The Co-Conspirators’ Exception to the Hearsay Rule

The co-conspirators’ exception to the hearsay rule is, from a defence lawyer’s perspective, the legal version of an improvised explosive device. It is a roadside bomb: extremely diverse, difficult to defend against and intended to heap significant volumes of otherwise inadmissible evidence upon the accused awaiting his explanation. It places the accused on the defensive. Evidence is presented that is not challenged or scrutinized by cross-examination, the most effective means of testing credibility and reliability. It may be false or contrived or delivered for reasons best known to the declarant or actor, but in their absence. Nevertheless, it begs a response. And, in that response, the accused is placed in the unenviable position of answering the question, “When did you stop beating your wife?” Sometimes no answer will suffice.

The co-conspirators’ exception to the hearsay rule is, from the trial prosecutor’s perspective, a highly effective bomb, the ingredients of which are as inexpensive as a paid informant, or a person as guilty of the alleged crime as the prosecutor contends the accused to be (similar to ammonium nitrate fertilizer and Semtex). There is no downside to this evidence for the prosecution because it detonates equally upon the guilty and the innocent, it avoids troublesome challenges such as cross-examination, and, may be detonated remotely as in not requiring the actual attendance of the actor or declarant. And, best of all, the prosecutor gets the advantage of the full force of the “evidence” before the trier of fact decides whether the accused is even a soldier.

Rationale & Process

The Rule is based upon principles of agency. Each member of a common unlawful scheme implicitly permits every other member of the unlawful scheme the right to act or speak on her behalf in pursuit of the common unlawful plan.

The Supreme Court of Canada in Carter1 provided the basis of admissibility of the co-conspirators’ exception, and, McIntyre J., five years later, succinctly summarized the procedure for its admissibility under Carter as a three-step process:
1. The trier of fact must first be satisfied, beyond a reasonable doubt, that the alleged conspiracy in fact existed;
2. If the alleged conspiracy is found to exist, then the trier of fact must review all the evidence that is directly admissible against the accused and decide, on a balance of probabilities, whether or not he is a member of the conspiracy;
3. If the trier of fact concludes, on a balance of probabilities, that the accused is a member of the conspiracy, then the trier of fact must go on and decide whether the Crown has established such membership beyond a reasonable doubt. In this last step only, the trier of fact can apply the hearsay exception and consider evidence of acts and declarations of co-conspirators, done in furtherance of the object of the conspiracy, as evidence against the accused on the issue of his guilt.

The Supreme Court of Canada in 2005 again referred with approval to this 3-step process, provided the acts or declarations occur while the conspiracy is ongoing and are in furtherance of the common object.3 Obviously, where the trier of fact is a jury, all 3 steps are the responsibility of the jury, not the Judge. What role, if any, the trial Judge should play in screening the evidence that should go before the jury to fulfill its responsibilities in this 3-step process has been the subject of some debate.

In Mapara4 the Supreme Court of Canada accepted that even double hearsay is admissible under the co-conspirators’ exception because it meets the necessity and reliability requirements. Necessity the court said is satisfied based upon the combined effect of the non-compellability of co-accuseds and the undesirability of separate trials for co-conspirators. Reliability is satisfied by the Carter approach.
The court concluded that this approach is fair to accused persons while permitting effective prosecutions of conspiracies.5 Only in “rare cases”, where the accused is able to establish that application of the rule does not satisfy the indicia of necessity and reliability, will such hearsay evidence be excluded.6 The exclusion of this evidence in rare cases will likely be accomplished via a voir dire.

Ducharme J. in Magno offered this opinion:

The appellate courts’ concern about the impact of voir dires in this area is well-founded. Unfortunately, their prediction of their rarity appears to have been overly optimistic. I say this because there are at least three situations where a pre-trial determination will have to be made with respect to evidence alleged to fall within the co-conspirator’s exception:

1. Where the defence can credibly raise the issue of whether the proposed evidence actually falls within the co-conspirators’ exception;
2. Where the defence can question the necessity of admitting the hearsay evidence. This is most likely to arise when the hearsay declarant is available to testify. The situation was expressly not addressed in Chang and Mapara; and,
3. Where the defence “is able to point to evidence raising serious and real concerns about reliability” as described in Chang.

Ducharme J. explains that once the prosecution demonstrates the acts or declarations fall within the exception to the hearsay rule, the burden shifts to the defence to demonstrate its admission would be inconsistent with the principled approach. Where arguments by the defence fall within one of the 3 circumstances referred to above, “it is clear from Chang the trial Judge must determine the issue and this will presumably necessitate a voir dire of some description”.8 Ducharme J. also explains his use of the phrase, “a voir dire of some description” in a footnote that suggests, “such voir dires need not require viva voce evidence and may most efficiently be conducted by requiring the parties to submit a written record and written submissions as was done in the present case.”9
The Court of Appeal for Ontario in Simpson10 says that one of the “rare cases” when a voir dire may be necessary to determine the admissibility of hearsay declarations and acts is where the actual declarant or actor is available as a witness. LaForme J.A. writing for the court presented this opinion:

There is no doubt in my mind that the availability of the declarant, in some circumstances, can support the “rare exception” in which the Carter test might yield to that required by Starr. In other words, the availability of the co-conspirator declarant as a witness, may require that the declaration be adduced through the testimony of the declarant.

2022 Criminal Trial Strategies - Patrick J Ducharme

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