R. v. Douglas, 1991 CanLII 81 (SCC), [1991] 1 SCR 301

R. v. Douglas, 1991 CanLII 81 (SCC), [1991] 1 SCR 301

Darryl Anthony Douglas and Robert James Douris Appellants

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Douglas

File No.: 21662.

1990: October 12; 1991: February 28.

Present: Wilson, Sopinka, Cory, McLachlin and Stevenson JJ.

on appeal from the court of appeal for ontario

Criminal law ‑‑ Indictment ‑‑ Adequacy ‑‑ Conspiracy ‑‑ Accused charged with conspiracy to import cocaine ‑‑ Evidence led of three separate conspiracies ‑‑ Two falling within same time period set out in indictment ‑‑ Locations of conspiracy involving accused properly identified ‑‑ No evidence led to prove accused involved in other conspiracies ‑‑ Whether indictment adequate ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 510, 512, 516.

The appellants were charged with conspiracy to traffic in cocaine. The indictment stated that the appellants had conspired with each other and with two named individuals and an unnamed person and that the conspiracy occurred between December 5, 1983 and February 19, 1984, in Montreal, Sarnia and Kitchener. One of the named individuals had agreed to supply an American undercover police officer at a place in Michigan with cocaine obtained from a supplier in Florida. When this transaction (Phase I) fell through in January 1984, this individual informed the undercover officer that the two appellants could arrange the delivery of the cocaine and set up a meeting in Sarnia for the four of them where a new deal (Phase II) was struck for the delivery of cocaine to Michigan. The undercover officer accepted appellants' offer the next day but this deal died around February 4, 1984. The named individual, who had set up the meeting, had a partner in Kitchener (the other named individual) who had been very much involved in the organization of the deal. The key locations for the Phase II conspiracy were Kitchener and Sarnia. Several months later arrangements were made between the undercover officer and these two individuals (Phase III); appellants were not involved in this third deal.

At issue on this appeal is the adequacy of the indictment. It indicated the time of the conspiracy, which overlapped with the period of Phase I, and Kitchener and Sarnia where the discussions occurred and where the key agreement was struck. The first trial judge dismissed the case on the ground that no conspiracy had been committed in Canada. The Court of Appeal allowed an appeal from that decision and ordered a new trial. The second trial judge convicted the appellants of the main conspiracy and held that the case would stand even if there were separate conspiracies. A majority of the Court of Appeal held the conspiracy charged was the one proven at trial even though evidence had been adduced of a second conspiracy and accordingly dismissed the appeal. It was argued before this Court that both the indictment and the testimony given at trial referred to at least two separate and distinct conspiracies and that the appellants, although parties to one conspiracy, were never parties to the conspiracy actually charged and should, therefore, be acquitted.

Held: The appeal should be dismissed.

An indictment is adequate if it contains sufficient details to give the accused reasonable information with respect to the charge and to enable the accused to identify the transaction so as to permit the adequate preparation of the defence. Whether an indictment is sufficient will depend on the offence charged and the facts of the case. Time is not required to be stated with exact precision unless it is an essential part of the offence charged and the accused is not misled or prejudiced by any variation in time that arises. A charge generally is established if the evidence discloses the commission of the offence within the time period set out in the indictment.

The essence of the offence of conspiracy is the agreement to perform an illegal act. The overt acts taken to carry out that agreement are simply elements going to prove the agreement which is the essential ingredient of the offence.

A conspiracy (Phase II) was proven here: appellants agreed to sell cocaine to the undercover police officer. The evidence also established the Phase I conspiracy. It was not important whether the Phase III transaction is a separate event or merely a continuation of the Phase I conspiracy.

The Crown proved the offence as charged. Although the Phase II conspiracy may actually have started some time after the first date in the indictment, no prejudice was occasioned by reference to the earlier date. More importantly, the indictment specified the cities which pertained exclusively to the Phase II conspiracy and so clearly indicated that the Phase II conspiracy was the sole subject of the indictment. Reasonable notice of the offence charged was therefore given. Significantly, only the appellants were charged in the indictment. The words "and elsewhere in the Province of Ontario" were superfluous and are common to almost all indictments of conspiracy that take place in the Province of Ontario.

Since the sole issue was whether the prosecution proved the conspiracy alleged, the fact that the evidence established more than one conspiracy was not necessarily fatal to the prosecution. Whether any or all of the conspiracies proven were covered by the indictment depends on the construction of the charge. The proof of the Phase I conspiracy and the Phase III conspiracy were not essential to the proof of the conspiracy involving appellants. They were, however, important in the narrative of events.

If the conspiracy proven includes fewer members than the number of accused or extends over only part of the period alleged, then the conspiracy proven can still be said to be the same conspiracy as that charged in the indictment. In order to find that a specific conspiracy lies within the scope of the indictment, it is sufficient if the evidence adduced demonstrates that the conspiracy proven included some of the accused, establishes that it occurred at some time within the time frame alleged in the indictment, and had as its object the type of crime alleged.

The opening address is to be taken into account in construing the indictment. Where the Crown stated the essence of the conspiracy relied on at the first trial and omitted at the second trial to make any such statement, whether consistent or inconsistent with that given at the first trial, the Crown is bound by the position it had taken in its opening at the first trial.

Cases Cited

Referred to: R. v. Côté, [1978] 1 S.C.R. 8; R. v. Wis Development Corp., [1984] 1 S.C.R. 485; R. v. Ryan (1985), 23 C.C.C. (3d) 1; Re Regina and R.I.C. (1986), 32 C.C.C. (3d) 399; Container Materials Ltd. v. The King, [1942] S.C.R. 147; R. v. Hoffmann‑La Roche Ltd. (1980), 53 C.C.C. (2d) 1, aff'd 1981, 62 C.C.C. (2d) 118 (Ont. C.A.); R. v. B. (G.), [1990] 2 S.C.R. 30; R. v. Cotroni, [1979] 2 S.C.R. 256; R. v. Paterson, Ackworth and Kovach (1985), 18 C.C.C. (3d) 137 (Ont. C.A.), aff'd sub nom. R. v. Ackworth, [1987] 2 S.C.R. 291.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C‑34, ss. 510, 512, 516(1)(g).

Authors Cited

Groberman, Harvey. "The Multiple Conspiracies Problem in Canada" (1982), 40 U.T. Fac. L. Rev. 1.

APPEAL from a judgment of the Ontario Court of Appeal (1989), 51 C.C.C. (3d) 129, 72 C.R. (3d) 309, dismissing an appeal from conviction by Scott Dist. Ct. J. Appeal dismissed.

Michael Code, for the appellant Darryl Anthony Douglas.

Clayton Ruby, for the appellant Robert James Douris.

Robert W. Hubbard and L. R. A. Ackerl, for the respondent.

//Cory J.//

The judgment of the Court was delivered by

Cory J. -- At issue on this appeal is the adequacy of an indictment charging the appellants with conspiring to traffic in cocaine. It is argued that both the indictment and the testimony given at trial referred to at least two separate and distinct conspiracies. The appellants contend that, although they were parties to one conspiracy, they were never parties to the conspiracy that was actually charged and should, therefore, be acquitted.

The Facts

The indictment against the appellants reads as follows:

Between the 5th day of December, 1983 and the 19th day of February, 1984, in the City of Kitchener, in the Judicial District of Waterloo; in the City of Sarnia, in the County of Lambton; and elsewhere in the Province of Ontario; and in the City of Montreal, in the Province of Quebec; they did unlawfully conspire and agree the one with the other or others of them, and with Brent Howard Harding and Douglas Patrick Reidt, and with a person or persons unknown, to commit an indictable offence, to wit: traffic in a narcotic, to wit: cocaine, contrary to Section 4(1) of the Narcotic Control Act, thereby committing an indictable offence, contrary to Section 423(1)(d) of the Criminal Code of Canada.

There have been two trials on the indictment. The evidence called by the Crown in both trials was virtually the same. In neither case was evidence called by the defence. The principal Crown witness was Sgt. Myny, a police officer from Michigan.

Phase I

Sgt. Myny's testimony revealed that he arrested one "Sue Ellen" on a cocaine trafficking charge in December of 1983. In exchange for a promise of lenient treatment, Sue Ellen agreed to introduce Myny to other cocaine dealers. Pursuant to her undertaking, she arranged to have Sgt. Myny meet a person named Brent Harding at a restaurant in Windsor, Ontario, on December 14, 1983. Harding was then residing in Kitchener. According to Sue Ellen, he imported cocaine from Venezuela and Colombia. Sue Ellen had acted as a "mule" and carried the cocaine into Michigan to Harding who would then smuggle it into Canada.

During the meeting of December 14, Sgt. Myny, Harding and Sue Ellen discussed the possibility of Harding's arranging for Myny to purchase cocaine. Two suppliers were discussed, one Florida supplier named Williams and a "West Palm Beach" supplier. It was agreed that Harding would purchase one kilo from the West Palm Beach supplier for $40,000 and then charge Myny $5,000 for acting as the go-between. At the same meeting, Harding advised that he had a partner who was later identified as Douglas Reidt. The appellants Douglas and Douris were not mentioned during this meeting, they were not involved in this initial agreement and they were not connected in any way with the Florida suppliers.

It was agreed that the cocaine would be delivered in Michigan and paid for in American dollars. Two days later, on December 16, Harding informed Myny that the deal would now cost $50,000, that Harding's partner, Reidt, would make the arrangements and that it would take a couple of days to obtain the cocaine. The arrangement was that Harding would contact Reidt who would in turn go to the source. Harding and Myny arranged to meet with Reidt in London, Ontario, on December 20. On that day, Harding arrived without Reidt and refused to complete the transaction. He gave as an excuse that he did not know Myny well enough and suspected that he might be a police officer.

On December 22, Sue Ellen advised Myny that Harding was ready to complete the deal. She said that they had been testing him at the December 20 meeting. Further negotiations led to the final agreement that Myny would purchase two kilos of cocaine for $100,000 U.S. A meeting was arranged for January 6 in Port Huron, Michigan, to finalize the details. The transaction itself was to be completed on January 8. It was agreed that Myny would show his money to Harding and Reidt at the meeting, who would then telephone the Florida supplier. The supplier, in turn, would then travel to Michigan and deliver the drugs to Myny. The proposed January 6 meeting was delayed because Harding was having problems getting in touch with the supplier. On January 9, Harding informed Myny that the supplier had refused to make delivery in Michigan. Myny stated that he was unwilling to go down to West Palm Beach to take the delivery. As a result, the deal was frustrated and came to an end on January 9, 1984.

Phase II

Harding phoned Myny again on January 12, 1984. This time he informed Myny that he had a "new player". Arrangements were made to meet in Sarnia on January 14. On that date, Harding introduced Myny to the two appellants in a Sarnia tavern. The wiretap evidence reveals that Harding phoned Reidt several times between January 9 and January 12. On January 12, Harding asked Reidt for the number of the "guy on Weber Street". Douglas lived on Weber Street. As was the situation in Phase I, Reidt was not the supplier, but he was Harding's assistant in contacting the appellants and appears to have been very much involved in the organization of the deal.

At the January 14 meeting, the appellant Douris told Myny that the transaction would take place within four days of Myny's advising him that he was ready to take delivery. Once again, the sale was to be for two kilos of cocaine at $50,000 each. Myny made certain that the appellants would take care of Harding's share out of the proceeds of the sale. Douris indicated the following procedure for taking delivery: Douris and Myny would meet in a Michigan hotel to complete the delivery of the cocaine and payment for it. Each would have the assistance of a courier. Douglas told Myny that Harding's previous deal fell through because he was dealing with amateurs. He told Harding that he had done his part and that the appellants would now deal with Myny.

The next day, January 15, Myny accepted the offer put forward by Douglas and Douris. On that same day, the telephone surveillance evidence and the wiretap evidence confirmed that Harding was meeting the appellants in Kitchener at the time that Myny confirmed his purchase of the cocaine. The events of the next few days revealed that the deal was not going as planned. Harding informed Myny that the appellants wanted him to take delivery in Canada. On January 31, Harding said that Douris had told him that the drugs would be ready in three days. Myny requested another meeting to discuss the changes to the deal, but this meeting never took place and, as Myny expressed it, the deal died around February 4, 1984.

Phase III

Two and a half months later, Harding re-established contact with Myny and arranged to meet him on April 30. At this meeting, Myny dealt with both Harding and Reidt and an agreement was reached whereby they were to deliver three kilos of cocaine to Myny in Michigan. The delivery was duly made, both Harding and Reidt were arrested, tried, convicted and sentenced to the mandatory term of life imprisonment for conspiracy to deliver an amount of cocaine exceeding 650 grams. The appellants were not, in any way, involved in this last transaction. When eventually arrested, Douglas told the police that he knew of Harding and Reidt's arrest and had been waiting to be arrested. He did not deny his involvement, but said that his role was not as big as that of Harding and Reidt.

The Courts Below

The First Trial

The appellants' first trial came on before Salhany J. At the conclusion of the Crown's case, a motion for non-suit was brought on two grounds. First, it was said that the indictment charged multiple conspiracies, whereas the appellants had only participated in one. Secondly, it was argued that the evidence did not disclose that the conspiracy had been committed in Canada. Salhany J. dismissed the argument pertaining to the indictment in these words:

... I have come to the conclusion that it is not necessarily fatal to the prosecution, at the end of the prosecution's case, that the evidence may have established separate conspiracies against each accused before the court.

This issue is ... whether the Crown has proven the conspiracy charged against two or more of the accused notwithstanding the evidence of a second conspiracy.

In this case, the Crown, in the opening statement indicated that he was relying upon a meeting held on January 14, 1984, between Myny, Harding and the two accused to support the conspiracy. It may be that this evidence would fail to prove that Reidt was part of this conspiracy. That, however, does not automatically mean that the charge must fail against the two accused.

In my view, it is open for the Crown ... to rely upon the conspiracy as stated in the opening address ... and if the evidence supports that allegation, the Crown is entitled to prove the case against the accused....

However, Salhany J. did dismiss the Crown's case on the ground that the evidence did not disclose that a conspiracy had been committed in Canada.

The Crown appealed this decision. The Court of Appeal agreed with the Crown's submissions and ordered a new trial.

The Second Trial

The second trial came on before Scott Dist. Ct. J. At the conclusion of that trial, the appellants were convicted and sentenced to two years imprisonment. Although Scott Dist. Ct. J. did not make a specific finding as to whether there was more than one conspiracy, she did hold that the main conspiracy was that involving the appellants and if there were separate conspiracies, this was not fatal to the Crown's case since there was clear evidence of the appellants' and Harding's involvement with Myny and their agreement to sell two kilos of cocaine for $100,000.

The Court of Appeal (1989), 51 C.C.C. (3d) 129

The Majority

The majority of the Court of Appeal, Craig J. (ad hoc), Robins J.A. concurring, held that the conspiracy charged was the one proven at trial even though evidence had been adduced of a second conspiracy (Phase I) in which the appellants were not involved. Craig J. found that the language of the indictment did not reveal an intention of charging more than one conspiracy. In his view, the evidence of the Phase I conspiracy was introduced by the Crown to show how the conspiracy as charged originated. He decided that the appellants were not prejudiced or put at risk of being convicted of two conspiracies by the introduction of this evidence. They were not charged with the Phase I conspiracy arising out of the Windsor and London meetings and they were not parties to it. As a result, the appeal was dismissed.

The Minority

The minority, Carthy J.A., held that while the appellants were clearly guilty of conspiring with Harding on January 14, 1984, the indictment contained one count charging a conspiracy between December 5, 1983 and February 19, 1984. In his view, a reasonable reading of the indictment, particularly the dates, places and parties, indicated that the Crown charged a broad conspiracy encompassing both Phase I and Phase II. He held that this interpretation of the indictment was consistent with the proceedings as they developed from the indictment through the evidence adduced at trial and the submissions of the Crown on appeal. He noted that it was only in oral argument in the Court of Appeal that the Crown advanced the argument that the conspiracy charged was limited to Phase II and that the evidence of Phase I was merely background. He observed that, while the appellants knew of the existence of the Phase I conspiracy, they did not join it but belittled it as involving amateurs. Therefore, he would have set aside the convictions and substituted a verdict of acquittal.

It is significant that Carthy J.A. emphasized that Reidt was in competition with Douglas and Douris. This was important to the conclusions he reached. This same point was strongly argued by counsel for the appellants on this appeal, yet, with respect, there does not seem to be any evidence to support this position.

Provisions of the Criminal Code Pertaining to Indictments

Sections 510 and 512 of the Criminal Code, R.S.C. 1970, c. C-34, provide:

510. (1) Each count in an indictment shall in general apply to a single transaction and shall contain and is sufficient if it contains in substance a statement that the accused committed an indictable offence therein specified.

(2) The statement referred to in subsection (1) may be

(a) in popular language without technical averments or allegations of matters that are not essential to be proved,

(b) in the words of the enactment that describes the offence or declares the matters charged to be an indictable offence, or

(c) in words that are sufficient to give to the accused notice of the offence with which he is charged.

(3) A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information with respect to the act or omission to be proved against him and to identify the transaction referred to, but otherwise the absence or insufficiency of details does not vitiate the count.

(4) Where an accused is charged with an offence under section 47 or sections 49 to 53, every overt act that is to be relied upon shall be stated in the indictment.

(5) A count may refer to any section, subsection, paragraph or subparagraph of the enactment that creates the offence charged, and for the purpose of determining whether a count is sufficient, consideration shall be given to any such reference.

(6) Nothing in this Part relating to matters that do not render a count insufficient shall be deemed to restrict or limit the application of this section.

512. No count in an indictment is insufficient by reason of the absence of details where, in the opinion of the court, the count otherwise fulfils the requirements of section 510 and, without restricting the generality of the foregoing, no count in an indictment is insufficient by reason only that

(g) it does not name or describe with precision any person, place or thing, ...

Pursuant to s. 516(1) of the Code, particulars of the indictment may be ordered. That section provides:

516. (1) The court may, where it is satisfied that it is necessary for a fair trial, order the prosecutor to furnish particulars and, without restricting the generality of the foregoing, may order the prosecutor to furnish particulars

(g) further describing a person, place or thing referred to in an indictment.

Thus, the Code provides that the indictment must contain sufficient details of the circumstances of the alleged offence to give the accused reasonable information with respect to the act or omission to be proved against him and to identify the transaction referred to. In cases where confusion exists as to the indictment, a provision is made for the accused person to obtain particulars. The indictment can and should be expressed in clear and simple language.

Indictments Generally

Certain principles pertaining to indictments generally can be derived from the decisions of this Court. In R. v. Côté, [1978] 1 S.C.R. 8, the accused was charged with failing to provide a breath sample contrary to then s. 235(2) of the Criminal Code. The information omitted the words "without reasonable excuse". No objection was made to this omission and a defence of reasonable excuse was tendered and rejected by the trial court. De Grandpré J., writing for six of the seven judges, stated at p. 13:

... the golden rule is for the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and a fair trial. When, as in the present case, the information recites all the facts and relates them to a definite offence identified by the relevant section of the Code, it is impossible for the accused to be misled. To hold otherwise would be to revert to the extreme technicality of the old procedure.

In R. v. Wis Development Corp., [1984] 1 S.C.R. 485, the appellant refused to provide particulars to the respondents who were charged with unlawfully operating a commercial air service. The respondents, therefore, prior to plea, made an application to quash the information. Lamer J., as he then was, writing for the Court, held that the information was defective because the words "operation of a "commercial air service"" could relate to many activities or usages of aircraft in Canada. At page 493 he stated:

When accused, the citizen shall then be treated fairly. This requires that he must be able clearly to identify what he is alleged to have done wrong so that he may prepare his case adequately....

The Ontario Court of Appeal in R. v. Ryan (1985), 23 C.C.C. (3d) 1, considered whether precise time and location needed to be specified in a charge of impaired driving or driving with a blood alcohol reading over the prescribed limit. It was argued that in light of Wis, supra, the accused was entitled to a detailed description of time and place of the offence. The Court of Appeal reasoned that the rationale of Wis was based not on the failure to set out the time or location of the offence, but rather on the failure to identify the particular act which was alleged to have constituted the offence. At page 6 the following was stated:

The test continues to be whether the information contains sufficient detail to give to the accused reasonable information with respect to the charge and to identify the transaction referred to therein. In our opinion, the kind of information that will be necessary to satisfy this test will vary depending on the nature of the offence charged.... What particularity will be needed with respect to a given charge will "depend on the circumstances".... [Emphasis added.]

The same principles were considered and applied in Re Regina and R.I.C. (1986), 32 C.C.C. (3d) 399 (Ont. C.A.). At page 403, Krever J.A. stated:

That decision [R. v. Ryan] seems to me to make it clear that nothing in the WIS case casts doubt on the correctness of this general statement in Salhany, Canadian Criminal Procedure, 4th ed. (1984), p. 214:

Whether or not the charge contains sufficient details to give the accused reasonable information and to identify the transaction referred to will depend upon the facts of each case and the nature of the charge.

With that proposition in mind, I turn to an examination of the facts of this case and the nature of the charge. Especially important is the nature of the charge -- an extended (six-month) course of conduct of sexually assaulting a nine-year-old child. It is, therefore, a kind of case in which, because of the age of the alleged victim, full particularity with respect to, for example, dates, is likely impossible and to require it would make prevention of a serious social problem exceedingly difficult. ... The accused sought ... particulars of the information.... Before making the request for particulars, he had pleaded to the charge. He had, by that time been permitted to read the Crown's brief. Crown counsel, in response ... volunteered that he was relying on 10 separate incidents which had occurred between May 31, 1984, and December 15, 1984.... [Emphasis added.]

From these cases it can be seen that an indictment is adequate if it contains sufficient details to give the accused reasonable information with respect to the charge and to enable the accused to identify the transaction so as to permit the adequate preparation of the defence. Whether an indictment is sufficient will depend on the offence charged and the facts of the case. Time is not required to be stated with exact precision unless it is an essential part of the offence charged and the accused is not misled or prejudiced by any variation in time that arises.

As well, it can generally be said that a charge has been established if the evidence discloses the commission of the offence within the time period set out in the indictment. See, for example, Container Materials Ltd. v. The King, [1942] S.C.R. 147, at p. 159 and R. v. Hoffmann-La Roche Ltd. (1980), 53 C.C.C. (2d) 1, at p. 52, aff'd 1981, 62 C.C.C. (2d) 118 (Ont. C.A.). In the Hoffmann case the accused was charged with selling articles at unreasonably low prices contrary to the Combines Investigation Act. At pages 52-53, Linden J. stated:

I do not think the defence is correct in arguing that the Crown must prove in this case that the accused engaged in a policy of selling at unreasonably low prices continuously, throughout the entire period January 1, 1968 to November 30, 1974. The indictment says that the offence was committed "between" those dates, not that it continued during the entire period. It is sufficient, I hold, to prove that the offence was committed at some point within the time frame alleged. I find that the Crown has accomplished this when it proved that the policy was engaged in from June 25, 1970 to June 30, 1971, a period which is clearly within the dates alleged. [Emphasis added.]

The requirements that an information must meet have been set forth with great clarity by Wilson J. in R. v. B. (G.), [1990] 2 S.C.R. 30, at pp. 44-45, in this way:

It is apparent from these cases that what constitutes reasonable or adequate information with respect to the act or omission to be proven against the accused will of necessity vary from case to case. The factual matters which underlie some offences permit greater descriptive precision than in the case of other offences. Accordingly, a significant factor in any assessment of the reasonableness of the information furnished is the nature and legal character of the offence charged. It is also apparent, however, that in general an information or indictment will not be quashed just because the exact time of the offence is not specified. Rather, the matter will continue on to trial on the merits. While it is obviously important to provide an accused with sufficient information to enable him or her to identify the transaction and prepare a defence, particularity as to the exact time of the alleged offence is not in the usual course necessary for this purpose. It goes without saying, of course, that there may be cases where it is.

Ultimately it will have to be determined if the indictment in the case under consideration meets these requirements.

Indictments as They Pertain to the Offence of Conspiracy

The offence of conspiracy has long been recognized in the criminal law. It can often play a valid and significant role in the prosecution of those seeking to traffic in illicit drugs. While the offence of conspiracy is inherently difficult to frame, the indictment must be set forth with such reasonable precision as to inform the accused of the fundamental nature of the conspiracy charged.

The essence of the offence of conspiracy is the agreement to perform an illegal act or to achieve a result by illegal means. In this case, those accused of the conspiracy must be found to have agreed to traffic in cocaine. How that agreement is to be carried out, that is to say, the steps taken in furtherance of the agreement (the overt acts) are simply elements going to the proof of the essential ingredient of the offence, namely, the agreement. This was the principle which was enunciated by Dickson J., as he then was, in R. v. Cotroni, [1979] 2 S.C.R. 256.

If that principle is borne in mind, it is perhaps easier to consider the problems of indictments in conspiracy cases. They may arise in either of two ways. First, a conspiracy count may charge the accused with two or more conspiracies; secondly, the count may charge only one conspiracy, but proof at trial may demonstrate that there was more than one conspiracy. A count in an indictment which charges the accused with two or more conspiracies gives rise to issues of duplicity. A count which charges just one conspiracy where the proof at trial reveals more than one conspiracy raises the question of whether the Crown has proven the conspiracy charged against the accused despite the evidence of a second conspiracy.

The issue was put forward in this way by Dickson J. in Cotroni, supra, at p. 285:

A distinction must be drawn between a conspiracy count which charges the accused with two or more conspiracies, and a count which charges one conspiracy only but is supported by proof during trial of more than one conspiracy. The former gives rise to questions of duplicity. The latter raises the question of whether the Crown has proven the conspiracy charged against two or more of the accused notwithstanding evidence of a second conspiracy.

He continued at pp. 286-87:

Where several conspiracies are shown to have been committed, the problem arises of determining which one of these conspiracies is that envisaged by the charge.

Whether any or all of the conspiracies that have been proven to have been committed are covered by the indictment depends on the construction of the charge.

In R. v. Paterson, Ackworth and Kovach (1985), 18 C.C.C. (3d) 137 (Ont. C.A.), aff'd sub nom. R. v. Ackworth, [1987] 2 S.C.R. 291, Martin J.A. summarized some basic principles that are applicable to a consideration of indictments in conspiracy cases which may usefully be considered in this case. He stated at pp. 143-44:

The prosecution must prove the conspiracy alleged. Where the count alleges that the accused conspired together for a common purpose but the prosecution proves only that some of those accused had conspired with one of their number for their own purposes, no common purpose such as that alleged has been established....

Where the evidence establishes the conspiracy alleged against two or more accused (or against one accused and an unknown person where the indictment alleges that the accused conspired together and with persons unknown), it is immaterial that the evidence also discloses another and wider conspiracy to which the accused or some of them were also parties: R. v. Greenfield et al., supra, at p. 857; R. v. Coughlan and Young, supra, at p. 35.

Although other conspirators, in addition to Daley and Doroshenko, are named in count 1, it is elementary that proof of the participation of all the named conspirators is not essential and does not result in proof of a different agreement to that charged.

The present case is the converse of R. v. Griffiths et al., supra, and R. v. Longworth et al., supra. In those cases the conspiracy charged in the indictment was a wider, more serious and fundamentally different conspiracy than the one proved.

In the present case, the evidence established and the judge found that the respondents were participants in a conspiracy to traffic in two illicit drugs in which Daley and Doroshenko were the central figures. Each count in the indictment charged a conspiracy to traffic in one of the illicit drugs only. The issue is whether proof of the respondents' participation in a conspiracy to traffic in both drugs, in which Daley and Doroshenko were the central figures, necessarily also proved their participation in a conspiracy with Daley and Doroshenko to traffic in one of the drugs as charged in each count.

In R. v. Griffiths et al., supra, and R. v. Longworth et al., supra, the evidence failed to prove that the accused were participants in the general conspiracy alleged and it would be grossly unfair and improper to convict them of a different conspiracy than that with which they were charged. In the present case, the evidence proved more than what was alleged in each count; it proved that the respondents were participants in a conspiracy to traffic in both drugs, not just the ones specified in the count. The respondents suffered no prejudice and cannot complain because the Crown limited the conspiracy charged in each count to conspiracy to traffic in only one of the drugs.

Application of the Foregoing Principles to the Case at Bar

In the case at bar, there is no question that a conspiracy or agreement was proven, namely, that Douglas and Douris conspired or agreed, at least with Harding and Myny, to sell two kilos of cocaine to Myny for $100,000 U.S. The evidence also established the Phase I conspiracy involving Harding, Reidt and an unknown Florida supplier to sell the same amount of cocaine to Myny for the same price. Lastly, there was a conspiracy proven whereby Harding and Reidt agreed to sell and then sold three kilos of cocaine to Myny in Michigan in April, some two months after the date of the conspiracy alleged in the indictment. Whether this Phase III transaction is a separate event or merely a continuation of the Phase I conspiracy, is not important for our purposes.

Does the indictment charge only the Phase II conspiracy or does it, as the appellants argue, charge a broader conspiracy covering both Phase I and Phase II? If the appellants are correct, the Crown has failed to prove the offence charged since the appellants had no involvement whatsoever in the Phase I conspiracy.

In my view, the Crown did prove the offence as charged. First, with regard to the time, the indictment refers to a relatively short period between December 5, 1983 and February 19, 1984. It should be observed that the date of December 5 precedes both the Phase I conspiracy and the Phase II conspiracy. February 19 was the time the Phase II conspiracy, in the words of Sgt. Myny, "had died". The December 5 date may be an indication of when Sgt. Myny first spoke to Sue Ellen and learned that she would reveal to him the names of cocaine dealers. He referred to this conversation as occurring early in December. Although, ideally, the indictment might have referred only to the time from the January 11 or 12 to February 19, it is difficult to see what prejudice was occasioned by reference to the earlier date.

Most importantly, the indictment specified the cities which pertained exclusively to the Phase II conspiracy. That is to say, it referred specifically to the places where the discussions occurred, namely, Sarnia and Kitchener. It will be remembered that the Phase I conspiracy involved negotiations and an eventual agreement that took place in the cities of Windsor and London. With respect to the Phase II conspiracy, it was the City of Sarnia where the key agreement was made. Douglas and Harding resided in Kitchener and Douris in Montreal. To my mind, there could not be a clearer indication that the indictment was referring only to the Phase II conspiracy which was clearly proven in this case. The reference to Sarnia and Kitchener indicated to the appellants that the Phase II conspiracy was the sole subject of the indictment. In other words, it gave them reasonable notice of the offence charged. As well, it is not without some significance that only Douglas and Douris were charged in the indictment.

Much was made of the fact that the indictment went on to say "and elsewhere in the Province of Ontario". Counsel for the Crown submitted, and research bears him out, that "these words, superfluous as they may be, are common to almost all indictments of conspiracy that take place in the Province of Ontario." These unnecessary and surplus words cannot be said to constitute a basis for finding that the indictment did not reasonably disclose the offence charged. This is particularly so when the key locations of Sarnia and Kitchener, which were crucial to the Phase II conspiracy, were specifically set out and no reference was made to Windsor and London, where the Phase I conspiracy took place. Again, the reference to Sarnia and Kitchener clearly indicates that the conspiracy charged was the Phase II conspiracy. The reference to elsewhere in Ontario does not make this any less clear.

Since the sole issue in this case is to determine whether the prosecution proved the conspiracy alleged, the fact that the evidence established more than one conspiracy is not necessarily fatal to the prosecution. In Cotroni, supra, it was recognized that whether any or all of the conspiracies that had been proven to have been committed were covered by the indictment depended on the construction of the charge. The proof of the Phase I conspiracy involving Harding and Reidt and the Phase III agreement in April, again involving Harding and Reidt, were not essential to the proof of the conspiracy involving Douglas and Douris. Nevertheless, Phase I was important in the narrative of events. It established the circumstances under which Myny met Sue Ellen and how the undercover operation began. It also revealed that Myny was known to be in the market for a very significant quantity of cocaine and the price he was willing to pay. At the Sarnia meeting, Douglas and Douris confirmed that they were aware of the quantity and price to be paid for the cocaine. The Phase III transaction was, as well, important for the narrative of the case. The evidence of Phase III was necessary to explain the reaction of Douglas when he was arrested, specifically that he was aware of what had happened to Harding and his volunteered statement that he played a lesser role than Harding.

The reasons of the minority in the Court of Appeal stressed that Reidt was not involved in the Phase II conspiracy, but was in fact a competitor of the appellants. This same factor was stressed by counsel for the appellants. I cannot find any evidence that Reidt was, or could in any way be considered to be, a competitor of Douglas and Douris.

Rather, the evidence reveals that Reidt was involved in the arrangements Harding made with Douglas and Douris. The testimony of Sgt. Myny clearly establishes that Reidt was Harding's partner during Phase I. More importantly, contrary to the assertions of counsel for the appellants, Reidt was clearly involved in the Phase II conspiracy. For example, Reidt phoned Harding on January 9 saying: "I'll see you [Harding] in a bit". On January 11, the day before Harding contacted Myny to set up a meeting with a "new player", there were three telephone calls between Harding and Reidt. In the first, Harding asked Reidt if he got "a hold of what's his name". In the second, Reidt phoned Harding to say that, "He phoned". In the third, Harding phoned Reidt asking for the number of "the guy over on Weber Street". The evidence established that Douglas lived on Weber Street. Reidt said that "the guy talked to him last night". Further, less than two minutes after Harding had spoken by telephone to Myny on January 12, 1984, advising Myny that he had "new players" (the appellants) and setting up the January 14 meeting in Sarnia, Harding called Reidt. It would therefore seem that Reidt assisted Harding in making contact with Douglas.

The evidence clearly confirms that Reidt was Harding's partner and not a supplier. He was his partner in what the drug trade refers to as "making the connect" or "making the contact" between the buyer and the seller or supplier. It is thus apparent that there is absolutely no evidence that Reidt and the appellants were competitors. From the testimony of Myny, it would appear that in Phase I Myny was the buyer, the "connect" was Harding and Reidt and the seller was to be a Florida supplier. In Phase II, Myny was once again the buyer, Harding and Reidt were again the "connect" and the supplier or seller was to be the appellants.

There is no question that Reidt was, at least to some extent, implicated in the Phase II conspiracy. Clearly, it is not incumbent upon the Crown to prove the involvement of every member alleged to be part of the conspiracy. Even if he were not involved, the conspiracy charged was proved. If the conspiracy proven includes fewer members than the number of accused or extends over only part of the period alleged, then the conspiracy proven can still be said to be the same conspiracy as that charged in the indictment. In order to find that a specific conspiracy lies within the scope of the indictment, it is sufficient if the evidence adduced demonstrates that the conspiracy proven included some of the accused, establishes that it occurred at some time within the time frame alleged in the indictment, and had as its object the type of crime alleged. This point was very well made by Groberman in the article "The Multiple Conspiracies Problem in Canada" (1982), 40 U.T. Fac. L. Rev. 1, at pp. 9-10:

Unless the indictment is unusually precise, it will normally merely specify the type of offence that was the subject of the agreement, and the persons alleged to have been involved, along with a period of time over which the conspiracy is alleged to have occurred. Even if the conspiracy proven includes fewer members than the number of accused charged, or extends over only part of the period alleged, the conspiracy charged can be said to be the same conspiracy as that proven. Thus, in order for a specific conspiracy to lie within the scope of the indictment, it is only necessary for it to have included some of the accused, occurred at some time within the span alleged in the indictment, and had as its object the type of crime alleged.

It follows that the conspiracy charged could be established even without proof that the conspiracy involved Reidt. It was sufficient for the Crown to prove that Harding, Douglas and Douris agreed, or conspired to traffic in cocaine during the time period alleged.

There is another factor which is appropriate to take into account. This Court has held that the opening address is a factor to be taken into account in construing the indictment; Cotroni, supra, per Dickson J. at pp. 285-86. In its opening address at the first trial, the Crown stated that it was relying on the January 14 meeting. It is true that the new trial constituted a new beginning. Yet, in this case, the Crown made a very short opening statement at the second trial. The opening referred to the first trial and that, as a result of the decision of the Court of Appeal, the jurisdictional argument was no longer available to the defence. Reference was made to the section of the Criminal Code relied upon and the two principal witnesses to be called. The greatest portion of the very brief opening was taken up with a request for defence counsel to make known their position with regard to the wiretap evidence. No details were given and, particularly, no reference was made to the meeting in Sarnia.

In these circumstances, where the Crown stated the essence of the conspiracy relied on at the first trial and omitted to make any such statement, whether consistent or inconsistent with that given at the first trial, at the second trial the Crown is bound by the position it had taken in its opening at the first trial. This position, as summarized by Salhany J. in his reasons, was that the Crown was relying on the January 14 Sarnia meeting to establish the conspiracy. The appellants were entitled to rely upon the position thus adopted by the Crown. It would have been unfair and unacceptable for the Crown, without special notice to the defence, to have changed its position in this regard. That opening in which the Crown stated it was relying upon the Sarnia meeting of January 14 clearly indicated that the conspiracy the Crown sought to establish was that entered into by the appellants with Harding and Myny; that is to say, the Phase II conspiracy.

In summary, the wording of the indictment, the opening at the first trial and the evidence adduced at both trials reveal that the Crown proved the conspiracy charged: the Phase II conspiracy. The time frame indicated in the indictment is not unreasonable, especially when one considers when Myny commenced the undercover operation. The places specifically referred to in it can only refer to the Phase II conspiracy. The reference made to "elsewhere in the Province of Ontario" does not open up the indictment to an interpretation that the appellants were co-conspirators in the Phase I conspiracy.

The evidence of Phase I and Phase III adduced at both trials does not mean that the Crown was charging a conspiracy broader than Phase II. Such evidence was important as background to the conspiracy actually charged. The evidence clearly established that Reidt assisted Harding during Phase II and was not the appellants' competitor. As well, the opening statement at the first trial, which in these circumstances the appellants are entitled to rely on, indicated that the Crown was relying heavily on the January 14 Sarnia meeting. Lastly, the evidence called at the second trial which closely followed that called at the first trial, clearly established that the appellants conspired to traffic in cocaine.

The Crown has proven the conspiracy charged and that the appellants were adequately informed of the charge against them. Although it is not in any way necessary to the decision, I would note that the appellants did not at any time request particulars of the indictment.

In my view, the decision in Cotroni, supra, supports this conclusion. It will be remembered that in that case four people, Swartz, Papalia, Cotroni and Violi were charged with conspiring with each other, in the County of York and elsewhere in Ontario, to have possession of $300,000, knowing it was obtained by the commission in Canada of the indictable offence of extortion. At trial in Ontario, two conspiracies were proven: the first involved Swartz and Papalia, the second Cotroni and Violi. It was held that, although the language of the indictment might well be broad enough to include both conspiracies, the second conspiracy took place only in Quebec and nothing was done in furtherance of it within Ontario. As a result, it was found that Ontario had no jurisdiction in respect to it and, therefore, it had to be inferred that it was not the conspiracy referred to in the indictment.

Nonetheless, it was found that Papalia and Swartz conspired as charged and the conviction against Papalia was upheld. Thus, even though two conspiracies were proven at trial, it was found that the conspiracy charged against Swartz and Papalia was proven. So too, in the case at bar the conspiracy charged against the appellants was proven, although two conspiracies were proven at the trial.

Conclusion

In the result, I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellants: Ruby & Edwardh, Toronto.

Solicitor for the respondent: The Attorney General of Canada, Toronto.