Supreme Court of Canada
R. v. Carter,  1 S.C.R. 938
Her Majesty The Queen Appellant;
Robert James Carter Respondent.
File No.: 16256.
1982: January 27; 1982: June 23.
Present: Laskin C.J. and Ritchie, Dickson, Estey and McIntyre JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR NEW BRUNSWICK
Criminal law—Conspiracy—Proof required to indicate accused’s membership in a conspiracy before hearsay exception becomes applicable—Charge to jury—Criminal Code, s. 423(1)(d).
Criminal law—Evidence—Hearsay—Conspirators’ exception—Proof required to indicate accused’s membership in a conspiracy before hearsay exception becomes applicable.
Respondent was acquitted of the charge of conspiring to import a narcotic even though there was evidence upon which the jury could have found him guilty. The Court of Appeal upheld this acquittal. This appeal is to determine if the trial judge properly instructed the jury on the standard of proof required to prove the membership of a party in a conspiracy in order to permit reliance upon the conspirators’ exception to the hearsay rule.
Held: The appeal should be allowed and a new trial ordered.
In order to convict an accused upon a charge of conspiracy, the jury must be satisfied beyond a reasonable doubt that (1) the conspiracy existed and (2) the accused was a member of it. In deciding the issue of membership, the hearsay exception may be relied upon only after direct evidence against the accused raises the probability of the accused’s membership in the conspiracy. Here, the trial judge directed that proof beyond a reasonable doubt was required when conspiracy was at issue, but did not indicate that a lesser standard of proof could apply regarding the preliminary issue of membership in the conspiracy as it relates to the application of the hearsay exception. The jury, in effect, was left with the direction that the more onerous standard applied before the hearsay exception could be relied upon.
Hobart et al. v. R. (1982), 25 C.R. (3d) 214; R. v. Baron and Wertman (1976), 31 C.C.C. (2d) 525, approved; Carbo v. United States, 314 F. 2d 718 (1963), not followed; R. v. Proudlock,  1 S.C.R. 525, referred to.
APPEAL from a judgment of the Court of Appeal for New Brunswick (1980), 31 N.B.R. (2d) 371, 75 A.P.R. 371, dismissing a Crown appeal from an acquittal on a charge of conspiring to import a narcotic contrary to s. 423(2)(d) of the Criminal Code. Appeal allowed.
S.R. Fainstein, for the appellant.
J.C. Letcher (amicus curiae), for the respondent.
The judgment of the Court was delivered by
MCINTYRE J.—This appeal raises the question of what standard of proof is required on the issue of an accused’s membership in a conspiracy before what is known as the “conspirators’ exception” to the hearsay rule may be brought into play to make admissible against the accused the acts and declarations of his fellow-conspirators performed or made in pursuance of the conspiracy.
The respondent was tried along with one Gauvin before judge and jury on an indictment which provided:
ROBERT JAMES CARTER and FIDELE ARMAND GAUVIN stand charged that between the 1st day of August, A.D., 1978 and the 1st day of November, A.D., 1978, both dates inclusive, at or near Dieppe in the County of Westmorland and Province of New Brunswick they unlawfully did conspire together, the one with the other, and with Robert Hatto and Charles Allum of Roxbury in the state of Massachusetts, U.S.A., and with others unknown, to commit the indictable offence of importation into Canada of a narcotic, to wit: Cannabis (marihuana), contrary to section 5, subsection 1 of the Narcotic Control Act of Canada and amendments thereto, thereby committing an offence contrary to section 423(1)(d) of the Criminal Code of Canada and amendments thereto.
The Crown’s theory was that the marihuana was to be imported into Canada from the United States. The respondent was to provide the neces-
sary funds and vehicles to be used as transport. Gauvin was to make the contacts and arrange the purchase in the United States. Allum (unindicted) was to find sources of drugs in the United States, and Hatto (also unindicted) was to be engaged in bringing the drugs into Canada. Evidence was led by the Crown of: extensive movement of two motor vehicles kept under suveillance by the police; the interception of telephone conversations between the various alleged conspirators; trips to the United States by the conspirators; the obtaining of sums of American currency by Carter; and the detention of one of the motor vehicles in which was found a concealed compartment containing traces of marihuana. In sum, there was evidence upon which a properly instructed jury could have returned a verdict of guilt. The jury, however, acquitted the respondent and the Court of Appeal dismissed the Crown’s appeal. The Crown appealed to this Court by leave. The respondent Carter, although given notice of these proceedings, did not participate in the appeal, but the Attorney General for New Brunswick arranged for the appearance of an amicus curiae, who filed a factum on behalf of the respondent and advanced argument in this Court.
The trial judge, after giving the jury instructions on the general nature of the crime of conspiracy, to which no exception was taken before us, said:
And so, you are going to have to face the problem of saying “Was Robert Carter a party to a conspiracy?” “Was Fidele Gauvin a party to a conspiracy?” And you are going to have to keep separate, evidence which applies to Robert Carter, and evidence which applies to Fidele Gauvin.
I am going to ask you to consider your verdict in stages. First of all, the first question you are going to have to ask yourself, does the evidence convince you that there was a conspiracy to import marihuana. Not that these people were party to it, but was there a conspiracy,
which led up to the facts you have heard and the events you have heard, to import marihuana.
If you decide there was an agreement among somebody to do it, then the next question, “Was Robert Carter a party to that conspiracy? Was he a part of the agreement?” And separately, “Was Fidele Gauvin a party to the agreement?” As I have said you may find both not guilty or one guilty and one innocent, or both guilty. Because if you believe that they did acts [sic] or that they did agree you are going to have to reach that conclusion from a variety of individual acts.
If you decide “Yes” to all those questions. “Yes, there was a conspiracy”, “Yes, Robert Carter was a party to it”, and “Yes Fidele Gauvin was a party to it”. Then and only then, may you consider evidence of acts by Robert Carter and words by Robert Carter as evidence against Fidele Gauvin, or vice versa.
Later he said:
And so we have ruled and do rule that much of what was said by one is not evidence against the other. Much of what is done by one or the other in the absence of the other party is not evidence against the absent party. Unless you find that there was a conspiracy, that each was a party to the conspiracy, and then, any act done by one or anything said by one in furtherance of that conspiracy is evidence against the other. But to reach that stage you must first ask yourself those three questions, otherwise, all the evidence is going to have to be kept in compartments, some applying to Robert Carter, some applying to Fidele Gauvin.
These directions were attacked by the appellant. In the Court of Appeal, it was argued that the effect of the trial judge’s words was to instruct the jury that the Crown was required to prove, beyond a reasonable doubt, membership of the respondent in the conspiracy in order to permit reliance upon the conspirators’ exception to the hearsay rule. This, it was said, was an error in law imposing upon the Crown a heavier burden of proof on that issue than is required. Limerick J.A., speaking for the Court, was of the view that some authorities required proof of an accused’s membership in the conspiracy on a prima facie basis. He considered that prima facie in relation to proof of facts under the
Criminal Code meant “proof beyond a reasonable doubt unless displaced by further evidence or other evidence which raises a reasonable doubt as to the guilt of the accused”. He referred to R. v. Proud-lock,  1 S.C.R. 525, where, after saying that an accused in criminal proceedings must prove any matter in respect of which he bore the burden of proof by a balance of probability, Pigeon J. said [at pp. 548-49]:
Such is not the situation when all the presumption does is to establish a prima facie case. The burden of proof does not shift. The accused does not have to “establish” a defence or an excuse, all he has to do is to raise a reasonable doubt. If there is nothing in the evidence adduced by the Crown from which a reasonable doubt can arise, then the accused will necessarily have the burden of adducing evidence if he is to escape conviction.
Limerick J.A. then noted that the respondent Carter did not testify on his own behalf and, accordingly, failed to rebut any prima facie case made out against him by the Crown. He said, as well [at p. 376]:
If they did consider that evidence against Carter [the evidence of the acts and declarations of other conspirators] there is no merit in this ground of appeal as the suggested correction in the charge would not have altered the verdict of the jury. If on the other hand, the jury did not consider the acts and words of Gauvin and Allum in furtherance of the conspiracy, particularly the telephone conversations between them, as evidence against the respondent, the verdict of not guilty can only mean that the jury did not consider the Crown had established a prima facie case against the respondent.
In this Court only one point was taken and it was expressed in these words in the Crown’s factum.
This case raises the following question: “Where an accused is charged with a conspiracy, what degree of proof must be adduced that he and a particular actor or declarant were both involved in that conspiracy, before the latter’s acts or declarations are admissible against him?”
The Crown argued that where the existence of a conspiracy had been shown proof of the member-
ship of an accused, to permit reliance upon the conspirators’ hearsay exception, required only some evidence of membership directly admissible against him. The proposition was stated in the Crown factum in these words:
It is respectfully submitted that the only precondition that must be satisfied before the trier of fact is entitled to consider the acts and declarations of co-conspirators of the accused, against that accused, is that it can be said of each of them, that some evidence has been adduced against him, independent of the acts and declarations of others which tends to show that he was involved in the conspiracy.
The amicus curiae, while contending that no special form of words was required to charge the jury on this point, recognized that the Crown had a lesser burden than that of proof beyond a reasonable doubt in establishing membership in a conspiracy. He argued, however, that the jury had been adequately directed on this issue, saying in his factum:
The jury in the case at bar were clearly instructed by the trial judge that before they could consider the acts or declarations of Carter and/or Gauvin as evidence against the other, they must find; (a) that there was a conspiracy and (b) that each was a member of that conspiracy by independent evidence against him. And (without using legal terminology) only then would the co-conspirators’ exception to the hearsay rule operate.
There was therefore no error in this respect and the Crown’s appeal should fail. On this background the issue finds its way here.
There are many expositions of the conspirators’ exception to the hearsay rule which attempt to resolve the logical problem inherent in its application. The problem may be simply stated. Where an accused is charged with the crime of conspiracy, proof of his agreement in the illegal design alleged, that is, his participation or membership in the conspiracy, is sufficient for a conviction. The conspirators’ exception to the hearsay rule may be applied to afford evidence of the accused’s membership through acts and declarations of fellow members of the conspiracy performed and made in
pursuance of the objects of the conspiracy. The exception, however, depends on the preliminary fact of membership in the same conspiracy. Membership must therefore be proven before the exception is operative. Since membership is the gist of the offence, however, once that is proven the hearsay exception appears to be unnecessary.
It is only if the preliminary proof of membership is on a standard less than the ordinary standard in criminal cases that this exception can be brought into operation without, at the same time, disposing of the final issue in the matter. Once the membership has been established on a lesser burden, then the hearsay evidence made admissible by the application of the exception may be considered by the trier of fact on the issue of proof of the offence beyond a reasonable doubt. While the rule in general terms is simple to state, the difficulty arises in its practical application. Who should make the preliminary finding of membership, and what standard of proof is appropriate at that stage?
In attempting to deal with this question, judges are confronted, on the one hand, with the well‑settled rule that recognizes the agency principle in connection with conspiracy at criminal law, but must, nonetheless, be deeply sensible of the grave injustice which could result from the application of the conspirators* exception to the hearsay rule to a person not, in fact, shown to be a member of the conspiracy. The approach generally adopted has been to take the matter in two stages, and to require a determination in the case of each accused of the issue of his membership in the conspiracy, on the basis of evidence directly admissible against him before permitting the application of the exception in order to reach a determination of the larger issue of his guilt, or innocence, on the charge in the indictment.
It has been suggested that a clear distinction between the two stages be maintained by appropriating to the trial judge the function of determining this preliminary question of fact: see Carbo v. United States, 314 F. 2d 718 (1963). In this way,
after a voir dire the trial judge rules on the question and either excludes the operation of the exception or directs the jury to apply it. This method has not found favour in Canada and has not been adopted. It was rejected by Martin J.A. in Hobart et al. v. R. (1982), 25 C.R. (3d) 214, where he said, speaking for the Ontario Court of Appeal, at pp. 228-29:
Faced with the inherent difficulty posed by the coincidence of the preliminary fact upon which the admissibility against an accused of acts and declarations of alleged co‑conspirators depends, and the ultimate issue, some American courts have evolved a somewhat different approach, which is exemplified in the decision of the United States Court of Appeals, Ninth Circuit, in Carbo v. U.S. (1963), 314 F. (2d) 718.
Under this approach the judge determines the admissibility of the declarations of alleged co-conspirators in furtherance of the conspiracy. The judge admits the declarations as evidence if he is satisfied that, accepting the independent evidence as credible, a prima facie case (that is, one which would support a finding that the accused was a participant in the conspiracy) has been made out. Thereafter, it is the jury’s function to determine whether the evidence, including the declarations, is credible and convincing beyond a reasonable doubt (p. 737). As I understand the rule, once the judge decides that a prima facie case has been made out by independent evidence (evidence other than the declarations of alleged co-conspirators), the independent evidence and the hearsay declarations of alleged co-conspirators are submitted to the jury on an equal footing, without any direction that the jury must find from the independent evidence that the accused was a party to the conspiracy before using the declarations of alleged co‑conspirators against him.
The approach in Carbo v. U.S., supra, has the apparent advantage of greatly simplifying the judge’s charge. That advantage may, however, be more apparent than real and may only serve to conceal the underlying and intractable problem.
Moreover, the perceived simplicity of the Carbo approach is, in my view, counterbalanced by the fact that the jury is deprived of the assistance of the judge in sorting out the evidence directly admissible against an accused and consequently, are left free to connect the accused with the conspiracy by hearsay evidence.
Although the rule adopted in Carbo does not prevent the judge from separating the evidence directly admissible against the accused from the acts and declarations
of alleged co-conspirators, such an exercise is meaningless where the evidence directly admissible against an accused and the hearsay acts and declarations of alleged co‑conspirators go to the jury on the same basis; such a separation is contrary to the entire approach in that case.
It is true, of course, that under the rule propounded in Carbo v. U.S., supra, the accused has the protection that the judge has already determined that there is sufficient independent evidence to support a finding by the jury that the accused was a party to the conspiracy. The jury may, nonetheless, find the independent evidence sparse and quite unconvincing, and use a hearsay declaration of apparently devastating force to connect the accused with the conspiracy.
I am in agreement with Martin J.A. in his rejection of the voir dire approach. I also agree with the concluding comment, quoted from his judgment in Hobart above, to the effect that the jury, despite the fact that the purpose of the Carbo approach is to separate the two issues, might well confuse the two and use the hearsay declarations to connect the accused with the conspiracy. The same danger, of course, applies where the jury must make this preliminary finding of membership in the conspiracy. They may equate proof of membership for the limited purpose of the application of the hearsay exception with proof of guilt of the accused upon the indictment. For this reason, it is my opinion that extreme care must be taken to keep the two issues separate and this involves the preservation of a two-stage approach in the charge to the jury.
The trial judge must bear in mind that in order to convict an accused upon a charge of conspiracy the jury, or other trier of fact, must be satisfied beyond a reasonable doubt that the conspiracy alleged in the indictment existed, and that the accused was a member of it. In deciding the issue of membership for the purpose of determining guilt or innocence on the charge contained in the indictment, the hearsay exception may be brought into effect, but only where there is some evidence of the accused’s membership in the conspiracy directly admissible against him without reliance upon the hearsay exception raising the probability
of his membership. It is not necessary that the directly admissible evidence be adduced first before any evidence of the acts and declarations of other conspirators may be received. The exigencies of the trial would make a chronological separation of the evidence impossible. At the end of the day, however, before the hearsay exception may apply, such evidence on the threshold issue of membership of the accused in the conspiracy must be present. In charging the jury on this question, the trial judge should instruct them to consider whether on all the evidence they are satisfied beyond a reasonable doubt that the conspiracy charged in the indictment existed. If they are not satisfied, then the accused charged with participation in the conspiracy must be acquitted. If, however, they conclude that a conspiracy as alleged did exist, they must then review the evidence and decide whether, on the basis of the evidence directly receivable against the accused, a probability is raised that he was a member of the conspiracy. If this conclusion is reached, they then become entitled to apply hearsay exception and consider evidence of the acts and declarations performed and made by the co‑conspirators in furtherance of the objects of the conspiracy as evidence against the accused on the issue of his guilt. This evidence, taken with the other evidence, may be sufficient to satisfy the jury beyond a reasonable doubt that the accused was a member of the conspiracy and that he is accordingly guilty. They should be told, however, that this ultimate determination is for them alone and that the mere fact that they have found sufficient evidence directly admissible against the accused to enable them to consider his participation in the conspiracy probable, and to apply the hearsay exception, does not make a conviction automatic. They should be clearly told that it is only after they have become satisfied beyond a reasonable doubt on the whole of the evidence on both issues, that is, the existence of the conspiracy and the accused’s membership in it, that they may convict, and that it is open to them, if they think it right or if they are not satisfied, to acquit the accused, even after reaching their initial determination of probable membership in the conspiracy which enabled the application of the hearsay exception. The trial judge should point out to the jury, as well, the evidence directly admissible
against the accused on the threshold issue of his membership in the conspiracy to assist them in that determination. In my view, this approach is generally consistent with the approach adopted by Martin J.A. in R. v. Baron and Wertman (1976), 31 C.C.C. (2d) 525, and Hobart v. R., supra, in which case the general principles involved in the treatment of this question are set out and discussed and the authorities are collected.
Turning to the case at bar, it is my opinion that the trial judge in his charge left with the jury the idea that they would have to be satisfied, according to the ordinary criminal standard of proof beyond a reasonable doubt, on the preliminary issue of membership of the accused in the conspiracy. In this, he imposed upon the Crown a higher burden of proof on the issue than that required by law. He charged the jury early in his charge on the general requirement of proof beyond a reasonable doubt and in the extract from his charge, reproduced above, he used the expression “does the evidence convince you that there was a conspiracy”. This referred, of course, to the existence of the conspiracy but, in going on to deal with the question of Carter’s membership in the conspiracy, he gave no indication that any lesser standard of proof could apply and, in my view, the effect of this omission, taken with the earlier instruction on the general requirement for proof beyond a reasonable doubt, was that the jury were left with the direction to apply the reasonable doubt standard on this preliminary issue of membership. In my opinion, the jury was thus misinstructed and the Crown put to a standard of proof greater than that required by law on the threshold issue of membership in the conspiracy. I would, accordingly, allow the appeal and direct a new trial.
Appeal allowed and a new trial ordered.
Solicitor for the appellant: R. Tassé, Ottawa.
Solicitor for the respondent: James C. Letcher (amicus curiae), Moncton.
 See  2 S.C.R. 937.