The Prohibited Act, Or Actus Reus

• Author: Kent Roach
• Pages: 81-123

81

CHA PTER 3

THE PROHIBITED ACT,

OR

ACTUS R EUS

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 w ith the broader, gender neutral of-

fence of sexual assault which applied to all p ersons. In 1992 the law of

sexual assault was again changed, with Parli ament def‌ining consent

and stating specif‌ic instances in which consent did not exi st. The Su-

preme Court subsequently decided that for purpose s of determining

the actu s 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,1 the expansion

of the prohibited act in this and other cri mes plays an important role in

determining the extent of criminal liability. The broad nature of many

of the prohibited acts in the Criminal Code2 requires the judge to distin-

guish at sentencing among the relative culpability of various levels of

participation in crimes.

Almost all crime s in Canada are def‌ined in t he Criminal Code. In

order to ensure that there is f‌i xed 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 importa nt role in interpreting

1 See the dis cussion of mistake of fact in c h. 5, “The Fault Ele ment, or Mens Rea.”

2 Including the prov isions governing liabi lity as a party or accomplice t o an

offence, and prohibiti ng attempts to commit crime s. See ch. 4, “Unfulf‌illed

Crimes and Pa rticipation in Crime s.”

CR IMIN AL LAW82

the words used to def‌ine crime s. Sometimes, courts interpret words

in an offence restrictively in order to benef‌it the accu sed, but not in

all cases. L aws may be struck down under sect ion 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 theor y allow citizens

to determine beforehand whether conduct is illegal. If citi zens do not

determine what is illegal, or if t hey mistakenly think somethi ng is legal

when it is not, ignorance of the law is not an excuse.

In order to obtain a conviction for a crimina l 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 me ns rea, that is requ ired for the crime. It will

be seen in this ch apter that the courts have sometimes f‌inessed this

requirement, often by def‌ining the cr iminal act in a broad fashion so

that it overlaps with a time in which the accused had the required fault

element. Sometimes when determining whether the accused has com-

mitted the actus reus, it is necessary to determine if he or she caused

some prohibited result. As will be seen, causation is def‌ined broadly in

homicide cases so th at an accused may be held to have caused another’s

death even though other factors, such as lack of medical t reatment or

the victim’s “thin skull,” contributed to the death. This approach f‌its

into the trend towards expansive def‌initions of the criminal act.

The criminal law has traditionally been reluctant to punish an

omission or a failure to act, but this attitude seems to be changing as

crimina l and regulatory offences punish people for failing to act or to

fulf‌ill speci f‌ic legal duties. Although the crimina l law generally keeps

the physical and mental elements of crimes distinct, an emergi ng line

of authority suggests that an accused who acts involuntarily may not

have committed an actus reu s. This interpretation effectively builds a

minimal fault or mental element into the actus reus. As a practical m at-

ter, it could prevent the Crown from convicting an accused who acted

in an involuntary and unconscious manner even though the offence

may have no fault element or one based on negligence.

A. CODIFIC ATION OF THE CR IMINAL ACT

The prohibited act, or actus reus, of an offence is a matter of statutory

interpretation. Since 1953, section 9 of the Criminal Code has prov ided

that no person shall be convicted of an offence at common law (judge-

The Prohibited Act, Or Actus Reus 83

made law) except contempt of court. To be convicted of a cri minal or

regulatory offence in Canada, a person must do something that is pro-

hibited by a valid statute or regulation. This requirement accords with

the ideal that one should not be punished except in accordance with

f‌ixed, predetermined law.

The value of certainty and having a predef‌ined crimina l law is now

supported by some Charter right s. As discussed in chapter 2, section

11(a) gives an accused the r ight to be informed without unreasonable

delay of the specif‌ic offence charged; section 11(i) protects the accused

against the burden of retroactive laws; and sect ion 11(g) provides t hat

the act or omission must, at the time it was committed, have been il-

legal under Canadian or inter national law. As will be discussed below,

section 7 of the Charter ha s also been interpreted to prohibit crim inal

sanctions that are so vag ue or overbroad that they do not provide fair

notice to the citizen or limit law en forcement discretion.

Even before the enactment of section 9 of the Criminal Code and

the Char ter, Canadian courts were reluctant to create common law or

judge-made crimes on the basis t hat they

would introduce great uncer tainty into the ad ministration of t he

crimin al law, leaving it to the judicial off‌ice r trying any p articular

charge to decide that t he acts proved constituted a cr ime or other-

wise, not by reference to any def‌i ned standard to be found in t he

Code or in reporte d decisions, but according to his indiv idual view as

to whether such acts were a di sturbance of the tranq uillity of people

tending to provoke physical repri sal.3

The Court thus held that a common law charge of acting in a m anner

likely to cause a breach of the peace by being a “peeping tom” was

not sustai nable.4 In contrast, courts in Engla nd continue to exercise “a

residual power, where no statute has yet intervened to supersede the

common law, to superintend those offenses which are prejudicial to t he

public welfare.”5 Crimes such as conspiracy to corrupt public morals

or to outrage public decency have been created under this common law

3 Frey v. Fedor uk (1950), 97 C.C.C. 1 at 14 (S.C.C.). The Supreme Court i nter-

preted a previous offe nce against conspiring t o effect an unlawful pur pose to

require a pur pose contrary to federal a nd provincial legislat ion as opposed to

the common law. R. v. Gralewicz (1980), 54 C.C.C. (3d) 289 (S.C.C.).

4 Parliament subs equently enacted a new crim e of loitering and prowling at night

on the property of a nother person near a dwelli ng house. See Criminal Code,

R.S.C. 1985, c. C-46, s. 177 [Code].

5 Shaw v. D.P.P., [1962] A.C. 220 at 268 (H.L.).