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Evidence - Hearsay - Co-conspirator's Exception. R. v. Cargioli
In R. v. Cargioli (Ont CA, 2023) the Court of Appeal considered appeals by three defendants from convictions, one for first-degree murder and two for second-degree murder. In these extracts the court extensively considers the co-conspirator’s exception to the hearsay rule, here in the context of a jury charge:(ii) The instructions on the co-conspirator’s exception to the hearsay rule
[71] The Crown alleged that the appellants entered into an agreement to rob Mr. Taleb and, that in furtherance of that agreement, one or more of the appellants stabbed and killed Mr. Taleb. The Crown’s theory brought into play the exception to the hearsay rule referred to as the co-conspirator’s exception. That exception makes acts and declarations done in furtherance of a common design admissible against all parties to the common design. The application of the co-conspirator exception is governed by the three-step process laid down in R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938, at p. 947:Step One: The jury must consider all of the evidence and decide whether the alleged agreement has been proven beyond a reasonable doubt.
Step Two: If the alleged agreement is proved, the jury must decide, based on evidence directly admissible against a particular accused, or other alleged conspirator, whether, on the balance of probabilities, that person is probably a party to the agreement.
Step Three: If the jury is satisfied that an accused is probably a party to the agreement, the jury must then decide whether the Crown has proved beyond a reasonable doubt that the accused is a party to the agreement. To do so, the jury must consider the evidence directly admissible against an accused and the acts and declarations done or made in furtherance of the agreement by anyone else who was found at step two to be a probable party to the agreement. [72] Counsel for Mr. Kamal submits the trial judge made reversible errors at each step of the Carter instruction. Counsel contends that the trial judge erred at Step One by instructing the jury that, in determining whether the Crown had proved the agreement to rob, the jury could take into account acts and statements of the alleged parties to the agreement, even if those acts or statements were not done in furtherance of the agreement, or during the currency of the agreement. Counsel points specifically to the admission by Mr. Cargioli and Mr. Morrisson in their statements to the police that there was a plan to rob Mr. Taleb. Counsel asserts that the statements to the police were not made in furtherance of the agreement and were made after the agreement had ended. For either or both reasons, counsel argues the evidence could not be used by the jury in deciding whether the agreement existed at step one of Carter. Counsel makes the same point in respect of the admissions made at trial by Mr. Morrisson and Mr. Cargioli that there was an agreement to rob Mr. Taleb.
[73] Counsel’s submission blurs the distinction between step one and step three of the Carter inquiry. The question at step one is the existence of the agreement, and not the identification of the parties to the agreement. Step one is not concerned with whether the evidence shows someone to be a party to the agreement, but only with whether the evidence supports the inference that the agreement existed.
[74] Evidence of acts done and statements made by alleged parties to an agreement can amount to circumstantial evidence of the existence of the agreement if, as a matter of common sense and logic, they make the existence of the agreement more likely. Used in this way, the evidence is not hearsay, and its admissibility is not dependent on whether the act or statement is in furtherance of the agreement, or was done or made during the existence of the agreement. For example, the statement of a person that he was a party to a previous agreement can, as a matter of common sense, make the existence of that prior agreement more likely. The statement would be admissible at stage one of the Carter inquiry: see R. v. Puddicombe, 2013 ONCA 506, 299 C.C.C. (3d) 543, at paras. 111-14, leave to appeal refused, [2013] S.C.C.A. No. 496.
[75] In R. v. Bogiatzis, 2010 ONCA 902, 285 C.C.C. (3d) 437, at para. 25, Rosenberg J.A., with his usual clarity, explained the very different nature of the inquiries required under steps one and three of the Carter inquiry:Assume a conspiracy allegedly involving only an agreement between A and B in which A gives a statement to the police in which he says that he and B conspired to traffic in cocaine. Using all the evidence at stage one, including the statement, the jury could conclude beyond a reasonable doubt that a conspiracy involving A and B to traffic in cocaine existed. However, the statement has a limited use. It could be used to establish the existence of the conspiracy at stage one, and can also be used to show A’s probable membership in the conspiracy at stage two. However, as against B, the statement cannot be used to show that B was a probable member of the conspiracy at stage two. [76] The reasoning in Bogiatzis reflects the analysis in R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694, at paras. 73-77: see also R. v. Smith, 2007 NSCA 19, 216 C.C.C. (3d) 490, at paras. 190, 235-36, aff’d 2009 SCC 5; R. v. Collins (1999), 1999 CanLII 13905 (NL CA), 133 C.C.C. (3d) 8 (Nfld. C.A.), at paras. 2, 93; R. v. Tran, 2014 BCCA 343, 316 C.C.C. (3d) 270, at paras. 103-07; D. Paciocco, P. Paciocco, L. Stuesser: The Law of Evidence, 8th ed. (Toronto: Irwin Law Inc., 2020), at pp. 202-05.
[77] In a footnote in Puddicombe, the court left open the question of whether a confession admitting involvement in an agreement to commit a crime could be admissible at step one of the Carter analysis. In Collins, the Newfoundland Court of Appeal held that a confession could be admitted for that purpose. The observations in Barrow and Bogiatzis strongly suggest that a statement to the police admitting involvement in an agreement will qualify as evidence of the existence of the agreement at step one of the Carter analysis.
[78] I see no reason why the timing of a particular statement, or the person to whom that statement is made, should determine its admissibility at step one of the Carter analysis as evidence of the existence of the agreement. A statement made while an agreement is ongoing can provide circumstantial evidence of the existence of the ongoing agreement. Similarly, a statement made in reference to a previous agreement can constitute circumstantial evidence that the agreement previously existed. Once it is understood that an act or statement is considered at step one of the Carter analysis only as circumstantial evidence of the existence of the agreement, distinctions based on the timing of the act or statement, or the person to whom the statement is made, become potentially significant only to the probative value of that evidence as proof of the agreement.
[79] There may be circumstances in which a specific act or statement referring to a prior agreement does not, as a matter of common sense or logic, make the existence of that agreement at the earlier time more likely. In those circumstances, the evidence will not be admissible at step one of the Carter inquiry, not because of any special evidentiary rule, but because the evidence is not relevant to the existence of the agreement and, therefore, cannot be admitted.
[80] The appellant relies on R. v. Dawkins, 2021 ONCA 113, 155 O.R. (3d) 111, to support the contention that the admissions of Mr. Morrisson and Mr. Cargioli as to the existence of the agreement to rob were not admissible at step one of the Carter inquiry. Dawkins involved a guilty plea to a conspiracy charge entered by a co-accused in a prior proceeding. The trial judge told the jury that the co-accused’s guilty plea at the prior proceeding was conclusive evidence of the existence of the agreement at step one of the Carter inquiry.
[81] Dawkins is distinguishable. This case does not involve a guilty plea made at a prior proceeding. Nor, in this case did the trial judge tell the jury that any admission made by an accused was conclusive as to the existence of the agreement. Instead, he referred to those statements as part of the evidence to be considered at step one of the Carter analysis. To the extent that the trial judge did refer to the admissions by Mr. Morrisson and Mr. Cargioli, he was not referring to guilty pleas at a prior proceeding, but rather to admissions made as part of the proceedings before the jury. Dawkins does not assist the appellants.
[82] I see no error in the trial judge’s instruction on step one of the Carter analysis. I would add that the evidence of the existence of an agreement to rob Mr. Taleb was overwhelming and not really in issue at the trial. Even Mr. Kamal, the only appellant to argue that he was not a party to the agreement to rob, did not suggest that the agreement did not exist. Any error in the instruction at step one could not have prejudiced the appellants.
[83] Counsel for Mr. Kamal submits the trial judge erred at step two of the Carter inquiry by telling the jury they could consider evidence of conversations to which Mr. Kamal was not a party in deciding whether he was likely a party to the plan to rob Mr. Taleb.
[84] The trial judge told the jury that certain conversations Mr. Cargioli had on the phone with other parties to the agreement to rob could be considered in assessing whether Mr. Kamal was probably a member of the agreement, as required at step two of the Carter analysis. These conversations occurred in Mr. Kamal’s car while he was driving Mr. Cargioli, Mr. Morrisson, and others to Mr. Taleb’s residence for the purposes of robbing him. Some of the conversations occurred almost immediately before the robbery began. There was evidence that the conversations were about the robbery.
[85] I do not agree that the trial judge erred in his instruction as to the potential use of the evidence of the phone calls during the trip to Mr. Taleb’s home. It was open to the jury to infer that the conversations were about the imminent robbery of Mr. Taleb. It was also open to the jury to infer that Mr. Kamal overheard the conversations and, yet, continued to drive Mr. Cargioli and the others toward the scene. The evidence was directly admissible against Mr. Kamal to show his knowledge of the robbery plan and his participation in that plan. The evidence was properly left with the jury at step two of the Carter analysis.
[86] Counsel further contends that the trial judge wrongly told the jury that they could infer Mr. Kamal’s likely involvement in the plan to rob based on an inference as to “the co-accused’s state of mind or probable actions of recruitment”. The trial judge told the jury in reference to the evidence admissible against Mr. Kamal at step two that:You can also decide whether or not in all the circumstances to draw the inference that a group going to commit an armed robbery would not recruit a person to drive who was not in on the plan. [87] As I read this instruction, the trial judge was telling the jury that evidence that Mr. Kamal drove the rest of the robbers to the scene of the robbery allowed for the inference that Mr. Kamal, the driver, was also a party to the robbery plan. The trial judge’s instruction that, in deciding whether to draw that inference, the jury could consider whether a group of robbers would recruit someone with no knowledge of the robbery to drive them to the scene, strikes me as no more than a suggestion that the jury use their common sense.
[88] The appellants’ objection to the trial judge’s instruction on step three of the Carter direction does not allege any error in what the trial judge said to the jury. Instead, the appellants submit that the trial judge was required to repeat the instruction when addressing the essential elements of the offence under each potential basis for liability.
[89] The trial judge told the jury that liability as a co-principal under s. 21(1)(a) required proof of a common design to rob, as did any liability under s. 21(2). Although the existence of a common design was not an essential element for liability as an aider under s. 21(1)(b), there can be no doubt that the allegation that all of the appellants were party to an agreement to rob Mr. Taleb was a central feature of the Crown’s narrative in respect of all potential bases for liability.
[90] I do not, however, agree that it was essential to a proper charge that the trial judge repeat the Carter instruction, presumably three times – once for each basis for liability. The Carter instruction explains an evidentiary rule used when deciding whether the Crown has proved beyond a reasonable doubt that an individual is a party to a common unlawful design. I see no reason to repeat the evidentiary rule when instructing the jury on the essential elements of liability applicable to the various modes of criminal participation described in s. 21(1) and s. 21(2) of the Criminal Code.
[91] The trial judge did explain the elements of liability as a co-principal, aider, or as a party to a common design to rob. He also referred, without detail, to a good deal of evidence relevant to those considerations. A repetition of the Carter instruction would not have advanced the trial judge’s explanation of the basis for liability under the various provisions of the Criminal Code. Even if it might have been helpful to repeat the Carter instruction, given only a short time before the trial judge addressed the elements of liability, that repetition cannot be said to have been essential to a proper charge. The jury was given a well-indexed written version of the charge. They could readily find and refer to the Carter instruction, if needed, when reviewing the various bases for liability under s. 21(1)(a) and s. 21(1)(b) and s. 21(2). . R. v. Dinall
In R. v. Dinall (Ont CA, 2023) the Court of Appeal considered the co-conspirator's hearsay exception:[21] The co-conspirator’s exception to the hearsay rule permits the statements of an accused’s alleged co-conspirator, made in furtherance of the conspiracy, to be admitted as evidence against the accused if the following three-part test is met:a. The Crown must prove the existence of a conspiracy, which in this case is a conspiracy to traffic cocaine, beyond a reasonable doubt.
b. If the trier of fact is satisfied that the conspiracy exists, the Crown must prove on a balance of probabilities, and based on the evidence that is directly admissible against the accused, that the accused is a member of the conspiracy.
c. If the trier of fact concludes on a balance of probabilities that the accused is a member of the conspiracy, the trier of fact must then go on to decide whether the Crown has proven beyond a reasonable doubt whether the accused is a member of the conspiracy. At this step, the trier of fact can apply the hearsay exception and consider statements made by co-conspirators in furtherance of the conspiracy as evidence of the accused’s guilt.
R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938, at p. 947; R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694, at para. 73; see also R. v. Tello, 2023 ONCA 335, at para. 42; R. v. Khan, 2022 ONCA 698, at para. 40, leave to appeal refused, [2022] S.C.C.A. No. 455; R. v. McGean, 2019 ONCA 604, at para. 6. . R. v. Tello
In R. v. Tello (Ont CA, 2023) the Court of Appeal considers the co-conspirator's exception to the hearsay rule:[42] As a general matter, the following requirements that must be met before the co-conspirator’s exception to hearsay is engaged:a. The existence of an unlawful common purpose (in this case, a conspiracy). Where the existence of a conspiracy is an essential element that the Crown must prove beyond a reasonable doubt, the same standard applies at this stage;
b. The accused must be a member of the unlawful common design. The Crown must prove membership on a balance of probabilities; and
c. The statement in question was made in furtherance of the unlawful common design. See, R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938, at p. 946; R. v. Yumnu, 2010 ONCA 637, 260 C.C.C. (3d) 421, at paras. 336-342; R. v. McGean, 2019 ONCA 604, at para. 6. See generally, David M. Paciocco, Palma Paciocco and Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at pp. 201-206.
[43] This appeal concerns the second stage – membership in the conspiracy. After reviewing the first stage, the trial judge instructed the jury in the following manner about membership in the conspiracy:If you are satisfied, however, beyond a reasonable doubt that there was this alleged common design to import cocaine, you must next consider and decide whether Mr. Fleming, Mr. Dibben, and the accused, Mr. Tello, were probably participants in that broader common design. By the term “probably” in this context, I mean “more likely than not." This is the second step of the analysis. [Emphasis in the original.] [44] The trial judge then outlined five areas of evidence that the jury could consider in determining whether the appellant was a participant or member of the conspiracy.
[45] This instruction was consistent with the manner in which juries are regularly instructed on this issue in this Province. In David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015),[1] Final 34-B recommends that the jury be told that, whether a person is member of a conspiracy should be determined by evaluating the words and actions of that person to determine whether they were “probably a participant in the common design” (emphasis added). The trial judge used these words in his instruction.
[46] This instruction should be considered in conjunction with the trial judge’s instructions on the requisite elements of a conspiracy that the Crown is required to prove. In this context, the trial judge told the jury:A person may become a member of a conspiracy even if that person agrees to play only a minor part or role in the conspiracy. What is essential, however, is that the person has an understanding of the unlawful nature of the plan, and voluntarily and intentionally joins in it. In any case, and accused must actually agree, and intend to agree, to achieve the common unlawful purpose (i.e. in this case importing cocaine).
It is important to remember that merely being present when something happens, merely acting in the same way as others, or merely associating with others who are said to be members of a conspiracy, does not prove that a person has joined in the agreement with knowledge of its nature and purpose. A person who knows nothing of a conspiracy but who happens to act in a way that advances one of its purposes, does not thereby become a member. [Italics in the original, underlining added.] . R. v. Khan
In R. v. Khan (Ont CA, 2022) the Court of Appeal considered the co-conspirator's exception to the hearsay rule:[40] The co-conspirators’ exception to the hearsay rule permits the trier of fact to rely on the acts and statements made by an accused’s co-conspirators in determining the guilt of the accused: see R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 8. In R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938, at p. 947, the Supreme Court of Canada outlined a three-part test for determining whether statements made by co-conspirators are admissible against an accused. This court, in R. v. McGean, 2019 ONCA 604, at para. 6, summarized that test as follows:First, the trier of fact must find beyond a reasonable doubt on all the evidence that the conspiracy exists. Second, the trier of fact must find that the evidence that is directly admissible against the accused, which excludes hearsay statements by co-conspirators, proves, on a balance of probabilities, that the accused was a member of that conspiracy. Only if these first two stages are met can the trier of fact, at the third stage, consider the acts and declarations of a co-conspirator in furtherance of the conspiracy as evidence against the accused on the issue of the accused’s guilt. [Emphasis added.] . R. v. Burgess
In R. v. Burgess (Ont CA, 2022) the Court of Appeal considered the co-conspirator's exception to the hearsay rule:(i) The Governing Principles
[19] This body of wiretap evidence was advanced to support a finding that a large conspiracy was afoot and that the acts and declarations of the co-conspirators were admissible against the appellant as an exception to the rule against hearsay pursuant to the co-conspirators’ exception to hearsay set out in R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938. The substance of the test was tersely put in R. v. McGean, 2019 ONCA 604, at para. 6:In R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938, at p. 947, the Supreme Court established a three-stage test for the co-conspirators exception to the hearsay rule. First, the trier of fact must find beyond a reasonable doubt on all the evidence that the conspiracy exists. Second, the trier of fact must find that the evidence that is directly admissible against the accused, which excludes hearsay statements by co-conspirators, proves, on a balance of probabilities, that the accused was a member of that conspiracy. Only if these first two stages are met can the trier of fact, at the third stage, consider the acts and declarations of a co-conspirator in furtherance of the conspiracy as evidence against the accused on the issue of the accused's guilt. See also, R. v. Dawkins, 2021 ONCA 113, 155 O.R. (3d) 111, at paras. 39-42, per Fairburn A.C.J.O.
[20] But in this case, the corollary or obverse of the Carter rule is in play. The trier of fact must keep in mind that “where, at the end of the trial, the evidence directly admissible against the accused was insufficient to establish his or her membership in the conspiracy, the acts and declarations of co-conspirators could not be considered as evidence against the accused,” as this court explained in R. v. Chang (2003), 2003 CanLII 29135 (ON CA), 173 C.C.C. (3d) 397 (Ont. C.A.), at para. 57. See also, R. v. Kler, 2017 ONCA 64, 345 C.C.C. (3d) 467, at para. 81, per Watt J.A. . R v Kler
In R v Kler (Ont CA, 2017) the Court of Appeal comments usefully on the evidentiary issues of the co-conspirator's exception to the hearsay rule:The Co-conspirators' Exception
[63] The co-conspirators' exception to the hearsay rule permits statements made by a person engaged in an unlawful conspiracy to be received as admissions against all those acting in concert if the declarations were made while the conspiracy was ongoing and were made towards the accomplishment of the common object: Mapara, at para. 8.
[64] From the statement of the rule, we learn several things.
[65] First, not every statement made by a fellow conspirator can be enlisted in proof of another conspirator's membership in the conspiracy: R. v. Yumnu, 2010 ONCA 637 (CanLII), 260 C.C.C. (3d) 421, affirmed, 2012 SCC 73 (CanLII), [2012] 3 S.C.R. 777, at para. 341. The statement must be made by a "person engaged in an unlawful conspiracy". And as we shall see, for these purposes, a person is "engaged in an unlawful conspiracy" if his or her own acts or statements establish his or her probable membership in it.
[66] Second, a matter of timing, or better said "contemporaneity". The statement must be made by the conspirator "while the conspiracy was ongoing": Mapara, at para. 8; Carter, at p. 947. That said, on some occasions, statements made after the offence object of the conspiracy has been committed may be admissible under this exception: Yumnu, at para. 341; R. v. Sauvé (2004), 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont. C.A.), leave to appeal refused, [2005] 1 S.C.R. xv, at paras. 115-18.
[67] Third, the statement of the co-conspirator must be made "in furtherance of" the offence object of the conspiracy, that is to say, for the purpose of achieving its goal: R. v. Puddicombe, 2013 ONCA 506 (CanLII), 299 C.C.C. (3d) 503, leave to appeal refused, [2013] S.C.C.A. No. 496, at para. 116. Provided there is evidence capable of sustaining a finding that a statement of a co-conspirator was "in furtherance" of the common offence object, the ultimate decision about whether the statement is "in furtherance" is for the jury: Puddicombe, at para. 116. See also R. v. Mota (1979), 46 C.C.C. (2d) 273 (Ont. C.A.), at pp. 282-83.
[68] A final point concerns the scope of the co-conspirators' exception. Here, we are concerned with a specific statement, but the exception extends beyond statements to acts done by co-conspirators during the currency of the conspiracy in furtherance of its objects: see e.g. R. v. Garofoli (1988), 1988 CanLII 3270 (ON CA), 41 C.C.C. (3d) 97 (Ont. C.A.), at pp. 135-36, reversed on other grounds, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421; R. v. Baron (1976), 1976 CanLII 775 (ON CA), 31 C.C.C. (2d) 525 (Ont. C.A.), at p. 533.
The Co-conspirators' Exception and the Principled Approach
[69] Despite the ascendency of the principled approach to the admissibility of hearsay, the traditional or category exceptions remain presumptively in place, including the co-conspirators' exception to the hearsay rule: Mapara, at para. 15.
[70] A hearsay exception, such as the co-conspirators' exception, can be challenged to determine whether it is supported by the indicia of necessity and reliability, required by the principled approach. If necessary, the traditional exception may be modified to bring it in line with the principled approach: Mapara, at para. 15.
[71] In Mapara, the co-conspirators' exception to the hearsay rule was challenged as failing to accord with the fundamental criteria that underlie the exceptions to the hearsay rule and are the twin requirements of the principled approach – necessity and reliability. The Court concluded that the co-conspirators' exception met the necessity and reliability requirements of the principled approach. The continued vitality of the co-conspirators' exception was affirmed: Mapara, at para. 31.
[72] The Mapara court found the indicium of necessity established because of the combined effect of:i. the non-compellability of a co-accused declarant, Wasfi, who's case was severed from that of Mapara at the end of the case for the Crown;
ii. the undesirability of separate trials for alleged co-conspirators; and
iii. the evidentiary value of contemporaneous declarations made in furtherance of an alleged conspiracy. See Mapara, at para. 18; R. v. Chang (2003), 2003 CanLII 29135 (ON CA), 173 C.C.C. (3d) 397 (Ont. C.A.), at para. 105.
[73] The Court in Mapara found the reliability requirement met because the conditions imposed by Carter on the use of evidence admitted under the co-conspirators' exception provided sufficient circumstantial guarantees of trustworthiness necessary to permit the evidence to be received:i. proof of the conspiracy alleged beyond a reasonable doubt;
ii. probable participation in the conspiracy by the accused based on his or her own words and conduct; and
iii. the requirement that the acts and declarations of other likely conspirators be in furtherance of the conspiracy to be available in proof of an individual member's guilt. See Mapara, at paras. 22-26.
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