Proximity to the Attempted Crime: A Delicate Line Drawn in R. v. Déry

R v Déry, [2006] 2 SCR 669 [Déry], is a thought-provoking case regarding the possibility of attempted conspiracy. While it was ultimately held not to be a crime in Canada, the discussion that arose over the issue in Déry highlights a potentially contentious future for the criminalization of inchoate acts.

Jacques Déry and Daniel Savard were both charged with conspiracy to commit theft and conspiracy to possess stolen goods. These charges came about after their discussions concerning the possibility of stealing liquor were intercepted during an unrelated investigation. At trial, the judge noted that they had not agreed to steal or possess the liquor under consideration, and the accused were therefore acquitted of conspiracy. However, he did convict both accused of attempting to conspire.

The Court of Appeal of Quebec affirmed these convictions, while the dissenting judge, Forget J.A., would have allowed their appeals on the ground that attempted conspiracy is an offence unknown to Canadian law. While he was the only judge to raise this issue at that time, it was the issue before the Supreme Court of Canada (“SCC”).

The question before the SCC was whether or not attempted conspiracy is indeed an offence in Canada recognized by our Criminal Code. As Fish J. wrote with regard to this possibility in his introductory paragraphs, “I would let sleeping laws lie,” ultimately deciding that attempted conspiracy in this instance was not a crime.

The Court began its analysis by discussing the three instances in which Canadian lowers courts had previously considered this issue.

In R v Dungey (1979), 51 CCC (2d) 86 (Ont CA) [Dungey], Dubin J.A. considered the purpose of this debated offence. He stated that while conspiracy is punished to prevent the commission of the substantive offence, there is little justification in punishing an act that falls short of conspiracy. Holding that “there is no such offence as attempt to conspire to commit a further substantive offence,” the issue of remoteness rose to the fore. Dubin did entertain the possibility of an attempt to conspire when the conspiracy itself is the substantive offence, such as conspiracy to commit treason. In such a situation, the issue of remoteness becomes less glaring, and the Court states that this question currently remains open.

Next the SCC refers to R v May (1984), 13 CCC (3d) 257 (Ont CA) [May], where the conviction was for conspiracy to obstruct justice. Obstruction of justice was rightly characterized in that case as a substantive offence, and Martin J.A. applied the legal principles set out in Dungey to the facts in May. Obstruction of justice was held to fall within the exception explained by Dubin J.A. in Dungey, in which an attempt to conspire can be criminalized if the conspiracy itself is the substantive offence.

Finally, the SCC discusses R v Kotyszyn, (1949), 95 CCC 261 (Qc CA) [Kotyszyn], in which the Quebec Court of Appeal unanimously agreed that the Crown’s appeal be dismissed in a case in which the accused at trial had been charged with attempted conspiracy and acquitted. Three judges held that the charge did not attach to the facts of the case, while only one judge discussed attempted conspiracy, holding that it was a crime. However, since the facts of the case demonstrated that the accused did not propose the agreement, but merely acquiesced to a suggestion, it was not applicable to the case.

The three cases cited by the Supreme Court demonstrate that the crime of attempted conspiracy remains open in a very narrow set of circumstances. That is, where the attempt relates to a conspiracy which itself is a substantive offence. The reason for restraint is sensible, given legitimate concerns about the risks of extending the net of criminal liability to an act or omission that is far too remote from occasioning criminal harm. This concern is a very significant factor in the SCC’s decision in Déry.

In this case neither conspiracy to commit theft nor conspiracy to possess stolen goods are in themselves substantive offences. Both are inchoate crimes, so neither fits the bill for liability based on attempt.

Also significant for the SCC was the fact that there is no free standing offence of attempted conspiracy found in the Code. The SCC was not convinced that a fair reading the Code’s existing attempt and conspiracy provisions allowed for the recognition of such an offence. According to the SCC, it has not been established that under section 24 of the Criminal Code, RSC 1985, c C-46, that the definition of attempt captures an attempt to conspire. Under s.24(2), a test of proximity separates mere preparation from attempt; the question of whether an act or omission is mere preparation and too remote to constitute an attempt to commit the offence is said to be a question of law. A continuum between bad thoughts and substantive crimes is assessed by the courts, which must then situate the point in which the criminal law intervenes.

Conspiracy has been further characterized as an act that precedes the next step after preparing to carry out a plan; for instance, in United States of America  v Dynar, [1997] 2 SCR 462 [Dynar], conspiracy was described as “a meeting of the minds with regard to a common design to do something unlawful.” This is punished to prevent the unlawful object from being attained, and to prevent serious harm from occurring. Again, courts must establish whether the acts that precede a conspiracy are proximate enough to a substantive offence to warrant criminal sanction.

With these principles in mind, the Court found that Mr. Déry had not committed attempted conspiracy. While Mr. Déry discussed a crime and hoped to commit it with others, no party ever agreed to commit the crimes they had discussed. Confirming that criminal law does not punish bad thoughts that were abandoned before an agreement was reached, the SCC allowed the appeal and ordered that acquittals be entered instead.

The Supreme Court’s decision in Déry was primarily concerned with the remoteness of attempted conspiracy. The SCC’s reasoning, namely that the purported crime is absent from the Criminal Code and that it is not clearly identified in case law, was underscored by the consideration that criminalizing attempted conspiracy amounted to “a risk that a risk will materialize.” Such a remote possibility does not require criminal sanction. Indeed, as Simmons J.A. wrote in R v Yung Chan (2003), 178 CCC (3d) 269 (Ont CA) [Chan], criminalizing acts that precede harmful conduct “could extend the criminal law too far to reach behind those acts and criminalize behaviour that precedes those acts.”

The Court in Déry agreed that it is difficult to grasp further than the law of conspiracy already allows by criminalizing attempted conspiracy. Yet by affirming Dubin’s decision in Dungey, the Supreme Court has left open the possibility for this issue to creep back into the courts, and Simmons J.A.’s concern in Chan remains valid. Permitting a charge of attempted conspiracy when the conspiracy itself is a substantive offence, while drawing the line at the same crime when the conspiracy is with regard to another offence, demonstrates that proximity to the actual crime is central to the criminalization of the attempt. A very delicate line is being drawn by the SCC in making this distinction.

While the facts of each case must fall within the constraints laid out in Dungey and confirmed in Déry, the SCC has affirmed that attempted conspiracy may be punished in certain situations, though not within the facts of the case at bar. Déry may ultimately prove to be a very significant case, as it lays the groundwork for future attempted conspiracy charges, as long as the act is considered proximate enough to the substantive crime.