It is misdirection for a trial judge to tell the jury, at the trial of a person charged of having conspired with another person to commit the indictable offence of kidnapping, that the offence of conspiracy was complete by the making of the agreement to kidnap even though the other alleged conspirator never at any time had had any intention of carrying the agreement into effect.
The mere agreement, without the intention of both parties to carry into effect the common design, is not sufficient. There must exist an intention not only to agree but also an intention to put the common design into effect. Per Locke J. (dissenting) : The gist of the offence of conspiracy is the agreement of two or more persons to commit any indictable offence, and the mens rea is to be found in the intention to offend against the penal provisions of an act.
Therefore, the agreement entered here between the two conspirators to commit the offence of kidnapping was a conspiracy within the meaning of s. 573 of the Criminal Code. There was an agreement in the eyes of the law and the fact that one of the parties in the agreement did not intend to carry out his part of the bargain could not affect the legal nature of the arrangement.
The portion of the judgment of Willes J. in Mulcahy v. The Queen ((1868) L.R. 3 H.L. 306), purporting to define criminal conspiracy, was never intended as such, but rather was it a statement of the offence covered by the statute under which that case was tried. R. S. Wright's The Law of Criminal Conspiracies and Agreements (1873 ed.); Poulterers Case (1611)
9 Co. Rep. 55b; Reg. v. Best (1705) 1 Salk. 174; O'Connell v. Reg. (1844) Cl. & F. 155; Reg. v. Aspinall (1876) L.R. 2 Q.B.D. 48; Brodie v. The King [1936] S.C.R. 188 and Bank of New South Wales v. Piper [18971 A.C. 383 referred to. Per Fauteux J. (dissenting): In the circumstances of this case, the exchange of promises could not be treated as having never existed because of the alleged mental reservation on the part of one of the two parties.
Mental reservations are not apt to defeat the natural consequences of words accompanied by deeds.
In this case, the common intention was assented to and encouraged by word and by deeds, and that was sufficient to constitute the conspiracy even though one of the parties did not intend to go through with the execution of the agreement.
Taschereau, Rand, Estey, Locke and Fauteux JJ.
Cases cited
- Brodie v. the King scr-1936-188