The Carter test and a two person conspiracy

R. v. Bogiatzis, 2010 ONCA 902 deals with the application of R. v. Carter, [1982] 1 S.C.R. 938 to an alleged two person conspiracy. Carter, which predates the principled approach to hearsay exceptions still governs. The Court in Carter held, at p. 947:

In charging the jury on this question, the trial judge should instruct them [1] 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. [2] 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. [3] If this conclusion is reached, they then become entitled to apply the 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.

The Court of Appeal appled Carter as follows:

[24] The difficulty posed by the first stage of the Carter analysis in a two-person conspiracy is the risk that the jury will have found the accused guilty at the first stage by using all of the evidence, including hearsay statements from the co-conspirator, that may not be properly admissible against the accused. The problem arises because the essence of a conspiracy is an agreement. If the jury has found an agreement and there are only two people involved, it follows that both must be guilty; otherwise there could be no agreement. I admit that the application of the Carter formula in a two-person conspiracy is challenging, but the Supreme Court of Canada, albeit in obiter, has held in R. v. Barrow, [1987] 2 S.C.R. 694 at 742-43, that it is applicable.

[25] The application of Carter in a two-person conspiracy starts with the principle that it is possible to have a two-person conspiracy in which only one person is convicted. For example, the jury might well find on the basis of all the evidence that there was an agreement and might well find on the basis of the evidence admissible against one person that that person was a party to the conspiracy. There might not, however, be sufficient admissible evidence of the other person's probable membership in the two person agreement: see Guimond v. The Queen, [1979] 1 S.C.R. 960 at 977 and R. v. Barrow, at pp. 742-43. An example, similar to the one used by McIntyre J. in Barrow, shows how the Carter formula would apply. Assume a conspiracy allegedly involving only an agreement between A and B in which A gives a statement to the police in which he says that he and B conspired to traffic in cocaine. Using all the evidence at stage one, including the statement, the jury could conclude beyond a reasonable doubt that a conspiracy involving A and B to traffic in cocaine existed. However, the statement has a limited use. It could be used to establish the existence of the conspiracy at stage one, and can also be used to show A's probable membership in the conspiracy at stage two. However, as against B, the statement cannot be used to show that B was a probable member of the conspiracy at stage two.

[26] The difficulty therefore lies not in the theory of the application of the exception to a two-person conspiracy, but in the need for careful instructions on what evidence the jury may use at the various stages of the Carter analysis, and how the evidence may be used. To return to the Barrow example, the jury would have to be told that they could use A's statement for the limited purposes of deciding whether a conspiracy existed, and to determine A's probable membership in the conspiracy. However, the jury must be instructed that it could not use A's statement for the improper purpose of deciding whether B was a probable member of the conspiracy. I admit that this places the jury in a very difficult position as they attempt to juggle the use of various pieces of evidence. And, the problem for the trial judge in attempting to charge the jury is acute where the evidence is not as clear cut as in the Barrow example. However, until the Supreme Court of Canada holds otherwise, I do not see that it is open to this court to abandon the Carter test in a two-person conspiracy.

[27] In R. v. Viandante (1995), 40 C.R. (4th) 353 (Man. C.A.), Huband J.A. speaking for the court, grappled with the difficulty of applying Carter in a two-person conspiracy case. In that case, the court was of the view that the trial judge had failed to make it clear at stage one of Carter that proof of the existence of a two-person conspiracy involving one of the alleged conspirators did not mean that the other accused's guilt in the same two-person conspiracy was established. In other words, in using "all the evidence" at stage one, would the jury understand that finding the conspiracy existed did not necessarily determine either of the two accused's membership in that conspiracy?

[28] In my view, the trial judge in this case made an admirable attempt to deal with this difficult issue. He obviously recognized that the most serious risk of prejudice was that the jury would use the post-June 7 conversations to decide whether the narrow conspiracy existed and by necessary inference use those conversations to decide that the appellant was a member of the conspiracy. Accordingly, in his directions at stage one as to whether a conspiracy existed, the trial judge referred the jury to only the pre-June 7 conversations. However, the trial judge also told the jury that they "should consider all the circumstances including, but not only, what each person alleged to be a member of that conspiracy did or did not say, did or did not do, as well as how he did or did not do it" and to take into account "what the alleged participants said and did in the circumstances in which the words were spoken and the conduct took place". In my view, there was a danger that the jury would have used all of the evidence, including statements made by Christodoulou when the appellant was not present, possibly even the post-June 7 conversations, to find that the conspiracy between the appellant and Christodoulou existed and necessarily that the appellant was a member of the conspiracy.

[29] As difficult a concept as it may be, the trial judge was required to instruct the jury that while they were entitled to use all the evidence to decide whether the conspiracy existed, that determination did not decide the issue of the appellant's membership because of the evidentiary rules surrounding the use of hearsay. While hearsay in the form of Christodoulou's statements, even those made in the absence of the appellant, was available to prove the existence of the conspiracy, it was not available to prove the appellant's membership in the conspiracy until certain further steps were taken: see Viandante at paras. 50 - 51. I recognize that this puts a heavy burden on the trial judge to instruct the jury on what would seem to them to be esoteric and abstract principles. I will provide some suggestions at the conclusion of this part of the reasons as to how these concepts might sensibly be conveyed to the jury. As I will explain, in my view, the key to make the directions understandable and workable in a two-person conspiracy is to sever the directions on the exception from the directions on the elements of conspiracy.