibility in neither case provide a guide for the facts in this case. Similarly the appellants have referred to several judgments of American State courts where the best evidence rule has been applied rigidly to exclude copies of tape recordings. However, I prefer the Federal Court view expressed in United States v. Knohl, 379 F. 2d. 427 (1967) at p. 440:

“Where a re-recording of a tape recorded conversation is offered in evidence and the trier finds that a proper foundation has been laid for it, and that the re-recording is authentic and accurate, a technical and rigorous application of the best evidence rule makes no sense and is not required. Johns v. United States, 323 F. 2d. 421 (5 Cir. 1963). The discussion of the rule by Mr. Justice Sutherland, sitting as a Circuit Justice in the Second Circuit, in United States v. Manton, 107 F. 2d. 834, 845 (2 Cir. 1939) is pertinent:

‘The rule is not based upon the view that the so-called secondary evidence is not competent, since, if the best evidence is shown to be unobtainable, secondary evidence at once becomes admissible. And if it appear, as it does here, that what is called the secondary evidence is clearly equal in probative value to what is called the primary proof, and that fraud or imposition, reasonably, is not to be feared, the reason upon which the best evidence rule rests ceases, with the consequence that in that situation the rule itself must cease to be applicable, in consonance with the well-established maxim—cessante ratione legis, cessat ipsa lex.

An over-technical and strained application of the best evidence rule serves only to hamper the inquiry without at all advancing the cause of truth.’

We are not unmindful, however, that tape recordings are susceptible to alteration and that they often have a persuasive, sometimes a dramatic, impact on a jury. It is therefore incumbent on the Government to produce clear and convincing evidence of authenticity and accuracy as a foundation for the admission of such recordings; and where the Court accepts them as authentic and accurate but the evidence is conflicting on these points, it must caution the jury to scrutinize the evidence with care.”

In my opinion the learned trial Judge properly received in evidence in the present case the re-recordings proffered.

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In spite of the elaborate argument submitted by counsel for Papalia and for Cotroni, I can see no reason to doubt the correctness of the opinion thus expressed and I find it unnecessary to add anything on the point. Most of the other points taken by Papalia before the Court of Appeal were also raised again before us but I am satisfied they were properly rejected and do not consider it necessary to deal explicitly with any of them. There is however an important point which arises out of the reasons given for disposing the appeals of Violi and Cotroni as follows:

The main ground of appeal of the appellants Violi and Cotroni is that, as against them, the verdict of the jury is unreasonable and cannot be supported by the evidence. In their case I think that argument has to be given effect to. The only evidence of an agreement between them and Papalia that emerges from the recorded conversations is for Papalia to arrange a meeting in Toronto between them or one of them and Swartz. Presumably at such meeting Swartz would have been made a subject of extortion. The theory of the Crown was that Cotroni and Violi joined the existing conspiracy between Swartz and Papalia but any conspiracy between Papalia, Violi and Cotroni had a different object than that alleged in the indictment. While the roles of the several persons in a conspiracy may be entirely different, they must have a common object. Here the evidence led against Violi and Cotroni points to a different object.

Papalia’s first ground of appeal arising out of the above statement is that on this view of the conspiracy, the indictment was void for duplicity. I do not think this is a correct reading of the Court of Appeal decision. What is said is not that two conspiracies were charged in the indictment but that “any conspiracy between Papalia, Violi and Cotroni had a different object than that alleged in the indictment”. This means that in the view of the Court of Appeal, if there was a conspiracy between Papalia, Violi and Cotroni it was not the conspiracy alleged in the indictment. The basis of this finding is, I think, in the preceding sentence: “Swartz would have been made a subject of extortion”, in other words, this was not a conspiracy to have possession of the $300,000 but a conspiracy to extort $150,000 from Swartz.

I have to agree with Jessup J.A. that the alleged conspiracy between Papalia, Violi and Cotroni did not have the same object as the initial conspiracy

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between Swartz and Papalia. The object of this first conspiracy was to obtain possession of the $300,000 extorted from Bader at the end of August 1973 and of which Papalia got $40,000 out of a promised $50,000. There is no evidence that Cotroni and Violi were actually involved in this matter prior to the end of April 1974 at which time, having been told that their names had been used in the extortion by Swartz, they allegedly conspired with Papalia to obtain part of the $300,000. The theory of the Crown is that they thereby joined the initial conspiracy between Swartz and Papalia, but I think this contention was righly rejected by the Court of Appeal. There was no evidence of any agreement by them with Swartz, only with Papalia, and, in the circumstances, the latter certainly could not be considered as acting for him so as to effect a conspiracy between all four accused in respect of what Violi and Cotroni sought to accomplish. I, therefore, agree with Jessup J.A. that “the evidence led against Violi and Cotroni points to a different object”.

Out of this there arise two groups of appeal raised by Papalia which require consideration, namely, that on the basis of such conclusion the verdict should be quashed for duplicity and also for improper admission of evidence.

As to the duplicity, it is pretty clear that the Court of Appeal did not think it existed, because it held the “conspiracy between Papalia, Violi and Cotroni had a different object than that alleged in the indictment”, that is it was a conspiracy to extort money from Swartz rather than a conspiracy to have possession of the sum extorted by Swartz from Bader. However, I do not think this is the correct view of Violi and Cotroni’s conspiracy with Papalia. The money extorted by Swartz from Bader did not thereby become his in law. Therefore it appears to me that Violi and Cotroni’s conspiracy is properly described as a conspiracy to have possession of that money rather than as a conspiracy to extort some of it from Swartz, so that, although it is a separate conspiracy it is covered by the indictment and makes it duplicitous. But I do not think this invalidates the conviction. Section 519 of the Code reads:

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519. (1) A count is not objectionable by reason only that

(a) it charges in the alternative several different matters, acts or omissions that are stated in the alternative in an enactment that describes as an indictable offence the matters, acts or omissions charged in the count, or

(b) it is double or multifarious.

(2) An accused may at any stage of his trial apply to the court to amend or to divide a count that

(a) charges in the alternative different matters, acts or omissions that are stated in the alternative in the enactment that describes the offence or declares that the matters, acts of omissions charged are an indictable offence, or

(b) is double or multifarious,

on the ground that, as framed, it embarrasses him in his defence.

(3) The court may, where it is satisfied that the ends of justice require it, order that a count be amended or divided into two or more counts, and thereupon a formal commencement may be inserted before each of the counts into which it is divided.

In my view, full effect must be given to ss. (1)(b). Duplicity no longer makes an indictment void. In R. v. Cipolla[2] Porter C.J.O. said in giving the majority opinion (at p. 90):

In the present case the charge is “that the accused unlawfully did conspire together, the one with the other and others of them and persons unknown,” so that in the present case all that was required to be proved by the Crown in so far as Cipolla was concerned, was that he conspired to traffic with any of the other persons charged in the indictment. In my view, once the Crown has proved that Cipolla conspired with any of his co‑accused to traffic in narcotic drugs they proved their case and even if there were more than one conspiracy proved, which in my view there was not, it would not be open to Cipolla as a defence to say “you have proved more than one conspiracy against me.”

This decision was affirmed on appeal to this Court ([1965] S.C.R. v, 46 C.R. 197).

I do not overlook subs. 510(1) which is the introductory provision under the heading “General

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Provisions as to Counts” and is in the following terms:

510. (1) Each count in an indictment shall in general apply to a single transaction and shall contain and is sufficient if it contains in substance a statement that the accused committed an indictable offence therein specified.

One should note in this enactment the words “in general” which indicate that this is not a rigid but a flexible rule, also the word “transaction” which has no technical meaning in criminal law and cannot be equated with “offence”. The reason for this indefiniteness in the rule is obvious: it is to be read with s. 519 which governs its application, giving to the trial judge fairly complete discretion in this respect. He may at the request of the accused or of his own motion, at any stage of the trial, divide a double or multiple count. On the other hand, it is provided that this will not be a cause of invalidity.

It has long been recognized that the general rule against duplicity or multifarious counts is subject to exception in some cases. For instance in Minchin v. The King[3] one reads in the head note:

A conviction for theft of an entire sum, although it may have been taken in numberous small amounts at different times during the deficiency period, may be supported without proving the taking of each of any of such several amounts and the case treated as one continuous act of theft although there were a number of distinct takings,…

In R. v. Laroche[4], at p. 10, McLennan J.A. said for the Ontario Court of Appeal:

The argument was addressed to us that the indictment and conviction were bad in law. Section 492(1) (of the Criminal Code, 1953-54 (Can.), c. 51) states: “Each count in an indictment shall in general apply to a single transaction…” Counsel for the appellant argued that each of the nine transactions should have been made the subject of a separate count and since they were not the conviction is void for uncertainty because a general verdict on the indictment as it stands now does not reveal what amount the jury found that the appellant had stolen. This charge is, however, that the appellant between certain dates stole varying sums, in amounts

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and at times unknown, to a total sum of $10,790.52. In such a case it is proper to charge a general deficiency: Minchin v. The King (1914), 23 C.C.C. 414, 18 D.L.R. 340. The proof of the nine transactions was necessary to show the general deficiency and apart from the first Millcraft cheque the Noel cheque, if that was a substitution for cash previously taken, there was no relation in time between the takings and the substitutions of the cheques. If the charge had been that of falsifying records under s. 340 it would of course have been necessary to set out in a separate count each of the transactions referred to, but that is not this case. The appellant did not apply for particulars before or during the trial under s. 497 or to amend or divide the count under s. 500. I would not be disposed to quash the conviction on these grounds because in substance the charge is of one continuous act of theft. In any event it is not a rule of law but one of practice that in cases like this the charge should be divided into as many counts as possible: R. v. Tomlin (1954), 38 Cr. App. R. 82…

Although rejecting the argument based on multiplicity, the Ontario Court of Appeal quashed the conviction on another ground. On appeal to this Court[5] the conviction was restored by the majority judgment, however, Spence J. Dissenting, agreed with the majority as to the correctness of the above quoted statement.

In R. v. Canavan and Busby[6] at pp. 18, 19, Schroeder J.A. said for the Ontario Court of Appeal after quoting ss. 510(1) (then subs. 492(1)):

“Transaction” is a word of quite comprehensive import, which, so far as I am aware, has never been the subject of any exact legal definition. The word has been interpreted as the justice of each case demanded rather than by any abstract definition. In its ordinary sense it is understood to mean the doing or performing of some matter of business between two or more persons. “Transaction” in its broadest sense expresses the concept of driving, doing, or acting as is denoted by the Latin word trans-agere from which it is derived. In Bendir et al. v. Anson, [1936] 3 All E.R. 326 at p. 330, it was suggested

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that “transaction” would seem to mean an act the effect of which extends beyond the agent to other persons.

A “transaction” may and frequently does include a series of occurrences extending over a length of time.

. . .

The words “in general” appearing in s. 492(1) would appear to indicate a permissible relaxation of its terms extending to exceptional cases in which a number of acts each in itself constituting an offence is capable of being treated as one transaction. This is implicit in the provisions of s. 500(3) of the Code which empowers the Court, where it is satisfied that the ends of justice require it, to order that a count be amended or divided into two or more counts. This indicates that a number of acts, each in themselves capable of constituting an offence, may be before the Court in one count and a trial on that one count can proceed unless the Court is satisfied that a division is required.

Leave to appeal to this Court was denied ([1970] S.C.R. viii).

Counsel for Papalia relied on what is said by Goode, Criminal Conspiracy in Canada at p. 228, and notes there cited. The notes refer mainly to Cox and Paton v. R.[7] and Archer v. R.[8] I cannot find what Goode says very helpful to Papalia and Cotroni. At p. 222, I read: “Cartwright J. in Cox and Paton v. The Queen recognized that one conspiracy may encompass more than one object,…”. I should however point out that Cox and Paton did not deal with duplicity in the same sense as in the instant case. The problem there was the exact opposite: instead of two conspiracies charged in one count, the same conspiracy was in substance charged differently in several counts. It was a situation similar to that which occurred in Kienapple v. R.[9] where it was likewise held that there should not be more than one conviction entered for what is in substance the same delict, although it may technically constitute two or more offences.

As to Archer v. R. it must be pointed out that this was a summary conviction offence governed by the provisions of the old Criminal Code, which

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are quoted in the judgment of the majority and where one reads:

710. (3) Every complaint shall be for one matter of complaint only, and not for two or more matters of complaint, and every information shall be for one offence only, and not for two or more offences.

This was a rigid rule against duplicity or multiplicity totally unlike ss. 510(1) and moreover not subject to s. 519.

Even under the present Code, the situation is not the same for summary conviction offences as for indictable offences for the obvious reason that in summary conviction offences, the accused does not have the benefit of a preliminary enquiry. Subsection 724(1) reads:

724. (1) In proceedings to which this Part applies, the information

(a) shall be in writing and under oath, and

(b) may charge more than one offence or relate to more than one matter of complaint, but where more than one offence is charged or the information relates to more than one matter of complaint, each offence or matter of complaint, as the case may be, shall be set out in a separate count.

By virtue of subs. 729(1), ss. 510 and 512 apply but not s. 519. However, here is what Dickson J., speaking for the full Court, said of duplicity in the summary conviction case of Caswell v. Sault Ste. Marie,[10] at pp. 38, 39 and 1307, 1308:

…one must recall, I think, the policy basis of the rule against multiplicity and duplicity. The rule developed during a period of extreme formality and technicality in the preferring of indictments and laying of informations. It grew from the humane desire of judges to alleviate the severity of the law in an age when many crimes were still classified as felonies, for which the punishment was death by the gallows. The slightest defect made an indictment a nullity. That age has passed. Parliament has made it abundantly clear in those sections of the Criminal Code having to do with the form of indictments and informations that the punctilio of an earlier age is not longer to bind us. We must look for substance and not petty formalities.

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. . .

In my opinion, the primary test should be a practical one, based on the only valid justification for the rule against duplicity: does the accused know the case he has to meet, or is he prejudiced in the preparation of his defence by ambiguity in the charge?

In the present case there is no finding of prejudice caused by the duplicity of the charge and none appears. In my view, the effect of s. 519 is not doubtful: in indictable offences, duplicity and multiplicity do not invalidate an indictment, it is for the judge trying the case to decide whether a division is necessary. In the present case, it is unnecessary to go on to consider under what circumstances the failure of the trial judge to properly exercise his discretion in this respect might be reviewed on appeal, there is no basis for such review. I, therefore, have to reject the objection based on duplicity.

The last ground of appeal submitted by Papalia which has to be dealt with is that, because the second conspiracy did not come within the terms of the indictment, the evidence in support thereof was not properly admitted. There is no substance in this objection. The incriminating part of the three conversations towards Papalia is all in the second in which he took part and which would be admissible in any event.

For those reasons, I conclude that Papalia’s appeal should be dismissed.

On the Crown’s appeal against Cotroni, a threshold question arises: Does the appeal raise a pure question of law? The problem is that in dealing with Violi and Cotroni’s appeal, Jessup J.A. said at the outset:

The main ground of appeal of the appellants Violi and Cotroni is that, as against them, the verdict of the jury is unreasonable and cannot be supported by the evidence. In their case I think that argument has to be given effect to.

If those words were to be considered apart from what follows, it would have to be decided that there can be no appeal to this Court because it is settled that when the Court of Appeal finds the evidence insufficient this does not raise a pure

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question of law: R. v. Warner[11], Demenoff v. R.[12] However, the fact that the words of subpara. 613(1)(a)(i) are used does not necessarily mean that the judgment of the Court of Appeal is not based on one or more pure questions of law. In R. v. Taylor[13] those very words had been used by Casey J.A. as quoted by Cartwright J. dissenting (at p. 495):

Before a jury can be called upon to pass judgment, before it can be asked to decide whether there was ‘wanton or reckless disregard’ there must be some evidence from which the existence of this element can be reasonably deduced. If no such evidence exists then the verdict that finds the accused guilty is one that in the words of CC 592 is ‘unreasonable or cannot be supported by the evidence’. In this case the only person who testifies as to the conduct of the appellant was Mrs. Lemieux. Assuming that the appellant was driving the automobile that struck the victim the evidence of Mrs. Lemieux does not establish facts from which the existence of ‘wanton or reckless disregard’ can be reasonably deduced.

For the foregoing reasons I would maintain this appeal and quash the conviction.

However, the majority agreed with Judson J. that, in fact, the decision was that there was no evidence and this was a question of law (at p. 493):

When the case came to appeal the Court concentrated its attention upon the evidence of Madame Lemieux. I take the finding of Casey J. to be that there was no evidence to go to the jury and that, in consequence, he held that the verdict was unreasonable and could not be supported by the evidence. Rinfret J. held that the learned trial judge ought to have directed a verdict of acquittal. Badeaux J. agreed with both his colleagues and, in my opinion, without any inconsistency for it is a common basis to both reasons for judgment that there was no evidence to go to the jury. This is a question of law and I am of the opinion that the ruling upon it was erronenous.

In the present case, after the two sentences I have first quoted, Jessup J.A. goes on to say:

The only evidence of an agreement between them and Papalia that emerges from the recorded conversations is for Papalia to arrange a meeting in Toronto between

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them or one of them and Swartz. Presumably at such meeting Swartz would have been made a subject of extortion. The theory of the Crown was that Cotroni and Violi joined the existing conspiracy between Swartz and Papalia but any conspiracy between Papalia, Violi and Cotroni had a different object than that alleged in the indictment. While the roles of the several persons in a conspiracy may be entirely different, they must have a common object. Here the evidence led against Violi and Cotroni points to a different object.

This clearly means that the only evidence against Violi and Cotroni is not evidence of the conspiracy alleged in the indictment because it points to a different object. A finding that there is no evidence raises a question of law as stated by Judson J., see: R. v. Morabito[14], R. v. Kyling[15]. Whether evidence of a conspiracy between Cotroni, Violi and Papalia to obtain from Swartz some of the money extorted by him from Bader is evidence of the conspiracy alleged in the indictment, is also a question of law as is apparent from what has already been said. In my opinion, for the reasons already stated, the Crown’s appeal against Cotroni raises questions of law.

There is however a further difficulty. The only evidence against Cotroni is of conversations in Montreal. In order to support a verdict against him in Ontario, there has to be some evidence that some part of his conspiracy with Violi and Papalia took place or was carried out in Ontario. This is what I cannot find.

I therefore come to the conclusion that both appeals should be dismissed.

The judgment of Spence, Dickson, Beetz and Pratte JJ. was delivered by

DICKSON J.—This is an appeal by John Papalia from conviction on a charge of conspiring to have possession of extorted funds, and an appeal by the Crown from the acquittal of Vincent Cotroni on the same charge.

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Conspiracy is an inchoate or preliminary crime, dating from the time of Edward I, but much refined in the Court of Star Chamber in the seventeenth century. Notwithstanding its antiquity, the law of conspiracy is still uncertain. It can, however, be said that the indictment for conspiracy is a formidable weapon in the armoury of the prosecutor. According to the cases, it permits a vague definition of the offence; broader standards of admissibility of evidence apply; it may provide the solution to prosecutorial problems as to situs and jurisdiction. See Director of Public Prosecutions v. Doot[16]. But the very looseness generally allowed for specifying the offence, for receiving proof, and generally in the conduct of the trial, imposes upon a trial judge an added duty to ensure against the possibility of improper transference of guilt from one accused to another. There is, I have no doubt, a subconscious tendency upon the part of jurors in a conspiracy case to regard all co-conspirators alike and ignore the fact that guilt is something individual and personal.

The word “conspire” derives from two Latin words, “con” and “spirare”, meaning “to breathe together.” To conspire is to agree. The essence of criminal conspiracy is proof of agreement. On a charge of conspiracy the agreement itself is the gist of the offence: Paradis v. R.[17], at p. 168. The actus reus is the fact of agreement: D.D.P. v. Nock[18], at p. 66. The agreement reached by the co-conspirators may contemplate a number of acts or offences. Any number of persons may be privy to it. Additional persons may join the ongoing scheme while others may drop out. So long as there is a continuing overall, dominant plan there may be changes in methods of operation, personnel, or victims, without bringing the conspiracy to an end. The important inquiry is not as to the acts done in pursuance of the agreement, but whether there was, in fact, a common agreement to which the acts are referable and to which all of the

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alleged offenders were privy. In R. v. Meyrick and Ribuffi[19], at p. 102 the question asked was whether “the acts of the accused were done in pursuance of a criminal purpose held in common between them”, and in 11 Halsbury (4th ed.), at p. 44 it is said:

It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose.

There must be evidence beyond reasonable doubt that the alleged conspirators acted in concert in pursuit of a common goal.

The difficulty in this case stems from the essential vagueness of the charge. There is no indication that any motion to quash was made at the outset of the trial. I observe in passing, however, that it is open to question whether the indictment can be said to contain “sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information with respect to the act or omission to be proved against him”, or “to identify the transaction referred to”, as required by s. 510(3) of the Criminal Code. Indictments not unlike that in the case at bar were quashed in the following conspiracy cases: Brodie v. The King[20], (where the offence was baldly stated as “seditious conspiracy”); Schumiatcher v. Attorney‑General for Saskatchewan[21] (conspiracy “unlawfully by deceit, falsehood or other fraudulent means, to defraud the public of property, money or valuable securities”); R. v. Harrison and Burdeyney[22] (conspiracy “to commit the indictable offence of arson”); and Re Regina and Marcoux and Desfosses[23] (conspiracy to commit “armed robbery”).

The Facts

          Toronto

The facts of the case are bizarre. A detailed statement of those agreed upon was prepared by the parties for submission to the Court of Appeal

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of Ontario. The following is a resumé of the agreed facts: In 1973, one Stanley Bader was working in Toronto as a stock promoter. He was associated in some business ventures with a man named Sydney Rosen. During the first part of 1973 Bader was also involved in a venture with one Sheldon Swartz. They lent money to various individuals at high rates of interest. They borrowed funds from Rosen for that purpose. The lending practice was referred to as “shylocking.” About $140,000 was advanced by Rosen during a period of six weeks. Swartz arranged most of the loans. The funds passed from Rosen to Bader to Swartz. Bader had only the word of Swartz that the funds were actually being loaned. Bader considered Swartz his best friend and trusted him implicitly. In early August, 1973, Rosen advised Bader that he would make no further advances. Shortly thereafter Swartz told Bader that the loans which Swartz was supposed to have arranged did not exist.

Swartz also advised Bader that he had been told there was going to be trouble involving Bader and Rosen. Certain people in Montreal had apparently lost money because the stocks promoted by one Irving Kott had collapsed. Rosen was blamed for this collapse. Bader was the target of these people because he was close to Rosen, and Rosen was considered too important to attack directly. Swartz advised Bader that the “trouble” could be avoided by paying $300,000 to these people who had suffered the loss. If the money was not forthcoming, Swartz was advised that Bader would be maimed so he could never work again. Swartz told Bader that, as a favour to Bader, he, Swartz, had paid about $120,000 from moneys obtained from Rosen under the pretence that the money was being lent by Bader and Swartz. Swartz told Bader that he was now compelled to tell Bader the truth because the remaining $180,000 had to be paid within a week or Swartz himself would be in trouble. Swartz indicated that these threats from Montreal had been relayed to him through someone in Hamilton whom Bader assumed to be John Papalia, also known as “Johnny Pops.”

Bader believed the story told by Swartz, as did Rosen. Rosen became convinced a “contract” was

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out on Bader and that Bader’s life was in peril. Rosen advanced $175,000 in cash to Swartz and Bader in order to save Bader from harm. Swartz reported to Bader that he had given the cash to a heavy-set man. Bader inquired whether the man was Angelo Lanza (now dead), a resident of Montreal and an associate of Kott. Swartz did not reply.

The friendship between Swartz and Bader cooled in the latter part of 1973. Swartz’ life-style also showed a marked improvement during this period. His purchase of expensive jewellery, furniture and swimming pool gave rise to suspicion, however, on the part of Bader, leading the latter in late April, 1974 to meet Kott in Montreal. Kott denied any knowledge of the $300,000. Lanza also disclaimed knowledge of the events which had occurred in Toronto the previous August.

          Montreal

The scene now shifts to Montreal and to events between April 30, 1974 and May 13, 1974. Two residents of Montreal, Vincent Cotroni and Paolo Violi (now dead) are added to the central cast of characters. Cotroni and Violi came to believe that their names had been used to acquire funds from Bader. The evidence of events in Montreal consists entirely of recordings of three private conversations, largely in the Calabrese language, intercepted by means of electromagnetic devices installed by the Montreal Police Department.

In the first conversation, Cotroni and Violi discuss information they received from Kott, or Lanza, or both, relating to an alleged extortion of $300,000 in Toronto some months previously through the use of their names. They had been advised that Johnny Papalia had approached someone and said: “If you don’t pay the people from Montreal…they are Kott’s partners…they will put you away…” Papalia had said it could be settled for $300,000. Swartz was to deliver $300,000 to Papalia who, in turn, was to give it to Cotroni. Cotroni, however, did not receive any moneys from Papalia and he believed Papalia had

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kept it all himself. Violi and Cotroni concluded their conversation by agreeing to meet later that day at Violi’s ice cream parlour, Gelateria Violi, to discuss the matter with Papalia.

The second conversation involved Cotroni, Violi and Papalia. Papalia is the object of intense and menacing inquiry. Cotroni and Violi are seeking to discover whether to believe Papalia’s story to the effect that Swartz had taken $150,000 improperly from Rosen and, in panic, sought Papalia’s help. Through threats, Swartz obtained another $150,000 from Rosen. Papalia said that he was supposed to be paid $50,000 by Swartz, but received only $40,000. The following is an extract from the conversation:

PAPALIA IN ENGLISH

He’s got two sixty believe me, if he took three hundred, he’s got two sixty.

COTRONI

Yeah?

PAPALIA IN ENGLISH

I got forty. Take the two sixty off of him.

COTRONI IN ENGLISH

Yeah! But you see the guy, he gonna say, “I gave this money to Johnny.”

PAPALIA IN ENGLISH

He can say he gave it to Jesus Christ! I don’t care what he says. He didn’t give it to me Vic.

COTRONI IN ENGLISH

Let’s hope because eh, we’ll kill you.

PAPALIA IN ENGLISH

I know you’ll kill me Vic, I believe you’ll kill me.

COTRONI IN ENGLISH

…because the guy said, he give, he give it to Johnny. He say. The guy say that.

PAPALIA IN ENGLISH

What, what do you want me to do. Just tell him he’s a (…) liar.

Near the end of the conversation Cotroni said, referring to Swartz: “O.K. we gonna deal with him, we gonna fix…” Violi, speaking to Papalia, said: “So in the meantime, you got forty, he gotta two sixty, he got the money because he used us

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names, the people he gonna see me, he got the (…) money, when we got nothing.” Papalia suggested that they beat up Swartz and take the $260,000 from him, but Cotroni and Violi demurred. After further discussion Papalia said: “I tell him my own way, in my own back yard”, to which Violi responded: “Hum, eh, eh, eh, this way we never, we never, we never reach that guy.” Papalia replied: “Then you come, you come to Toronto then.” And so it was agreed that Violi would go to Toronto the following week. He was prepared to go “. . . any place, so long as we gonna straight up this thing.” It is only too clear that “straight up this thing” meant relieving Swartz of the money he had extorted or what was left of it. Violi assured Papalia: “That’s gonna save your life.” It was agreed that, pending the proposed meeting in Toronto, Papalia would say nothing to Swartz.

A third conversation, containing little of interest, involved Cotroni and Violi in a discussion of the events which had transpired since their conversation with Papalia on April 30, 1974. The Toronto meeting had not taken place. Papalia, however, in breach of his undertaking, had spoken, it would appear, to Swartz.

That is the evidence in the case, taken from the agreed statement of facts and transcript of conversations. In most conspiracy prosecutions the fact of an agreement between the conspirators, and its nature, must be inferred from overt acts and disputed facts. In the present case, the Court suffers under no such disability. The Toronto facts, if I may use that phrase, are agreed, and the Montreal facts are a matter of direct evidence. The facts are, of course, of crucial importance in considering the nature and scope of the agreement which is alleged to constitute the conspiracy.

The Legal Proceedings

The Crown laid a single charge of conspiracy against Swartz, Papalia, Cotroni and Violi. The indictment reads:

Sheldon Swartz, John Papalia, Vincent Cotroni and Paolo Violi, between the 1st day of April, 1973, and the

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30th day of May, 1974, in the Judicial District of York and elsewhere in the Province of Ontario and in the Province of Quebec, unlawfully did conspire together each with the other and with persons unknown to have possession of $300,000, more or less, knowing that the said $300,000 was obtained by the commission in Canada of the indictable offence of extortion punishable by indictment contrary to Section 423(1)(d) and Section 312(1)(a) of the Criminal Code of Canada. (Emphasis added.)

The four accused were tried by a jury presided over by Mr. Justice Wright. All were found guilty. On appeal, the convictions of Papalia and Swartz were confirmed. As to Violi and Cotroni, the Court of Appeal, speaking through Mr. Justice Jessup, said:

The main ground of appeal of the appellants Violi and Cotroni is that, as against them, the verdict of the jury is unreasonable and cannot be supported by the evidence. In their case I think that argument has to be given effect to. The only evidence of an agreement between them and Papalia that emerges from the recorded conversations is for Papalia to arrange a meeting in Toronto between them or one of them and Swartz. Presumably at such meeting Swartz would have been made a subject of extortion. The theory of the Crown was that Cotroni and Violi joined the existing conspiracy between Swartz and Papalia, but any conspiracy between Papalia, Violi and Cotroni had a different object than that alleged in the indictment. While the roles of the several persons in a conspiracy may be entirely different, they must have a common object. Here the evidence led against Violi and Cotroni points to a different object.

There are two possible readings of the judgment of the Court of Appeal:

(a) the court concluded that the verdict of the jury was unreasonable and could not be supported by the evidence, although there was sufficient evidence to go to the jury. If this be so, no question of law arises for this Court;

(b) there was not one, but two, conspiracies, the object of the second being different from that alleged in the indictment.

Let me say at the outset that I have had an opportunity of reading the reasons prepared by my brother Pigeon for delivery in this appeal. I agree with him that the first of the above readings of the Court of Appeal decision must be rejected. The Court of Appeal, as I read the reasons, found a

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second conspiracy involving Cotroni and Violi with a different object than the conspiracy to which Swartz and Papalia were parties, Hence, so far as Cotroni and Violi were concerned, there was no evidence, as distinguished from insufficiency of evidence, of the conspiracy alleged.

I agree with my brother Pigeon that the Court of Appeal was right in rejecting the theory of the Crown that there was one continuous conspiracy initially composed of Swartz and Papalia, thereafter joined by Violi and Cotroni, the object (the possession of funds knowing they were obtained by extortion) remaining constant throughout. I also agree that the count, as drafted, is not duplicitous and does not become so by reason of the evidence called in support of the count: R. v. Greenfield[24].

The principal issue, as I see it, is not one of duplicity or of objects, but whether the Crown has succeeded in proving agreement among all the alleged conspirators. The Crown undertook to prove that Swartz, Papalia, Cotroni and Violi, the four of them, conspired together and agreed to possess extorted funds. The question is whether there was evidence upon which the jury could find unity of intent on the part of the four accused. In addition to proof of a common design, it was incumbent on the Crown to establish that each accused had the intent to become a party to that common design with knowledge of its implications.

Agreement

Some improbable groupings of individuals have been held to be single conspiracies by the simple technique of positing a very general “object”, and in the case at bar that technique was attempted. The Crown contends that the “object” was the indictable offence of having possession of funds knowing they were obtained by extortion, that there existed only one conspiracy to achieve one object and hence that all four accused may be convicted of conspiracy. This view overlooks the essential point that, in order to have a conspiracy, one must have ageeement between the co-conspirators. There was simply no evidence of agreement

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between the four alleged conspirators. There was not the common purpose of a single enterprise, but rather the several purposes of two separate adventures. It is true that, in the most general of terms, it might be said that each of these adventures had a common object, money, with Swartz and Papalia in possession of extorted funds, and Cotroni and Violi desirous of relieving them of those funds, but there was no general agreement. A common desire to have money cannot create a conspiracy in the absence of a meeting of minds. The facts here show two competing and mutually exclusive objects. Counsel suggested the analogy of four hungry dogs fighting over a bone. If there was agreement between Violi, Cotroni, and a reluctant Papalia on April 30, 1974, it was for an object inconsistent with and, indeed, diametrically opposed to the stated object of the agreement between Swartz and Papalia. Legal fiction and conceptual theory must be kept within some reasonable limits.

However one characterizes the modus operandi intended to be employed by Cotroni and Violi in respect of Swartz, it is Swartz who is clearly the victim, and also unaware that he has been cast in that role. All of this must serve to negate the existence of one agreement. The case of R. v. Dawson[25], started with a charge of conspiracy to cheat and defraud over a period of three years rolled up with fourteen other counts of substantive offences. Finnemore J. found that: “Although conspiracy there was, it was a number of conspiracies.” Twelve men were said to have been involved, of whom six were charged and three convicted. At p. 564, Finnemore J. notes:

It is an odd circumstance that one person named Eland was included in a count as one of the conspirators, and in a later count included as one of the victims.

We find the statement: “…it is no more correct to charge several conspiracies, though they are called one conspiracy, if it is to include other different charges, in one count.” The convictions on this count were quashed.

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Accepting that there was agreement between Papalia and Swartz for the possession of the proceeds of extortion, and that it continued until the events in Montreal, there is no evidence that Cotroni and Violi joined or, to use the word of early days, “adhered”, to that agreement.

The indictable offence in the abstract, as it was set out in this case, cannot be set up as, or confused with, the “object” of the conspiracy. One must look to the facts to find the object. When this is done it is obvious that while Swartz and Papalia, on the one hand, and Cotroni and Violi, on the other, may be said, in a very loose sense, to have been pursuing the same end or object, they were doing so independently and not in pursuance of a criminal purpose held in common between them. If one asks the simple question, “What did the four conspirators agree to do?”, the answer, upon the evidence, must be: “Nothing.” One cannot pass off the antagonistic designs of the four protagonists as merely differences in the “terms” of the agreement, the “object” remaining constant, which is the Crown’s theory. There was no common agreement and no common object.

A distinction must be drawn between a conspiracy count which charges the accused with two or more conspiracies, and a count which charges one conspiracy only but is supported by proof during trial of more than one conspiracy. The former gives rise to questions of duplicity. The latter raises the question of whether the Crown has proven the conspiracy charged against two or more of the accused notwithstanding evidence of a second conspiracy. It is the latter situation with which we are concerned in this case.

A recent English case, R. v. Greenfield, supra, attempts to shed some light on the question. There Lawton L.J. distinguished between “form” and “proof” at pp. 1155-6:

A conspiracy count is bad in law if it charges the defendants with having been members of two or more conspiracies. This is elementary law.

When considering whether a conspiracy count is bad for duplicity, a trial judge should look at the count itself, the particulars if provided, and the

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opening address of the prosecution. Lawton L.J. continued, p. 1156:

Duplicity in a count is a matter of form; it is not a matter relating to the evidence called in support of the count…

A charge which is not bad for duplicity when the trial starts does not become bad in law because evidence is led which is consistent with one or more of the defendants being a member of a conspiracy other than the one charged. Such evidence may make it impossible for the prosecution to establish the existence of the conspiracy charged…

Lawton L.J. proceeded then to discuss the proper procedure to be followed in such a case, at pp. 1156-7:

At the end of the prosecution’s case the evidence may be as consistent with the defendants, or some of them, having been members of a conspiracy which was not the one charged as with the one charged. In such a situation the trial judge should rule that there is no case to answer. But if at the end of the prosecution’s case there is evidence on which, if uncontradicted, a reasonably minded jury could convict the defendants, or two or more of them, of the conspiracy charged despite evidence of the existence of another conspiracy, then the trial judge should let the case go to the jury.

In Greenfield the four accused were charged with conspiring to cause explosions in the United Kingdom over a three-year period. The evidence showed about twenty-five explosions in a number of cities. The argument of the accused on appeal was that the count was bad for multiplicity because the evidence was inconsistent with one single continuous conspiracy. The convictions were upheld. The conspiracy consisted of the overall agreement to plant bombs though overt acts offered to prove it showed subsequent subsidiary conspiracies.

Conclusion

Where several conspiracies are shown to have been committed, the problem arises of determining which one of these conspiracies is that envisaged by the charge.

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Whether any or all of the conspiracies that have been proven to have been committed are covered by the indictment depends on the construction of the charge.

In interpreting the indictment, proper consideration must be given to the jurisdictional limits of the court before which the indictment is laid; it must be assumed that the indictment was intended to relate to a crime over which the court had jurisdiction, rather than to a crime over which it had no jurisdiction.

In the present case, the evidence shows that there existed two conspiracies; the first one involved Papalia and Swartz and its purpose was to have possession of extorted funds; the second one involved Cotroni and Violi, and possibly Papalia, and its purpose was to acquire and consequently to have possession of part of the same extorted funds. The language of the indictment may well be broad enough to include both conspiracies; however, the second conspiracy clearly took place only within the Province of Quebec. The evidence does not disclose that anything was done in furtherance of its object within the territorial limits of Ontario. It follows that Ontario had no jurisdiction in respect thereto, and it must be inferred that this is not the conspiracy described in the indictment.

It is against this background that the merits of these two appeals must be considered.

In the case of Papalia, there was evidence to go to the jury that he and Swartz conspired as charged and, in my view, Papalia was properly convicted. I agree with my brother Pigeon that the grounds of appeal respecting the admissibility of certain evidence, and other matters raised on his behalf, are without merit.

As to the appeal by the Crown against Cotroni, I agree with the Court of Appeal, though for different reasons, that the only evidence against Cotroni is in respect of a conspiracy not covered by the indictment.

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I would, accordingly, affirm the judgment of the Court of Appeal for Ontario, dismiss the appeal of John Papalia, and dismiss the Crown appeal in the case of Vincent Cotroni.

Appeals dismissed.

Solicitor for Papalia: B. Clive Bynoe, Toronto.

Solicitor for the Crown: The Ministry of the Attorney General for Ontario, Toronto.

Solicitors for Cotroni: Carter & Powell, Toronto.