CONSPIRACY  TO  MURDER:  The  law  of  conspiracy  in  Canada

I think you will find this article interesting because it deals with the crime of conspiracy to commit murder.  Because the people I am writing about are young offenders, I am only using their initials in this article.

In the fall of 2002, two teenage sisters in Ontario agreed to kill their mother.  While the older sister, R, first came up with the idea, the younger sister, T, joined in the agreement.  At different times, the sisters may have abandoned the plan, but it was clear that by January 2003, they had settled on their intention to kill their mother.  

Their motive (according to them) for the murder was because of their mother’s behavior as a result of her alcoholism.  At the time the sisters were 16 and 15 years of age when they killed her.  

Their mother died on January 18, 2003 as a result of drowning while affected by acute alcohol intoxication.  The deceased also had codeine in her blood at 3.5 times the upper therapeutic level, a level consistent with the consumption of four to six Tylenol 3 tablets.  The evidence established that the sisters had plied the deceased with alcohol and Tylenol 3 until she was unconscious then they placed her in the bathtub and then R held her head underwater until she drowned. 

When they were convinced that their mother was dead, the two sisters met up with the two friends, at a local restaurant called Jack Astor’s, so that they could establish an alibi.  The sisters then returned home to “discover” that their mother had drowned in which they then called 911.  The authorities originally believed that the deceased had drowned accidentally.

After the police investigated the so-called accident, they concluded that it was murder and that the woman’s two daughters had murdered their mother.  I should add however that when they got the insurance from their mother’s estate, they really had a great time spending the money which does make me wonder if that was their real motive for killing their mother.

The two girls were convicted of first degree murder and they were sentenced to ten years in closed custody. They are now free.

This article isn’t so much about them as it is about a fellow teenager (possibly a boyfriend of one of the girls) and his role in the murder of the girl’s mother.

It was the theory of the Crown (prosecutor) that the appellant (who was a friend of one of the sisters and was appealing his conviction and I shall refer to as JF) joined in the sisters’ conspiracy and among other things, suggested the use of Tylenol 3 (which has codeine in it) and provided the pills that were ultimately used to drug the deceased.  He also agreed to assist the girls in the fabrication of the alibi by meeting the sisters at the restaurant after the murder and confirming that they were with him at the time of the murder.  He had been charged with conspiracy to commit murder. Such a charge would have the same consequences of being convicted of murder.

There was some evidence implicating the appellant in the conspiracy, much of the evidence against JF was in the form of his own words, recorded in MSN chat room discussions between the appellant and the sisters, especially with T. 

Now on the surface, it would appear that JF had in fact conspired with the sisters to assist in the murder of the sister’s mother. Nevertheless, he appealed on seven grounds. However, the only one I am going to present to you is the one where he (through his lawyer) argued that the trial judge erred in instructing the jury that JF could be liable as a party to conspiracy under section 21(1) of the Canadian Criminal Code. It reads as follows:

22. (1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.

What this means is that if at any time before the objective of the conspiracy had been attained, that is the drowning of the mother by her two daughters, JF abetted or encouraged the sisters who are also conspirators to pursue their objective of drowning the mother, he would become a party to the criminal offence of conspiracy by virtue of s. 21 of the Code. 

His lawyer argued that there was no offence known in any Canadian law of attempted conspiracy, that which he in fact had done. The Supreme Court of Canada agreed in another case that one cannot be convicted of attempt to conspire to commit a basic offence. 

The Supreme Court, explained the rationale for the crimes of conspiracy and attempt and why that rationale did not justify a crime of attempt to conspire when it said in part;

 “By its very nature, 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 behavior 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.” unquote 

A person can be liable as a party to conspiracy only if the Crown proves an agreement by at least two other people to commit a substantive offence.  If no agreement materialized, the alleged party’s conduct would be at most an attempt to conspire which is not punishable in law.

Let me give you an example. If you make a suggestion on how to rob a particular bank with two men who intend to rob the bank and the bank robbers ignore your suggestion when they are robbing the bank, then you have committed no crime of conspiracy.  To prove my point, suppose you suggested that they make themselves invisible which is ridiculous, have you really conspired with the robbers to rob the bank? I hardly think so. However, if you suggest that they wear certain kinds of disguises and they do exactly what you suggested they do, then it is no longer an attempt on your part. You have conspired with them to rob the bank.  

The prosecutor at JF’s trial argued that in order to find him guilty as an aider and abettor of the crime of murder, the jury would have to be instructed by the trial judge that JF knew the object of the conspiracy and that his assistance was intended to assist the conspirators in attaining their unlawful criminal object. But did JF really know that the sisters intended to murder their mother by first making her unconscious and then putting her into the bathtub and drowning her?

Liability for aiding a conspiracy would require proof that the accused did or omitted to do something for the specific purpose of aiding another to commit the offence of conspiracy.  That degree of mens rea (criminal intent) imports a sufficient level of fault to warrant criminal liability.  It would not be enough that JF’s acts had the effect of aiding the conspiracy; he also had to have had the requisite mens rea. The essence of the conspiracy is the agreement and that the crime is carried out whether or not the unlawful object is actually achieved.  By that, I mean that if you counselled two men on how to rob a bank and they attempt to rob the bank and are unsuccessful, you would still be guilty of conspiracy.

To be a party to the offence of conspiracy, it must be proved that JF aided the two sisters in the commission of the murder of their mother and that he performed acts or omissions for the purpose of aiding the commission of that offence which brought about the death of the two sister’s mother.

If any acts performed after the agreement between JF and the sisters was formed and did not aid in the commission of the offence of conspiracy then JF could not be a party to the offence of conspiracy for facilitating the conspirators in attaining their object of murdering their mother. Although acts performed after the agreement was reached could have aided in the commission of the murder of the sister’s mother but wasn’t used, JF could still not be convicted with the offence of conspiracy to murder the woman.

The Supreme Court of Canada ruled that 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. It would appear that in JF’s case, he and the sisters acted in concert in pursuit of a common goal and there was also a meeting of the minds between JF and the two sisters. 

Thus, in this case, JF could be guilty of conspiracy if he aided or abetted the sisters within the meaning of section 21(1) to pursue their unlawful object, even if they ultimately did not carry out the plan or the deceased had survived the attempt on her life.

Two questions must be looked into. Was there a conspiracy between two or more persons?” and was JF a member of the conspiracy?”  In searching for an answer to the second question, consider the following two steps:

The first requires you to consider what JF said and did. The second question is one in which you only have to consider if you have been satisfied from JF’s own words and conduct that he was probably a member of the conspiracy and if he was, then it requires you to consider what the other members of the conspiracy said and did in furtherance of their agreement.

During the trial, there was evidence submitted that JF supplied Tylenol 3 to one of the sisters knowing it was to be used to drug the deceased as part of the murder plan. This was important evidence showing that he had joined the conspiracy or was a party to it by aiding or abetting the sisters to pursue the murder plot.  Indeed, the autopsy established that the deceased had ingested a quantity of Tylenol 3 before her death.   The evidence about supplying the Tylenol 3 came from a number of sources such as a chat on a MSN chat room January 13 between the appellant and T and a chat on the MSN chat room on January 18 between one of the sisters and the testimonies of both sisters when they took the stand. It was JF who first raised the idea of using Tylenol 3 in his chat with T on January 13, less than a week before the murder.  Now if the Tylenol 3 had not been used, then the outcome of his trial would be different.

Similarly, evidence that JF attended at Jack Astor’s for the purpose of assisting the sisters with an alibi was circumstantial evidence of his membership in the conspiracy to murder the deceased.  The idea of going to Jack Astor’s after the murder in an attempt to establish an alibi for the sisters appears to have originated in a chat between the appellant and T on January 13.  Three days later, on January 16 in another chat with T, JF says:  “Saturday's plan is still a go.”

There was certainly no doubt in the minds of the jurors hearing the case that JF was in the conspiracy right up to his eyeballs.

At the appeal, JF’s lawyer was really reaching in hopes that his argument would show that his client was innocent of conspiracy. The lawyer submitted that this chat between JF and AS was inadmissible because AS was not alleged to be a co-conspirator and the chat could not have been in furtherance of the conspiracy.  He submitted that there was no admissible evidence that JF supplied the Tylenol 3 that was used by R to kill her mother.  The lawyer wasn’t reaching for the sky—he was reaching for a distant constellation that was obviously out of reach.

The January 18 chat between R and AS was admissible for proving that JF was a member of the conspiracy in two ways. First, it was admissible based on all the evidence that there was a conspiracy between R, T, and the JF.  It was not open to the jury to consider the January 18 chat as proof of the JF’s probable membership in the conspiracy. However, once the jury decided that based on the direct evidence, JF was a probable member of the conspiracy, then the January 18 chat would be admissible that he was a member of the conspiracy beyond a reasonable doubt, so long as the chat was made in furtherance of the conspiracy which in fact, it was.

Taken in isolation, parts of the January 18 chat logs appear to be narrative or recounting of past events before the woman was killed, which ordinarily would not be considered to be made in furtherance of the conspiracy since the sisters had already planned to give the mother the Tylenol 3 pills. However, given the context in which this conversation took place, it is evidence that this particular chat had the purpose of advancing the objectives of the two sisters of the conspiracy and is therefore distinct from mere narrative.

The concealment of the murder and its planning, part of which included the alibi, were integral parts of the conspiracy and therefore this conversation made between JF and the sisters was made in furtherance of the conspiracy. There was sufficient evidence from which it can be inferred that JF didn’t dispute the statement uttered during the conversation with the two sisters about him supplying them with the Tylenol 3. His silence alone is evidence that he didn’t dispute that statement being made by one of the sisters especially when he was in a position to dispute that statement if it was wrong.

Accordingly, in my respectful opinion, the January 18 chat in which the two sisters discussed JFs role in the planning of the murder and the alibi that JF had with the sisters was properly admitted as evidence against JF at his trial.

There was abundant other evidence such as the results of the autopsy with respect to the victim ingesting Tylenol 3 and the subsequent meeting of JF and the sisters at Jack Astor’s to confirm his role in the conspiracy.

JF’s lawyer for the appeal argued that the trial judge erred in instructing the jury that JF’s attendance at Jack Astor’s was directly admissible against him to prove he was probably a member of the conspiracy for the purpose of the co-conspirators’ exception, for two reasons. First, he argued that attendance at Jack Astor’s, after the object of the conspiracy had been accomplished; it was not capable of showing that JF was a member of the conspiracy. Second, he submitted that the trial judge erred in instructing the jury that the JF’s presence was direct evidence of his probable membership in the conspiracy.

Higher courts have ruled in the past that a conspiracy to avoid detection should not, as a matter of law, be engrafted on to every conspiracy.  To do so, could make acts and declarations by co-conspirators well after the object of the conspiracy had been accomplished, wrongfully admissible as evidence of a conspiracy.

However, JF’s own acts and declarations after the conspiracy could be proof of him having membership in the conspiracy. Unquestionably the acts and declarations of him after the deceased was killed (if relevant) are admissible against him; similarly, the joint declarations or acts of two or more accused are also admissible against them hence the necessary proof of the existence of a conspiracy between the three of them was evident.

The attendance at Jack Astor’s was within the object of the conspiracy and closely connected in time with it.  The meeting at Jack Astor’s was an integral part of the plan since the sisters wanted to be able to show that they had been away from the house when the deceased “accidentally drowned” and to explain how they “discovered” the body.  JF’s attendance at Jack Astor’s after the killing for the purpose of assisting the sisters in successfully carrying out the murder plan by providing them with an alibi was evidence of his probable membership in the conspiracy.  In fact, when linked with his earlier chat with T about the alibi, it was very compelling evidence of his membership in the conspiracy. Attendance at the dinner with the sisters at Jack Astor’s was a piece of circumstantial evidence which, together with other evidence, could prove he was a probable member of the conspiracy. The trial judge did not err in this respect.

The thrust of the JF’s defence was that his discussions about killing the deceased were not intended to be serious.  Talk about reaching. That argument wouldn’t even get off the ground. In his closing argument at JF’s trial, his lawyer said to the jury in part; (Brace yourself for it)

“Now, you’ve heard in these chats, certainly that these young people are talking about a lot of stuff that some teenagers talk about, maybe some wild teenagers to some extent. They’re talking about drugs, they’re talking about alcohol and they’re talking about sex sometimes, they’re talking about gossip, and they’re talking about their dreams, about jokes and there’s a lot of black humour. And even in those chats where the girls are – are talking about what they’re going to do, you can see that the bulk of those conversations relate to completely different things. R, while she is supposedly planning this murder and talking about the plan, her focus is on this pregnancy hoax throughout and you can see that theme, and not only that, you can see her concern is also, for the most part, about getting stoned or high. I suppose if any of you have any experience with drama, you’re going to know that when you have a script, there’s two ways you can read it. You can read it in a very sinister way or you can read it as if it’s a joke. And I submit to you, it may not have been a joke for T, but it clearly was a joke to JF. And if you read it carefully, I submit to you, you’re going to come to that conclusion. But again JF says, “as far as I was concerned they were.  I was talking shit with friends.” And he says, “If you were to go talk to any of my friends, if you were to get the chat logs, you would see how many ridiculous conversations we have and black humour cause there’s a lot of black humour and we see that in a lot of the TV shows unfortunately.”unquote

The jury may have swallowed that garbage if the dead woman didn’t have five or six tablets of Tylenol 3 in her system and if he didn’t show up at Jack Astor’s as the alibi he proposed for the sisters in his chat with them.

JF’s defence was the same to both bases of liability, namely, that his comments in the chats were not to be taken seriously.  If the jury accepted this position or had a reasonable doubt then the appellant would be acquitted however the viability of that defence did not depend on whether JF was a principal in, or a party to the conspiracy.  Conversely, if the jury rejected that position beyond a reasonable doubt, a finding of guilt was inevitable.  In any event, the JF’s chats, especially the chat of January 13 with T, are direct evidence, in his own words, of his role in the conspiracy. His liability as a party or a member of the conspiracy was overwhelming. Accordingly, the court of appeal confirmed his conviction by the lower court

At trial, the Crown counsel argued that a custodial sentence could be imposed either under section 39(1)(a), that the appellant had committed a violent offence, or section 39(1)(d), that this was an exceptional case.  In imposing a sentence of 18 months (12 months custody and 6 months conditional supervision), the trial judge relied only the fact that the offence committed by the appellant was a violent offence. 

The lawyer for JF argued that conspiracy to commit murder is not a violent offence. The Supreme Court of Canada however ruled in the past that a violent offence is “an offence in the commission of which a person causes, attempts to cause or threatens to cause bodily harm.” Clearly, his chats with the sisters was evidence that he caused the sisters to use Tylenol 3 to put their mother into an unconscious state so that she could be drowned in the bathtub. That is clearly a violent act on his part. The facts of this case fall within the definition in that JF caused or at the very least attempted to cause bodily harm to the deceased by supplying the Tylenol 3 and encouraging T to commit the murder.

Further, the trial judge began her list of aggravating factors with the following:

(1)    The lack of remorse and lack of understanding of his involvement in the offence.  The appellant showed little insight into the harm to which he contributed and the fact that his actions assisted in a murder.

Lack of remorse is not, ordinarily, an aggravating circumstance. It should only be considered aggravating in very unusual circumstances such as where the accused's attitude toward the crime demonstrates a substantial likelihood of future dangerousness. Even then the trial judge must be careful not to increase the sentence beyond what is proportionate having regard to the circumstances of the particular offence.

(2)   The appellant is by all accounts a very intelligent young man and as such should have been aware of the harm that his actions could bring about.

(3)   The appellant comes from a very supportive background. There is nothing in his background to explain his involvement in this crime.

His appeal from the conviction was refused however his appeal of the sentence was granted.  His 18-month sentence was reduced to 8 months custody and four months conditional supervision in the community.