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Elements of the Offence: Actus Reus
Cory Wilson is a criminal defence lawyer serving Calgary, Okotoks, Airdrie, Strathmore, Cochrane, Canmore, Didsbury, Medicine Hat, Lethbridge, Grand Prairie and Turner Valley.
In Canada, to be found guilty of a criminal offence, the Crown must prove, among other things, that the accused committed the guilty act, and that the accused intended to commit the guilty act. In criminal law, the guilty act is called actus reus, while the intention to commit the guilty act is called mens rea. Actus reus and mens rea are commonly referred to as elements of the offence or ingredients of the offence.
This blog post focuses on actus reus – the “guilty act.” Actus reus can be an act or an omission.
An Act
Actus reus considers all the external elements of the crime. Another way to think of this is that the actus reus considers what an individual can discern from the world around him.
For example, the offence of assault. Section 265 of the Criminal Code states as follows:
265 (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
Application
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
Consent
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
Accused’s belief as to consent
(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.
The actus reus of assault occurs when the following external elements are present: (i) the directly or indirect application of force to another person, and (ii) the person that had force applied to them did not consent to the application of force.
A classic example of direct force is where one individual punches another individual. An example of indirect force would be where an individual applies force through an object. For example, in the Alberta Court of Appeal case, R v. Fleury, the court found that yanking on a woman’s purse constituted the indirect application of force.
The other element of the actus reus of assault is consent. Specifically, the consent of the individual that is having force applied to them. Consent may seem like an element that belongs in mens rea as consent is concerned about the complainant’s mental state and does not appear to be “external.” However, consent has two components, an actus reus component and a mens rea component (the mens rea of consent will be discussed in a subsequent blog post).
The actus reus of consent is not concerned about the mental state of the accused, it is concerned about the mental state of the individual that is having force applied to them. Whether the individual that is having force applied to them consents to having that force applied is the actus reus of consent. Consenting to the application of force may be external, such as an individual saying “let’s fight!” If the person that is having force applied to them does not consent to having that force applied, the actus reis of consent is made out. Conversely, if consent is present, the actus reus of consent is absent, and no offence can have been committed.
It is important to note that the criminal law does not permit individual to consent to having non-trivial bodily harm inflicted upon them. The Supreme Court of Canada, in R v. Jobidan, said the following about consenting to non-trivial bodily harm:
How, and to what extent is consent limited?
The law’s willingness to vitiate consent on policy grounds is significantly limited. Common law cases restrict the extent to which consent may be nullified; as do the relevant policy considerations. The unique situation under examination in this case, a weaponless fist fight between two adults, provides another important boundary.
The limitation demanded by s. 265 as it applies to the circumstances of this appeal is one which vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl. (This test entails that a minor’s apparent consent to an adult’s intentional application of force in a fight would also be negated.) This is the extent of the limit which the common law requires in the factual circumstances of this appeal. It may be that further limitations will be found to apply in other circumstances. But such limits, if any, are better developed on a case by case basis, so that the unique features of the situation may exert a rational influence on the extent of the limit and on the justification for it.
Stated in this way, the policy of the common law will not affect the validity or effectiveness of freely given consent to participate in rough sporting activities, so long as the intentional applications of force to which one consents are within the customary norms and rules of the game. Unlike fist fights, sporting activities and games usually have a significant social value; they are worthwhile. In this regard the holding of the Saskatchewan Court of Appeal in R. v. Cey, supra, is apposite.
The court’s majority determined that some forms of intentionally applied force will clearly fall within the scope of the rules of the game, and will therefore readily ground a finding of implied consent, to which effect should be given. On the other hand, very violent forms of force which clearly extend beyond the ordinary norms of conduct will not be recognized as legitimate conduct to which one can validly consent.
An Omission
Most criminal offences focus on the actions of an individual. However, a small number of offences impose a duty on an individual. This compels an individual to do a certain action. If the individual does not do the action they are required to do, they may be guilty of a criminal offence.
For example, the offence of criminal negligence causing bodily harm states as follows:
Criminal negligence
219 (1) Every one 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.
Definition of duty
(2) For the purposes of this section, duty means a duty imposed by law.
Causing death by criminal negligence
220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
Section 215 of the Criminal Code states that all parents, foster parents, guardians or head of a family, have a legal duty to provide necessaries of life for a child under the age of sixteen years.
If a parent, has a child under sixteen years of age in her care, if that parent shows wanton or reckless disregard in failing to provide the necessaries of life, and if the child dies, the parent has omitted to discharge her legal duty (to provide the necessaries of life) and thus would have committed the actus reus of criminal negligence causing death.
Causation
Another common actus reus element is causation. Certain offences, like criminal negligence causing death, or assault causing bodily harm, require not only that an individual commit the prohibited act, but that a particular result occur. The accused must cause the result.
The offence of assault causing bodily harm states as follows:
Assault with a weapon or causing bodily harm
267 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who, in committing an assault,
(a) carries, uses or threatens to use a weapon or an imitation thereof,
(b) causes bodily harm to the complainant, or
(c) chokes, suffocates or strangles the complainant.
Pursuant to s. 267(b) if in the process of committing assault you cause bodily harm to the complainant, your are guilty of assault causing bodily harm opposed to common assault. This leads to the question “what is bodily harm?” The Criminal Code defines bodily harm as “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.”
An important difference between the two offences is that assault carries a maximum penalty of five years imprisonment, while assault causing bodily harm carries a maximum penalty of ten years imprisonment.
Conclusion
Actus reus, is the “guilty act.” Actus reus can be an action that a person takes, such as striking an individual or it can be omitting to do something that it is that person’s duty to do, such as failing to provide the necessaries of life. Finally, actus reus can also have a consequence associated with it, such that a person is only guilty of the alleged offence if they caused a particular outcome.
Blog written by Matthew Browne
Cory Wilson is a criminal defence lawyer based in Calgary. If you have been charged with a criminal offence or are a suspect in a criminal investigation, call today for a free, no obligation consultation.