The actus reus or prohibited act of any offence has important policy elements. For example, in 1983 the offence of rape, which was defined as non-consensual sexual intercourse by a man with a woman who was not his wife, was replaced with the broader, gender neutral of-fence of sexual assault which applied to all persons. In 1992 the law of sexual assault was again changed, with Parliament defining consent and stating specific instances in which consent did not exist. The Supreme Court subsequently decided that for purposes of determining the actus reus, consent should be based on the subjective views of the complainant. Although much of the controversy over sexual assault has concerned the appropriate fault or mental element,1the expansion of the prohibited act in this and other crimes plays an important role in determining the extent of criminal liability. The broad nature of many of the prohibited acts in the Criminal Code2requires the judge to distinguish at sentencing among the relative culpability of various levels of participation in crimes.
Almost all crimes in Canada are defined in the Criminal Code. In order to ensure that there is fixed predetermined law, the courts cannot create crimes on their own except in the case of contempt of court. At the same time, however, courts play an important role in interpreting
the words used to define crimes. Sometimes, courts interpret words in an offence restrictively in order to benefit the accused, but not in all cases. Laws may be struck down under section 7 of the Charter if they are so vague or overbroad that they do not provide fair notice of what is prohibited, or any limitation on law enforcement discretion. The ideal of a fixed, predetermined law should in theory allow citizens to determine beforehand whether conduct is illegal. If citizens do not determine what is illegal, or if they mistakenly think something is legal when it is not, ignorance of the law is not an excuse.
In order to obtain a conviction for a criminal or a regulatory of-fence, the Crown must always prove beyond a reasonable doubt that the accused committed the prohibited act (actus reus). The actus reus is only one element of a criminal offence, and it must in theory coincide with the fault element, or mens rea, that is required for the crime. It will be seen in this chapter that the courts have sometimes finessed this requirement, often by defining the criminal act in a broad fashion so that it...