The actus reus of a conspiracy under s. 465 of the Criminal Code of Canada is an agreement to commit a criminal offence. It is not necessary that any acts be done in furtherance of the agreement, although such acts may be evidence of an agreement. Overt acts aimed at the commission of a substantive offence, without more, may merely be evidence of aiding and abetting (if the offence is actually committed and charged.)
The mens rea for conspiracy requires an intention to put the common design into effect. The intention cannot be anything else but the will to attain the object of the agreement. An actual agreement requires genuine intention.
Criminal liability does not attach to fruitless discussions of a substantive crime that is never committed, nor even attempted, by any of the parties to the discussion. Canadian Criminal law does not punish bad thoughts that were abandoned before an agreement was reached, or an attempt made, to act upon them.
In a conspiracy, it is not necessary that all members of a conspiracy play or intend to play, equal roles in the ultimate commission of the unlawful object. Any degree of assistance in the furtherance of the unlawful object can lead to a finding of membership as long as an agreement to a common plan can be inferred and the requisite mental state has been established.
William Poulos, Barrister