B. The Role Of The Actus Reus In Criminal Liability

Author:Kent Roach
Profession:Faculty of Law and Centre of Criminology. University of Toronto

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1) The Coincidence of the Actus Reus and Mens Rea

A traditional principle of criminal law has been that the accused must commit the criminal act at the same time that he or she has the fault element required for the particular crime.109This requirement, sometimes called the simultaneous principle, has frequently been finessed. In Fagan v. Metropolitan Police Commissioner,110the accused accidentally drove his car on a police officer’s foot. After being informed of this fact, the accused switched off the ignition and swore at the officer, before eventually moving the car. The accused was convicted of assaulting a police officer and the conviction upheld on appeal. In his dissent, Bridge J. noted the theoretical dilemma that when the accused committed the initial act of assault, he did not know what he was doing, while when the accused did know that he was assaulting the officer, he did not act. The majority, however, took a more practical approach and held that the actus reus was not complete when the accused first drove onto the officer’s foot, but continued while the force of the car was applied and the accused became aware of his actions. Thus, the mental

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element of knowledge coincided with this expanded definition of the act of assault. An alternative to the continuous act approach would be to hold that the accused, having created a danger by driving onto the officer’s foot, was under a duty to take reasonable steps to rectify the situation.111This would make the failure to act a sufficient criminal act even though it might not technically fit the definition of the crime of assaulting a police officer.

In murder cases, courts have also been prepared to hold the accused guilty if the mental element was present at any point of time during the transaction that culminated in death. In R. v. Meli,112the accused struck the victim with the intent to kill, and then threw him over a cliff. The victim survived those events, but died some time later of exposure. The Privy Council upheld the murder conviction, stating that the accused had formed the intent to kill and it was impossible to divide the transaction that resulted in the victim’s death. In R. v. Cooper,113the Supreme Court of Canada adopted Meli and upheld a murder conviction, on the basis that at some point during two minutes of strangulation the accused formed the intent to kill. The accused need not have had the intent throughout the entire transaction and the possibility that he may have "blacked out" because of intoxication did not excuse so long as the accused had the fault at some time during the strangulation. Cory J. concluded: "It was sufficient that the intent and the act of strangulation coincided at some point. It was not necessary that the requisite intent continue throughout the entire two minutes required to cause the death of the victim."114Another departure from the requirement that the fault element and the prohibited act occur at the same time has been the traditional rule with respect to intoxication for general intent offences such as assault or sexual assault. If the accused was so intoxicated at the time the assault was committed that he did not have the minimal mental element required, then the fault in becoming so intoxicated would be sufficient to convict the person of the general intent offence.115The fault in becoming extremely intoxicated would be formed long before the prohibited act was committed, but would be sufficient. This departure from the simultaneous principle has been held by the Supreme Court to violate sections 7 and 11(d) of the Charter by substituting the fault

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of becoming drunk for the mental element of a general intent offence, when the former does not lead inexorably to the latter.116Parliament has, however, responded by deeming the fault of becoming extremely intoxicated to be sufficient for a conviction of violent offences.117Criminal and regulatory offences based on negligence may also constitute a departure from the principle that fault occurs at the same time as the prohibited act. An accused can be found to be negligent for failing to take precautionary measures long before the prohibited act was committed. For example, an oil tanker may spill its content and the shipping company be negligent because the tanker was not inspected and repaired the last time it was in harbour. The purpose of regulatory and negligence-based offences, of course, is to prevent harm before it occurs, and some departure from the simultaneous principle may be necessary to achieve this end.

2) Causing Prohibited Consequences

When the criminal act prohibits a consequence or a result, it is necessary to determine if the accused’s actions have actually caused the prohibited consequence or result. Canadian criminal law does not take an overly strict approach to causation and allows a person to be held liable for causing consequences even if the consequences are caused in part by the victim’s peculiar and perhaps unforeseeable vulnerabilities. This is often called the "thin skull" rule, or the principle that accused take their victims as they find them. In addition, it is not necessary that the accused’s acts be the sole operative cause of the prohibited consequences. This fits into the general trend towards expansive definitions of the criminal act but may have some harsh results in particular cases. The unanticipated harm caused by actions may be a mitigating factor in sentencing, particularly in manslaughter, which has no minimum penalty.

a) Statutory Provisions Concerning Causation

Parliament remains free to impose its own statutory rules to define the test for when a person will be held responsible for causing a prohibited consequence or result as part of its ability to define the prohibited act. As will be examined in greater detail in chapter 10, Parliament has generally defined causation broadly for the purpose of homicide offences. For example, section 222(1) provides that a person commits homicide when, directly or indirectly, by any means, he or she causes the death

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of a human being. This is a broad definition that has been satisfied in a case where an accused abducted a child who subsequently died of hypothermia when left in a car.118There are also specific and more restrictive causation rules under the first-degree murder provisions in section 231(5) that require that the death be caused while the accused is committing or attempting to commit a list of enumerated offences, including sexual assault, kidnapping, and hostage-taking.119Finally, Parliament has enacted specific causation rules in sections 224 to 226 of the Criminal Code to deal with certain issues of remoteness between the accused’s actions and the victim’s actual death and some intervening causes such as treatment. The Supreme Court has Court noted that "ss. 224 and 225 of the Criminal Code provide that the chain of causation is not broken if death could otherwise have been prevented by resorting to proper means (s. 224), or if the immediate cause of death is proper or improper treatment that is applied in good faith (s. 225)."120

b) General Principles of Causation

The Criminal Code does not comprehensively codify all causation issues. As the Supreme Court has stated, "[w]here the factual situation does not fall within one of the statutory rules of causation in the Code, the common law general principles of criminal law apply to resolve any causation issues that may arise."121In R. v. Smithers,122the Supreme Court upheld a manslaughter conviction on the basis that the accused’s action of kicking the deceased in the stomach "was at least a contributing cause of death, outside the de minimis range," even though the death was in part caused by the victim’s malfunctioning epiglottis, which caused him to choke to death on his own vomit. Dickson J. upheld the applicability of the thin skull principle in the criminal law of homicide by stating:

Death may have been unexpected, and the physical reactions of the victim unforeseen, but that does not relieve the [accused] . . . .

It is a well-recognized principle that one who assaults another must take his victim as he finds him.123

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One Court of Appeal has stated that the contributing cause and thin skull principles set out in Smithers establish "a test of sweeping accountability" for causing death that might be vulnerable to challenge under section 7 of the Charter as infringing the principles of fundamental justice.124Nevertheless, the Smithers approach to causation in homicide cases has survived under the Charter. In R. v. Cribbin,125the Ontario Court of Appeal concluded that the de minimis causation test and thin skull principles approved in Smithers and Creighton are consistent with the principles of fundamental justice that forbid the punishment of the morally innocent. Arbour J.A. stated that the requirement for proof of fault in addition to the criminal act removed any risk that the broad causation test would punish the morally innocent.126A manslaughter conviction was upheld in Cribbin because the accused’s assault had contributed to the victim’s death, even though the victim had been subject to more serious assaults by another person and had died because he drowned in his own blood.

In R. v. Nette,127the Supreme Court revisited Smithers. Although the Court did not overrule Smithers, it reformulated and arguably elevated the test for causation in homicide cases...

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