Conspiracy to Commit Murder (s. 465) Charges in Canada: Offences, Defences, Punishments

What is conspiracy to commit murder?

Section 465(1) of the Criminal Code of Canada deals with the offence of conspiracy, which occurs when two or more individuals plan to commit an illegal act together. The section outlines different scenarios where an individual can be charged with conspiracy, and specifically, as outlined in this section, to conspiracy to commit murder.

Examples of conspiracy to commit murder:

Some examples of the offence of conspiracy to commit murder may include:

• three (3) people formulate a plan to murder someone, and although intend on killing the person, take steps to plan and try to make the circumstances appear to be an accident
• four (4) people conspire to kill someone, and carefully plan the crime, with each person participating

Defences:

If you have been charged with conspiracy to commit murder, it is highly advisable that you consult a lawyer immediately. There are defences available to you, which depend on the specific facts of your case.

The following list includes defences that may be available:

• Factual Innocence: If the Crown is unable to prove the elements beyond a reasonable doubt, they will have failed to discharge their burden.
• Duress: The defence of duress may be invoked when someone commits an offence under compulsion by threats of death or bodily harm.
• Necessity: The defence of necessity may be invoked in emergency-type situations.
• Violation of Charter Rights: Under the Canadian Charter of Rights and Freedoms, individuals are afforded specific rights.

A successful Charter challenge may also result in a stay of proceedings or evidence from your case being excluded.

Punishment:

The maximum penalty for a conviction under Section 465 is life imprisonment. Specifically, Section 449 provides that everyone who commits the offence of making counterfeit money is guilty of an indictable (straight indictable) offence and is liable to imprisonment for a term of not more than fourteen (14) years

Whether you intend to plead guilty to a charge under section 465, it is important to consult a lawyer prior. There may be factors which apply to your punishment/sentencing which are relevant and important for consideration, which may result in a lesser punishment.

Overview of the Offence 

According to s. 465(1) of the Criminal Code:

The Offences of s. 465(1)(a), conspiracy to commit murder is presumptively tried by judge and jury.

A conspiracy charge is a very serious matter. The sentence for conspiracy will depend upon the seriousness of the underlying offence which is the object of the conspiracy. In the circumstances of conspiracy to commit murder, the sentence is a maximum term of imprisonment for life.

A conspiracy is an agreement of two or more people to commit an unlawful act. The offence of Conspiracy criminalizes the agreement to commit a crime even if no actions are taken to further the conspiracy.

The essential elements of a charge of conspiracy to commit murder are as follows:

1. There must be an act of agreement between 2 or more persons;
2. There must be an actual intention to agree and intention to commit the offence of murder, in other words, more than simply a common intention on the part of the co-conspirators is required;
3. There must be a criminal purpose that is common between the co-conspirators to the conspiracy, in other words, the criminal object or crime of murder to be committed;
4. There must be an intention to effect or commit the offence of murder.

Section 465(1)(a) of the Criminal Code of Canada, conspiracy to commit murder, is a straight indictable offence, and the offender is liable for a maximum term of life imprisonment

In order for a person to be convicted of conspiracy to commit murder in criminal court, the crown is required to prove their case beyond a reasonable doubt. The crown must also prove several elements of the offence, such as the above-described elements of the offence to constitute a criminal conspiracy, confirming the accused’s identity, the date(s) and time(s) on which the incident(s) occurred, the jurisdiction, that the accused had knowledge that their actions were intended to conspire to commit the offence of murder.

The presumption of innocence applies in that the accused is presumed innocent until convicted of the offence.

The Guilty Act (Actus Reus)

The actus reus for the offence of conspiracy to commit murder is established by proof, beyond a reasonable doubt, of the following:

• the accused conspired with and/or formed an agreement with one or more other persons to commit the offence of murder

The Guilty Mind (Mens Rea)

The mens rea for conspiracy to commit murder is established by proof, beyond a reasonable doubt, of the following:

• the accused, knowing that their actions and what they were conspiring to, would result in the murder of another person, engaged in that agreement

Defences

How to beat a charge of conspiracy to commit murder:

Each circumstance is different, and the best defence available is contextual based on the details. As described above, if the circumstances present the opportunity to use a defence of factual innocence, duress, necessity, or a violation of charter rights, this is something that should be discussed with your lawyer.

Conspiracy to commit murder is a very serious criminal offence. However, the following are some common defences that may be used against a charge of conspiracy to commit murder.

In matters of conspiracy, it is very important to ensure that the evidence was obtained lawfully. Conspiracy charges may often involve the police intercepting private communications, which are provided protective rights by the Charter.

It is advisable to consult a lawyer in such circumstances, however, there may be circumstances where evidence was obtained from the accused person without their consent, and where they held a reasonable expectation of privacy. If this is the case, it is important to seek consultation from a lawyer to ensure that the accused’s rights under section 8 of the Canadian Charter of Rights and Freedoms were not violated. If they were, there have been circumstances where the courts have deemed the evidence seized in this manner inadmissible.

For example, if following an incident, an accused person sent private text messages to a close friend discussing the matter, and the police seized and searched the accused’s cellular phone without a warrant, this evidence may not be admissible. Evidence, and how it was seized, although always important to examine diligently, is especially so in circumstances which lead to a charge of Incest. It is important to determine the accused’s expectation of privacy in this context, and whether the police obtained warrants to search the devices, or were required to.

Punishments

The maximum penalty for a conviction under Section 465 of the Criminal Code is a term of life imprisonment.

Conspiracy to commit murder is an indictable offence.

Whether you intend to plead guilty to a charge under section 465, it is important to consult a lawyer prior. There may be factors which apply to your punishment/sentencing which are relevant and important for consideration, which may result in a lesser punishment. This depends on the unique circumstances of each matter and is determined on a case-by-case basis. Therefore, it is important to consult a lawyer.

Frequently Asked Questions

How long could I go to jail for if convicted of conspiracy to commit murder?

If convicted of conspiracy to commit murder, you could go to jail for a term of life imprisonment.

Could I be charged with conspiracy to commit murder, even if a person isn’t killed?

Yes, as long as the elements of the conspiracy and agreement are met, the elements of the offence/intention have been met.

What is the difference between conspiracy to commit murder, and murder charges?

Conspiracy to commit murder requires the elements for conspiracy to be met, that is, as described above, an agreement between two or more people with the objective intent to commit the offence.

Published Decisions

R. v. Correia, 2016 BCCA 330 (CanLII)

The accused’s were convicted of conspiracy and counselling to murder a rival drug dealer. The plan was never carried out, although after the conspiracy ended, a double homicide occurred at the former residence of the intended victim. At trial, out-of-court statements from individuals alleged to have been involved in the conspiracy were provisionally admitted into evidence. The conviction was held on appeal.

Read the full decision here.

R. v Smith 2009 SCC 05

The accused were charged with first-degree murder and conspiracy to commit murder.  The Crown’s case depended on the evidence of two alleged accomplices who had been involved in the killing of the victim and attempts to cover it up.  The accomplices were granted immunity and witness protection in exchange for assistance in the police investigation and their testimony. The accused were convicted of both offences.

Read the full decision here.

R. v Nguyen, 2020 ABCA 345

The accused and two others were all charged with conspiracy to commit murder, alleging they had conspired together to murder a member of a rival gang in the city of Calgary.

The trial judge found the existence of the conspiracy had been proven beyond a reasonable doubt and convicted the accused, however the other two co-accused were not convicted, because it was not established beyond a reasonable doubt that they were members of the conspiracy.

The accuser’s conviction was held on appeal.

Read the full decision here.