The Prohibited Act, or Actus Reus
| Author | Kent Roach |
| Profession | Faculty of Law and Centre of Criminology. University of Toronto |
| Pages | 76-114 |
76
CHA PTER 3
THE PROHIBITED ACT,
OR
ACTUS REUS
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 woma n 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 ass ault was again changed, w ith Parliament defini ng consent
and stating specific instances in wh ich consent did not e xist. 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 t he extent of crim inal liabil ity. 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 cri mes.
Almost a ll cr imes 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, court s play an import ant 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 Reus 77
the words used to define crimes. Sometimes, courts inter pret words
in an offence re strictively in order to benefit the accused, but not in
all cases. Laws may be struck down under section 7 of the Ch arter if
they are so vague or overbroad t hat 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 citi zens
to determine beforehand whether conduct is illegal. If citi zens do not
determine what is illegal, or if they mi stakenly 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 actu s reus is
only one element of a crimina l offence, and it must in theor y coincide
with the fault element, or mens rea, that is required for the crime. It will
be seen in this chapter that the courts h ave sometimes finessed this
requirement, often by defining the criminal act in a broad fashion s o
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, caus ation 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 v ictim’s “thi n skull,” contributed to t he death. Thi s approach fits
into the trend towards expansive definitions of the cr iminal act.
The criminal law has traditionally been relucta nt to punish an
omission or a failure to act, but thi s attitude seems to be changing as
crimina l and reg ulatory offences punish people for failing to act or to
fulfill specific legal duties. Although the crimin al law genera lly keeps
the physical and mental elements of cr imes 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 involunta ry and unconscious manner even though the offence
may have no fault element or one based on negligence.
A. CODIFIC ATION OF THE CR IMINA L ACT
The prohibited act, or actus reu s, 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-
CRIMIN AL LAW78
made law) except contempt of court. To be convicted of a criminal or
regulatory offence in Ca nada, a person must do something that is pro-
hibited by a valid st atute or regulation. This requirement accords with
the idea l that one should not be punished except in accordance w ith
fixed, predetermined law.
The value of certainty and having a predefined crimin al law is now
supported by some Charter rights. As discussed in chapter 2, sect ion
11(a) gives an accused the right to be informed without un reasonable
delay of the specific offence charged; sect ion 11(i) protects the accused
against the burden of retroactive laws; and section 11(g) provides t hat
the act or omis sion must, at the time it was committed, have been il-
legal under Canadian or international law. As wi ll be discu ssed below,
section 7 of the Charter has also been inter preted to prohibit cri minal
sanctions that are so vague 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 Crimin al Code and
the Charter, Canadian courts were reluctant to cre ate common law or
judge-made crimes on the basis t hat they
would introduce great uncertainty into the administration of the
crimin al law, leavi ng it to the judicial officer tr ying any particular
charge to decide t hat 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 individu al 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 exercis e “a
residual power, where no st atute has yet intervened to supersede the
common law, to superintend those offenses which are prejudicial to the
public welfare.”5 Crime s such as conspiracy to corrupt public moral s 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.).
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