The Prohibited Act, or Actus Reus

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology. University of Toronto
• Pages: 76-114

76

CHAPTER 3

THE PROHIBITED ACT,

OR

ACTUSREUS

The actus reusor 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 Su-

preme 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,1 the 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 Code2 r equire s the j udge to d istin -

guish at sentencing among the relative culpability of various levels of

participation in crimes.

Almost all crimes in Canada are def‌ined in the Criminal Cod e. 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

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 to a n

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

Crimes and Pa rticipation in Crime s.”

The Prohibited Act, or Act us Reus77

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 Charterif

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 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 that an accused may be held to have caused another’s

death even though other factors, such as lack of medical treatment 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

criminal and regulatory offences punish people for failing to act or to

fulf‌ill specif‌ic legal duties. Although the criminal law generally keeps

the physical and mental elements of crimes distinct, an emerging line

of authority suggests that an accused who acts involuntarily may not

have committed an actus reus. This interpretation effectively builds a

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

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. CODIFICATION OF THE CRIMINAL 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 provided

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

CRIMINAL LAW78

made law) except contempt of court. To be convicted of a criminal 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 criminal law is now

supported by some Charterrights. As discussed in chapter 2, section

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

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

against the burden of retroactive laws; and section 11(g) provides that

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

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

section 7 of the Charterhas also been interpreted to prohibit criminal

sanctions that are so vague or overbroad that they do not provide fair

notice to the citizen or limit law enforcement discretion.

Even before the enactment of section 9 of the Criminal Codeand

the Charter, Canadian courts were reluctant to create common law or

judge-made crimes on the basis that they

would introduce great uncertainty into the administration of the

criminal law, leavi ng it to the judicial off‌icer tr ying any particular

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

wise, not by reference to any def‌ined st andard to be found in the

Code or in reported decisions, but according to his individual view as

to whether such acts were a disturb ance of the tranquillity of people

tending to provoke physical repri sal.3

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

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

not sustainable.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 the

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. Fedoruk (1950), 97 C.C.C. 1 at 14 (S.C.C.). The Supreme C ourt inter-

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 sub sequently enacted a new cri me of loitering and prowling at night

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

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

5 Shaw v. D.P.P., [1962] A.C. 220 at 26 8 (H.L.).