1a. Actus Reus

Summary of law on Actus Reus #

General points on actus reus: #

The actus reus can be defined as “a physically voluntary act or omission.”

For an offence to be committed, the actus reus and mens rea must be concurrent—on the principle that if not, courts would punish either conduct without fault or guilty intent not expressed in guilty action.

The actus reus of an offence must be carried out voluntarily and can include the failure to act.

The principle of legality requires that the actus reus for a criminal offence is set out in an offence (enacted and published) at the time it was committed, and that the definition of the offence not be overbroad or vague. (The principle is partially entrenched in 11(g) of the Charter.)

The Principle of Concurrency: #

As a general principle, the actus reus and mens rea must concur. (Fagan, Cooper)

They need not be “completely concurrent” throughout the commission of an offence but must coincide “at some point.” (Cooper)

Courts may take an expansive view of when the actus reus is completed: a “series of acts [or omissions] may form part of the same transaction.” (Cooper)

An act (or an omission) carried out unintentionally at first can be “adopted” by a later decision not to act to rectify it. If an act is continuous, a person’s adoption of an earlier omission or unintentional act will constitute a concurrence of the actus reus and mens rea. (Miller)

Voluntariness: #

The actus reus must be committed voluntarily. (Kilbride, King)

Voluntariness entails “conscious control of action” or action that is the “product of conscious choice.” This is premised on the belief that it would be unfair and unjust to punish persons for conduct they did not choose or could not physically control. (Kilbride, King)

At common law, “a person is presumed to have intended the natural and probable consequences of their actions.” Thus, where an accused carries out a basic act, forming one or more elements of the actus reus—for example, pushing or punching another person—he or she is presumed to have acted voluntarily. (Bernard, Daviault)

An accused may raise a doubt about whether she acted voluntarily by adducing evidence that, at the time of the offence, she was affected by mental or physical disorders or conditions, including sleepwalking, concussion, delirium, epileptic seizure, or involuntary intoxication.

The concept of voluntariness in Canadian criminal law refers to choice and control over physical actions. In Ruzic, the SCC recognized that acts carried out under necessity or duress are “morally involuntary.” The Court in Ruzic and Hibbert also held that, in contrast to physical involuntariness, moral involuntariness does not negate the actus reus or the mens rea. It may, however, excuse the acts (if the elements of the defence of necessity or duress are made out), thus resulting in an acquittal.

Omissions: #

A failure to act can form the basis of criminal liability only where the failure constitutes the breach of a legal duty to act.

There is no general legal duty in Canadian criminal law to be a good Samaritan: i.e., to assist someone in distress, or prevent a crime from occurring or continuing—even when one can do so easily and without risk or disadvantage.

A number of Code provisions criminalize omissions on the basis of duties set out in the offence provision itself—for example, section 129(b): failing to assist a police officer when requested, or section 252(1): failing to stop, give ID, and render assistance after being involved in an accident.

Other offence provisions include as part of the actus reus the breach of a legal duty set out elsewhere in the law: e.g.,

-s. 180(2) – common nuisance: “Everyone commits a common nuisance who does an unlawful act or fails to discharge a legal duty and thereby (a) endangers lives, safety, health, property or comfort of the public …”

-s. 220 – criminal negligence causing death. This offence draws on the definition of criminal negligence in 219:

(1) Everyone is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, “duty” means a duty imposed by law.

The Code itself contains provisions that set out legal duties that can be applied under sections 180 or 219, including:

-s. 216 – setting out a duty of persons to use reasonable care in undertaking acts that may endanger life.

-s. 217 – stating: “Everyone who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be dangerous to life.”

The Ontario Court of Appeal in Thornton held that the legal duty referred to in section 180(2) can be found in either federal or provincial statutes or at common law. It also held that a valid duty in this context is the one set out in Donoghue v. Stevenson to “take reasonable care not to injure one’s neighbour.”

The Ontario Court of Appeal in Brown held that for the purposes of section 217, an “undertaking” requires a commitment to do something that is “clearly made and with binding intent.” The “mere expression of words indicating a willingness to act” will not suffice.

Consequences and Causation: #

General points:

Where the actus reus of an offence includes the element of causation (“dangerous driving causing death”), the Crown must prove causation BARD.

If the accused’s actions are the direct or main cause (i.e., the factual cause), then causation is made out. No need to go further.

But if the accused’s actions are only a contributing cause, the court must consider whether those actions are the ‘legal cause.’ The test for legal causation is whether the actions of the accused were a “contributing cause beyond the de minimus". (Smithers)

Legal causation refers to a person’s moral responsibility for a prohibited consequence where his or her acts were a significant cause but not necessarily the only or main cause. (Smithers, Nette)

The test for legal causation in criminal law was reformulated in Nette: the act at issue must be “a significant contributing cause.” The majority of the SCC in Nette held that this was a preferable way of formulating the same (or equally acceptable) test set out earlier in Smithers (“a contributing cause beyond the de minimus").

Legal and factual causes may be distinct, with the accused’s acts forming only one of two or more operative causes. (Smithers, Harbottle)

The accused’s conduct therefore need not be the “sole cause,” the “main cause,” or even a “substantial cause” in order to be the legal cause. (Smithers)

Intervening acts

An intervening act may interrupt the causal chain between the accused and the harm inflicted, raising a reasonable doubt about whether the accused’s original act was a ‘significant contributing cause.’ (Harbottle, Maybin)

The SCC in Maybin held that courts may consider one or both of two possible ‘lines of inquiry’ to assess whether an intervening act or event severs the causal link between the accused’s actions and the consequence at issue (or raises a doubt about this):

  1. was the event reasonably foreseeable from the act of the accused – not the specific act, but the general nature of it; and/or

  2. was the event a response to the accused’s act or was it an independent, intentional act that overwhelmed the act of the accused?

(The Court also held that the main test remains the one in Smithers/Nette.)

The Smithers/Nette test applies to all offences, including manslaughter and murder, with the exception of ‘constructive’ first-degree murder under sections 231(5) and (6) noted below (or unless the offence provision provides otherwise).

The requirement to establish causation is a principle of fundamental justice under section 7 of the Charter, as part of the broader principle that the morally innocent should not be punished.

The Ontario Court of Appeal has held that the Smithers' de minimus test does not offend fundamental justice by setting too low a threshold for proof of causation, given the fact that for more serious crimes such as manslaughter, the Crown must also establish objective foreseeability of a risk of bodily harm that is neither trivial nor transitory. (Cribben)

Causation and murder: #

For the forms of first-degree murder set out in sections 231(5) and (6) (or where similar terms are used), the test for causation is whether the accused’s conduct was “a substantial and integral cause of death”. (Harbottle, Nette)

For all other forms of murder (i.e., first and second degree), the test for causation is the one set out in Smithers/Nette.

© Robert Diab, TRU Law, 2022