Supreme Court tightens rules on criminal conspiracy

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The Supreme Court of Canada has tightened the guidelines that determine when a suspect becomes a party to a criminal conspiracy, in a judgment that defence lawyers say clarifies conflicting approaches and could have an impact on drug cases.

The highest court issued its ruling Friday, in an appeal from J.F., who as a teen was convicted of conspiring with two Toronto-area sisters to kill their mother, in the famous 2003 Bathtub Girls murder case. In a unanimous decision, the court dismissed J.F.'s appeal of his conviction and upheld his eight-month sentence.

But Mr. Justice Michael Moldaver said in the decision that people should be considered a liable party only if they helped initiate the deal at the heart of a conspiracy, or help new members join an existing scheme.

He rejected the broader scope favoured by Ontario and British Columbia courts, where liability can be attached to someone who helped further the conspiracy.

"Agreement is a central element to the offence of conspiracy. Conversely, an act done in furtherance of the unlawful object is not an element of the offence of conspiracy. Although such acts can serve as circumstantial evidence to support the existence of a conspiracy, they are not themselves a component of the [guilty act] of conspiracy," Judge Moldaver wrote.

James Morton, a past president of the Ontario Bar Association, said the ruling will be important in trafficking trials. "Drug cases are very often conspiracy cases and the question [is] of who is liable for, say, importing cocaine or selling ecstasy."

For example, Mr. Morton said, in a drug-importing plot that fails and the narcotics were never delivered, people only charged with conspiracy could argue they weren't part of the formation of the agreement. "If they can show that they were not a party that did anything to help the agreement, you know, they came in later, they provided the truck or something like that, then they may escape liability completely."

Toronto defence lawyer Scott Hutchison said the judgment maps out a way for lower courts to sort out liability in complex conspiracy cases.

"It's always complicated when you have a situation where the Crown relies on a theory that has layers of inchoate liability or layers of incomplete liability. And that's what the court seems to be wrestling with here, how do you layer on the different theories together without capturing too much conduct. You don't want to have a rule that anybody who has a nasty thought turns into a criminal – but at the same time you want to catch activity that's far enough down the road toward the commission of an offence that it deserves to be stopped."

The narrower approach Justice Moldaver recommended is favoured by Alberta and Quebec and typified by the 2008 case of Brian Trieu, an Edmonton man who sold cellphones to five men involved in a cocaine plot.

Even though he knew he dealt with drug traffickers, Mr. Trieu was acquitted because the trial judge found he was not a member of the conspiracy. "The Trieu model represents a legitimate basis upon which party liability for the offence of conspiracy may be found," Justice Moldaver wrote.

Frank Addario, a past president of the Criminal Lawyers' Association, said the Moldaver ruling brought some certainty to a hazy legal area. "The use of conspiracy laws is dangerous to liberty because it rests on vague, shifting theories of liability. It casts the net wide and captures the guilty and innocent alike, a favourite tool of American prosecutors," Mr. Addario said.

Despite favouring a tighter application of the law, Judge Moldaver said there was "overwhelming" evidence J.F. was a member of the conspiracy and guilty.

The teenaged sisters had plied their mother with alcohol and Tylenol 3 until she was unconscious, before drowning her in a bathtub. Court heard that J.F. suggested the use of Tylenol 3, supplied the pills and was part of their attempt at an alibi.

The two sisters, who were 15 and 16, were convicted of first-degree murder.