(Last revised June 2012)
[1] You have heard evidence of statements made out of court by: (NOA1), (NOA2), other alleged co-conspirators, other alleged unindicted co-conspirators, or alleged participants in the common design. There are two general rules that apply to out-of-court statements.
[2] The two general rules are:
[3] I will now explain an exception that may apply to some of the out-of-court statements in this case.
In the case of a conspiracy charge, use paragraphs [4] – [8].
In the case of an alleged common design, use paragraphs [9] – [13].
[4] If you find beyond a reasonable doubt that there was a conspiracy to (specify unlawful object), you may decide to use out-of-court statements made in furtherance of it by anyone who was probably a member, in relation to any person charged who was also probably a member.
[5] You must approach your decision in three steps.
[6] First, you must decide whether the Crown has proved beyond a reasonable doubt that there was a conspiracy between (the dates specified in the indictment) to (specify unlawful object). Consider this question in light of all the evidence you have heard.[1] At this step, the question is whether there was a conspiracy, not who the members were.
(Review evidence related to the existence of a conspiracy.)
[7] Second, if you find beyond a reasonable doubt that there was a conspiracy to (specify unlawful object), you must decide whether (identify the author of the acts or statements and the person against whom they were tendered) were probably members. Consider each person individually. On this question, you must determine whether it is more likely than not that he or she was a member of the conspiracy. Unless I tell you otherwise[2] , in deciding whether a person was probably a member of the conspiracy, consider only his or her own acts and statements in the context in which they occurred. At this step, evidence of acts or statements of an alleged member of the conspiracy may be considered only in relation to that person’s participation, and not that of anyone else.
It is for you to decide whether the acts or statements were done or made and what they meant.
(Review evidence directly admissible in relation to each person concerning his or her membership in the conspiracy.)
[8] Third, if you find beyond a reasonable doubt that there was a conspiracy to (specify unlawful object), and you have decided which persons were probably members of it, you may then consider out-of-court statements by any probable member in relation to any other probable member, but only those statements that you find were made in furtherance of the conspiracy. That means that the statements must have been made to advance or accomplish (specify unlawful object) while the conspiracy was ongoing and the maker of the statement was a member of it.
It is for you to decide whether the statements were made and what they meant.
Insert if appropriate:
You may not use the statements you have heard that (NOA1) or (NOA2) or any alleged co-conspirator made to the police after his/her membership in the conspiracy had come to an end as evidence in relation to the guilt of anyone other than the person who made that statement.
Give similar limiting instructions in relation to other statements clearly not made in furtherance of the conspiracy, keeping in mind that whether the statement was “in furtherance” is a question of fact for the jury to determine.
Insert if a conspiracy count is being tried with a substantive offence that does not involve a common design:
The special rules I have just told you about apply only to the charge of conspiracy.The general rules I mentioned earlier apply to the charge of (specify).
[9] If you find beyond a reasonable doubt[3] that there was a common design to (specify unlawful object), you may decide to use out-of-court statements made in furtherance of it by anyone who was probably a participant, in relation to any person charged who was also probably a participant.
[10] You must approach your decision in three steps.
[11] First, you must decide whether the Crown has proved beyond a reasonable doubt that there was a common design to (specify unlawful object). Consider this question in light of all the evidence you have heard.[4] At this step, the question is whether there was a common design, not who the participants were.
[12] Second, if you find beyond a reasonable doubt that there was a common design to (specify unlawful object), you must decide whether (identify the author of the acts or statements and the person against whom they were tendered) were probably participants. Consider each person individually. On this question, you must determine whether it is more likely than not that he or she was a participant in the common design. Unless I tell you otherwise,[5] in deciding whether a person was probably a participant, consider only his or her own acts and statements in the context in which they occurred. At this step, evidence of acts or statements of an alleged participant in the common design may be considered only in relation to that person’s participation, and not that of anyone else.
It is for you to decide whether the acts or statements were done or made and what they meant.
(Review evidence directly admissible in relation to each person concerning his or her participation in the common design.)
[13] Third, if you find beyond a reasonable doubt that there was a common design to (specify unlawful object) and you have decided which persons were probably participants in it, you may then consider out-of-court statements by any probable participant in relation to any other probable participant, but only those statements that you find were made in furtherance of the common design. That means that the statements must have been made to advance or accomplish (specify unlawful object) while the common design was ongoing and the maker of the statement was a participant in it.
You may not use the statements you have heard that (NOA1) or (NOA2) or any alleged participant made to the police after his/her participation in the common design had come to an end as evidence in relation to the guilt of anyone other than the person who made that statement.
Give similar limiting instructions in relation to other statements clearly not in furtherance of the common design, keeping in mind that whether the statement was “in furtherance” is a question of fact for the jury to determine.
Insert if a common design count is being tried with a separate substantive offence that does not involve a common design:
The special rules I have just told you about apply only to the charge of (specify offence involving a common design). The general rules I mentioned earlier apply to the charge of (specify).
[1] There are two schools of thought as to what evidence may be considered at step one. One view is that the jury may consider evidence that is admissible under the usual rules and, in addition, evidence of statements made by alleged members of the conspiracy in furtherance of it which are provisionally admissible under the co-conspirators’ exception to the hearsay rule. The other view is that only evidence which is admissible under the usual rules of evidence may be considered at step one. The various decisions are reviewed in R. v. Smith (2007), 216 C.C.C. (3d) 490 (N.S.C.A), at paras. 225-239.
[2] In some cases, other evidence may be directly admissible to establish that a person was a probable member of a conspiracy, such as non-hearsay evidence, or evidence admissible under other hearsay exceptions or the principled approach to hearsay. In this situation, this evidence should be included in the review of the evidence directly admissible against each member of the conspiracy.
[3] This instruction is based on the assumption that the standard of proof at step one in a case of common design is beyond a reasonable doubt, the same as for conspiracy in R. v. Carter, [1982] 1 S.C.R. 938, 67 C.C.C. (2d) 568: See R. v. Koufis, [1941] S.C.R. 481, 76 C.C.C. 161 and R. v. Sutton, [2000] 2 S.C.R. 595, 148 C.C.C. (3d) 613 at para. 8. However, the Courts of Appeal of New Brunswick, British Columbia and Quebec have held that the standard of proof at step one in a common design case is the balance of probabilities and, therefore, paragraphs [9] and [11] of this instruction should be modified in those provinces: R. v. Sutton (1999), 140 C.C.C. (3d) 336 (N.B.C.A.); R. v. Lambert, 2007 BCCA 26 and R. c. Sebbag, [2004] JQ No. 7397 (Qué. C.A.). There is no authority from the Supreme Court of Canada supporting this difference between conspiracy and common design cases with respect to the hearsay exception; nor is there any authority specifically dealing with the standard of proof where both conspiracy and a substantive offence are charged.
[4] There are two schools of thought as to what evidence may be considered at step one in conspiracy cases. Presumably, the same question is relevant to the common design hearsay exception (see footnote from Section 10.4 Expert Opinion Evidence (Conflict in Opinions of Experts of Opposing Parties in Relation to an Essential Element that the Crown Must Prove).
[5] In some cases, other evidence may be directly admissible to establish that a person was a probable participant in a common design such as non-hearsay evidence, or evidence admissible under other hearsay exceptions or the principled approach to hearsay. In this situation, this evidence should be included in the review of the evidence directly admissible against each participant in the common design.