J. The Prohibited Act, or Actus Reus

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology. University of Toronto
• Pages: 10-11

Page 10

Every criminal or regulatory offence will have a prohibited act or omission, or actus reus. The prohibited act depends on how the legislature has worded the offence. For example, the prohibited act of theft is defined by Parliament in section 322(1) of the Criminal Code as the taking and conversion of anything. The prohibited act also depends on how the courts interpret the words of an offence. Sometimes the courts interpret these words restrictively to benefit the accused, but they may not do so if a restrictive interpretation defeats the clear purpose of the offence. The Supreme Court has interpreted the word anything in the offence of theft not to include the taking of confidential information from a computer screen, even though taking a piece of paper with confidential information on it would be theft. Parliament could always amend the criminal law to state clearly that confidential information constitutes a thing that can be stolen, or it could create a new offence of stealing confidential information from a computer. The definition of the prohibited act is perhaps the most important policy component of the criminal law. The trend is towards expansive legislative definitions of the prohibited act, with the most obvious example being the replacement of the offence of rape with sexual assault.

The actus reus is usually defined as an overt act, such as the taking of another person’s property. The legislature can, however, define the prohibited conduct as an omission or a failure to take action. For example, a parent can be guilty of the criminal offence of failing to provide the necessities of life to his or her child. Regulatory offences may often prohibit the failure to take action, such as keeping proper business...