SUPREME COURT OF CANADA

Citation: R. v. Déry, [2006] 2 S.C.R. 669, 2006 SCC 53

Date: 20061123

Docket: 30948

Between:

Jacques Déry

Appellant

and

Her Majesty The Queen

Respondent

‑ and ‑

Attorney General of Canada and

Canadian Civil Liberties Association

Interveners

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

Reasons for Judgment:

(paras. 1 to 52)

Fish J. (McLachlin C.J. and Binnie, LeBel, Deschamps, Abella and Charron JJ. concurring)

R. v. Déry, [2006] 2 S.C.R. 669, 2006 SCC 53

Jacques Déry Appellant

v.

Her Majesty The Queen Respondent

and

Attorney General of Canada and

Canadian Civil Liberties Association Interveners

Indexed as: R. v. Déry

Neutral citation: 2006 SCC 53.

File No.: 30948.

2006: February 16; 2006: November 23.

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

on appeal from the court of appeal for quebec

Criminal law — Attempted conspiracy — Whether offence of attempted conspiracy to commit substantive offence exists in Canadian criminal law.

D and S were charged with conspiring to commit theft and conspiring to possess stolen liquor. The trial judge found that no agreement had been established between the two men to steal or possess liquor and acquitted them of conspiracy, but found their actions more than merely preparatory to conspiracy and convicted them of attempting to conspire. A majority of the Court of Appeal affirmed their convictions. D alone appealed to this Court.

Held: The appeal should be allowed.

D’s convictions should be set aside and acquittals entered. An attempt to conspire to commit a substantive offence is not an offence under Canadian law. Criminal liability does not attach to fruitless discussions in contemplation of a substantive crime that is never committed, nor even attempted, by any of the parties to the discussions. Here, though D discussed a crime hoping eventually to commit it with S, neither D nor S committed, or agreed to commit, the crimes they had discussed. The criminal law does not punish bad thoughts of this sort that were abandoned before an agreement was reached, or an attempt made, to act upon them. [23] [37] [51‑52]

Furthermore, acts that precede a conspiracy are not sufficiently proximate to a substantive offence to warrant criminal sanction. Given that conspiracy is essentially a crime of intention, it is difficult to reach further than the law of conspiracy already allows. Even if it were possible, it has never been the goal of the criminal law to catch all crime “in the egg”. In this sense, conspiracies are criminalized when hatched. And they can only be hatched by agreement. This basic element of conspiracy exposes the otherwise hidden criminal intentions of the parties to it and this demonstrates their commitment to a prohibited act. By contrast, the criminal law intervenes later in the progression from thought to deed where someone acts alone. Overt steps are then thought necessary to disclose and establish with sufficient certainty the