The Prohibited Act, or Actus Reus
| Author | Kent Roach |
| Profession | Faculty of Law and Centre of Criminology.University of Toronto |
| Pages | 87-129 |
87
CHA PTER 3
THE PROHIBITED ACT,
OR
ACTUS R EUS
The a ctus 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 w ith 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 ass ault 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 purposes 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 cr imes 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 important role in interpreting
1 See the dis cussion of mistake of fact in C hapter 5(D)(4) and Chapter 10(B)(3)(d).
2 Including the prov isions governing liabi lity as a party or accomplice to a n of-
fence, and prohibiting at tempts to commit crimes. S ee Chapter 4, “Unfulfilled
Crimes and Pa rticipation in Crimes .”
CR IMIN AL LAW88
the words used to define crime s. Sometimes, courts interpret words
in an offence restrictively in order to benefit the accused, 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 citizens 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 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 theor y 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 ex pansive definitions of the cri minal act.
The criminal law has traditionally been reluctant to punish an
omission or a failure to act, but this attitude seems to be changing a s
crimina l and regulatory offences punish people for failing to act or to
fulfill speci fic legal duties. Although the criminal law generally keeps
the physical and mental elements of cr imes distinct, an emerg ing line
of authority suggests th at 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 court 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 89
made law) except contempt of court. To be convicted of a cr iminal 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 hav ing a predefined criminal 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 di scussed 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 of ficer 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 tran quillity of people
tending to provoke physical repr isal.3
The Court thus held that a common law charge of acting in a m an-
ner likely to cause a breach of the peace by b eing a “peeping tom” was
not sustai nable.4 In contrast, courts in England 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 to e ffect 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 crime of loite ring and prowling at night
on the property of a nother person near a dwellin g 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.).
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