Marshall and Wong were both found guilty conspiracy to commit robbery: 2015 ONSC 4593. There was no evidence that the conspiracy was ever carried out.
As part of a larger police investigation Marshall and Wong’s telephone conversations and text messages were being intercepted. Sixteen of those intercepts were filed as exhibits at trial. A police officer with expertise in coded language and slang testified about some of the words and language used in the recorded conversations. That said the ‘code’ used was neither sophisticated or particularly difficult to understand, essentially Marshall and Wong don’t use the term firearm but instead say ‘it’ or ‘one’ or ‘that thing’ or ‘the girl’. Justice Code summarized the first of the sixteen intercepts as follows:
The first of the sixteen intercepts is the most important one. The parties agreed that the subject matter of this initial telephone discussion is a robbery. The call was made by Wong and it was received by Marshall on May 8, 2013 at 4:14 p.m. Wong immediately told Marshall that a man is "counting fifteen stacks right now". Marshall clearly understood Wong's reference to "fifteen stacks" and he replied by asking "where?" It is agreed that this exchange about a man "counting fifteen stacks" is a reference to money and I infer, in the context of all the evidence, that it likely means $15,000. Wong then asked Marshall, "you don't thing it, you don't have it?" Marshall replied, "I can get, I'm going for that right now". It is agreed that these cryptic terms -- "thing", "it", and "that" -- in the context of all the evidence, are references to some kind of offensive implement that Wong and Marshall needed in order to carry out the robbery that was under discussion. I am satisfied that these references, which are repeated and added to in the subsequent intercepts, are to a weapon of some kind and that they likely refer to a firearm, although the exact kind of weapon is not an essential element of the offence and it is unnecessary to decide whether it is a firearm or some other kind of weapon at this stage of the proceedings. [@para 9]
Another 15 exchanges took place between Wong and Marshall setting out their difficulties and frustrations as they tried and failed to find a weapon. There are spats between Wong and Marshall as they grow concerned that each is telling others of their score.
Their communications wind down and the two expressed their frustration at not having capitalized on the opportunity: “Marshall stated, "I'm cheesed ... we could've did something with that right here". Wong replied, "I know".” [@para 31]
Ultimately no robbery was ever committed. The only issue at trial whether the offence of conspiracy had been perpetrated.
Code J stated the essential elements of the offence of conspiracy as follows:
it is now settled law that three essential elements must be proved by the Crown in a conspiracy case: first, an intention to agree; second, the completion of an agreement to commit an indictable offence; and third, an intention to carry out the agreement (which is sometimes referred to as the common design or as an intention to put the common unlawful design into effect [@para 40]
Defence argued “that the evidence disclosed mere talk, discussion and negotiation about a robbery, none of which can amount in law to an agreement.” [@para 41]
Code J rejected this argument and convicted Marshall and Wong. The Court held:
(…) that Marshall and Wong did reach an agreement to rob the man who had been seen counting money. Their agreement was conditional or was premised on Marshall securing a weapon that he had access to and it was conditional or premised on Wong checking with his "girl" in order to learn the present whereabouts of the man. In other words, it was an agreement to rob the man "if it is possible or propitious to do so", as explained in Mills and Root. The two conditions or premises -- concerning the weapon and the man's whereabouts -- related only to the parties' ability to successfully carry out the agreement. These conditions did not detract from the existence of an "overall dominant plan" to commit a criminal offence.[@para 49]
Although 16 intercepts were tendered Code J found that:
By the end of the second intercept, I am satisfied that an agreement had been reached to rob the man who had been seen counting money. The only rational inference from these two discussions between Marshall and Wong is that they were enthusiastically committed to a common goal of acting together in order to carry out a robbery. They assumed that Marshall would and could get his weapon, Wong had made inquiries as to the present whereabouts of the target of the robbery, and they agreed to meet in order to attempt the robbery. There was uncertainty as to the present location of the money but this was simply a contingency related to the ultimate success of the planned robbery. In all these circumstances, I am satisfied that there was an agreement between them to act together and carry out a robbery. [@para 51]
All talk and no action…. Still guilty.