The Prohibited Act, or Actus Reus

• Author: Kent Roach
• Pages: 97-148

97

CHA PTER 3

THE PROHIBITED ACT,

OR

ACTUS R EUS

The actu s reus, or prohibited act, is def‌ined by the legislation creati ng

the specif‌ic crim inal or regulatory oence. In order to ensure that there

is f‌ixed predetermined law, the courts cannot create crimes on their

own. For similar rea sons, the Charter1 provide s important protections

against vague or retroactive criminal laws. For example, laws m ay be

struck down under section 7 of the Char ter if they are so vague th at they

do not provide fair notice of what is prohibited, or any limitation on law

enforcement discretion. Retroactive crim inal laws would also violate

section 11(g) of the Charter because they would fail to give people fair

notice of the act or omission that is prohibited and section 11(i) simil arly

protects against retroactive puni shments.

Although legislatures def‌ine the prohibited act, courts play an

important role in interpreting the words used to def‌ine crimes. The deter-

mination of the precise scope of the prohibited act is largely a matter of

statutory interpretation. Courts will interpret all statutes in a manner

designed to achieve their purposes, but in cases of reasonable ambiguity,

they will resort to a doctrine of strict construction of the criminal law

that will favour the liberty of the accused as well as the need for clarity

and fair notice in def‌ining what is prohibited. This is also consistent

with the ideal of a f‌ixed predetermined law that clearly alerts people to

what is prohibited.

1 Canadian Char ter of Rights and Freedoms, Part I of the Constitution Act, 1982,

being Schedule B to t he Canada Act 1982 (UK), 1982, c 11 [Charte r].

CR IMIN AL LAW98

The ideal of a f‌ixed, predetermined law should in theory allow

citizens to determ ine beforehand whether conduct is illegal. This is

important because t he criminal law has tr aditionally not allowed ignor-

ance or mistakes about the law to be an excuse for a crime. Section 19

of the Criminal Code provides th at ignorance of the law is not an excuse.

This generally means t hat a mistaken belief by accused that thei r actions

are legal will not be a defence to a crime, wherea s mistakes about the

existence of essenti al facts can be an excuse that will prevent the pros-

ecution from e stablishing m ens rea. There are l imited exceptions to this

rule with resp ect to ocially induced error and particular forms of mens

rea for theft and fraud th at allow accused to argue that they were acting

with a “colour of right” in that they thought they were legally entitled to

take property. This chapter will e xamine not only the prohibited act, but

the related principle that legal ignorance or mistakes are not excuses.

In order to obtain a conviction for a crimina l or a regulatory oence,

the Crown must always prove beyond a reasonable doubt that the

accused committed the prohibited act (actus reus).2 The actus reus is

only one element of a criminal oence. In theory, the prohibited act

must coincide with the fault element, or men s rea, for a crime to be

committed. It will be seen in this chapter that the court s have some-

times f‌inessed this requirement, often by def‌ini ng the criminal act in a

broad fashion so that it overlaps with a time in which the accused had

the required fault element.

Although the crimin al law generally keeps the physical and mental

elements of crimes distinct, an emerging line of authority sug gest s that

an accused who acts involuntarily may not have committed an actus

reus. Thi s interpretation eectively builds a minimal mental element

into the actus reus. As a pr actical matter, it could prevent the cour t from

convicting an accused who acted in an involuntary and unconscious

manner even though the oence may have no fault element or one based

on negligence. The accused can raise a defence of accident as a means

to raise a reasonable doubt about the voluntariness of the crim inal act.

Sometimes when determining whether the accused has committed

the actus reus, it is necessary to determine if they caused some pro-

hibited result. Causation is def‌ined broad ly 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 tre atment or the victim’s “thin skull,”

2 The Supreme Court has he ld that it is an error of law for the tr ial judge to

instruct t he jury that they must f‌ind a n unlawful act. Rv Gunning, 2005 SCC 27

at paras 30 –31 [Gunning].

The Prohibited Act, or Actus Reus 99

contributed to the death. This approach f‌its into the trend towards

expansive def‌init ions of the criminal act.

The criminal law has traditionally been reluctant to punish an

omission or a failure to act, but some criminal and regulatory oences

punish people for failing to act or to fulf‌ill s pecif‌ic legal duties. The

Criminal Code tends to impos e dut ies on specif‌ic groups of persons such

as parents and guardians and not the public at large. For example, it is

an oence for parents and guardia ns to omit or fail to provide children

with the necessities of life,3 but it is not a crime for a person not to take

reasonable steps to help a stranger in per il.

Finally, this chapter wil l examine how the actus reus or p rohibited act

as initially en acted by the legislature and then interpreted by the courts

has important policy components. For example, in 1983 the oence of

rape, which was def‌ined as non-consen sual sexual intercourse by a man

with a woman who was not his wife, was replaced with the broader,

gender-neutral oence of sexual assault that applied to all persons. In

1992 the law of sexual assault wa s again changed, with Parliament def‌in-

ing consent and stating spe cif‌ic instances in which consent did not exist.

The Supreme Court subsequently decided that for purposes of determ in-

ing the actus reus, con sent should be b ased on the subjective views of the

complainant. In 2018, Parliament returned to the def‌inition of the actus

reus of sexual assault. Amend ments to the Code provided that no consent

is obtained if the complainant is unconscious or otherwi se incapable of

consenting and that consent must be present at the time of the sexual

activity and th at it must b e armatively and actively expresse d by words

or conduct. They also stated that a number of situations where consent

is claimed are quest ions of l aw,4 thus making clear t hat section 19 of t he

Code prohibiting ignorance or mistakes of law applied.

Courts also contr ibute to the policies that inform dierent def‌initions

of the actus reus. Examples include the Supreme Court’s decision that

consent for the purpose of assault w ill be nullif‌ied or vitiated for rea-

sons of public policy when serious bodily ha rm is intended and caused.5

This ruling had t he eect of turning some consensual f‌ist f‌ights into

assaults. Final ly, the broad nature of many of the prohibited acts in the

Criminal Code6 requires t he judge to distinguish at sentencing among

the relative culpability of var ious levels of participation in crimes.

3 Criminal Code, RSC 1985, c C-46, s 215 [Code].

4 SC 2018 c 29, ss 19–20.

5 R v Jobidon, [1991] 2 SCR 714 [Jobidon]; R v Paice, [2005] 1 SCR 339 [Paice].

6 Including the provision s governing liability a s a party or accomplice to an

oence and prohibitin g attempts to commit crimes. S ee Chapter 4.