Canadian Criminal Law (January 2019) (5) The Actus Reus

A. Acts and Statutory Conditions

The punishable act must be;
● the actions of the accused person;
● committed under the kind of act described in the relevant position
● committed under the circumstances or conditions specified in the offence (ex. Criminal Code)
ie. offence of break and enter s348(1) with intent to commit a criminal offence as a “place” according to the CC.
The Act must be ‘voluntary’ or ‘willed’
● the punishable act must be the willed act of the accused;
o ex. where a person has a seizure and does not ‘will’ their movements, they cannot be held accountable for their actions
of assault.
● It is not fair to call involuntary actions the actions of the accused
o Ex. automatism defence
● Voluntariness of the Act (pp. 123-125)
o Actus reus & required fault elements are distinct
▪ ‘the mens rea of an offence does not encompass all of the mental elements of a crime’ because the ‘actus reus
has its own mental element’, that it must be voluntary (McLachlin J, Théroux)
● examples include; can prevent crown from proving actus reas of dangerous driving
o heart attack
o epileptic seizure
o detached retina
o bee sting
o drug consumption at dentist
● voluntaries is a principle of fundamental justice (s7) which involves a willing mind at liberty to
make a definite choice or decision. People should only be punished if they acted as “autonomous
and freely choosing agents”
▪ Two elements can overlap
● Ex. where a person commits a prohibited act when sleepwalking; the act is not voluntary, and they
did not have the requisite mens rea.
▪ Nb: courts are increasingly willing to consider a lack of voluntary or conscious conduct as something that
prevents the commission of the criminal act. Meaning, lack of voluntariness may be a defence to all criminal
and regulatory offences, regardless of the fault element required.

B. The ‘Act’ of Possession

Possession is broadly defined in s4(3) as including;
● Personal possession;
● Knowingly having something in the actual possession or custody of another person or in another place
● Joint possession;
o Where ‘one or more persons, with the knowledge and consent of the rest, has anything in his custody or possession’
● Must have some measure of control over the objects.

Part of the actus reus can include the element of ‘possession’;

● Demonstrates the divide between actus reus and mens rea can be blurred
● R v York (2005) BCCA (the law of manual possession)
o Y and his partner Shannon leased a warehouse property in Abbotsford to establish a storage and trucking business
o One morning Y received a call from S and she informed Y that there was a ‘bunch of stuff’ in the warehouse, asking Y
if he had put it there
▪ Y responded that he had not put it there
▪ They attended the warehouse and were surprised to see a lot of furniture and lumber – not knowing where it
came from
o They called their friend, Rogers, who said he knew about the goods but refused to disclose where they came from
▪ Y became angry at R, realizing that the goods were stolen
o Y wanted to remove the goods from the property (failing to call the police) and drove them to a nearby street
▪ On his way back he was arrested by the police
o Q; Did Y possess the necessary mens rea for the offence of possession of stolen property?
▪ Possession requires (1) physical handling of the prohibited object; (2) knowledge; and (3) control
o H; Y did NOT have the necessary mens rea for ‘possession’ as there was no proof of dishonesty in moving the goods
and no intention of using them in a prohibited manner.
▪ Y was acquitted of possessing stolen goods
● R v Marshall (1969) [Alberta Supreme Court] –concept of constructive joint possession
o M travelled as a passenger by car from Vancouver to Calgary, 16 years old going on a weekend trip.
▪ In the car M was aware that marijuana was being smoked and M passed the pipe for others to smoke it, he did
not smoke it. M said he had no money and had to get back to school.

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o RCMP stopped the car near Golden, for speeding and requested the car follow them to golden
▪ The car obliged and threw the marijuana out the window as they followed
▪ Only the driver was detained in Golden, as he did not have his licence
o The other boys, including M continued on to Calgary
▪ The boys stopped and retrieved the marijuana and picked up a hitchhiker
o Outside Calgary their car was stopped again;
▪ Police discovered more than 1kg of marijuana, a hooka pipe used for smoking it
▪ The boys were arrested and charged with unlawful possession of marijuana for purposes of trafficking
● Possession defined as (s3)(4)(b))
o ‘where one or two or more persons, with the knowledge and consent of the rest, has
anything in his custody or possession, it shall be deemed to be in the custody and
possession of each and all of them’
o Q; Did M possess the marijuana?
▪ Requirements of knowledge and consent
o H; M had NOT possessed the marijuana, as he has not consented to it being in the car
▪ M had knowledge of the marijuana, but had not consented
● Choosing to continue his trip was not consent to the marijuana being there
● When passing the pipe was not consent; as it was almost a reflex action
● He could not control the persons possessing marijuana, the right to control nor did he consent to its
presence and he did nothing to impede the police. He consented to continue his journey of riding in
the car but does not mean he consented to marijuana.

● R v Terrence (1983) SCC- concept of constructive joint possession

o T was a passenger in a stolen car and was charged with possession
▪ He had accepted an invitation from one of his friends to go for a ride in his brother-in-law’s car
▪ He did not know the car was stolen property
o Q; does the word ‘possession’ in s3(4)(b) import control as an element?
o H; control on the part of the person deemed to be in possession is a constituent and essential element of possession
under s3(4)(b).
▪ Knowledge & consent cannot exist without some measure of control over the subject-matter.
▪ T was not guilty of possession of stolen goods, as he did not have control over the stolen vehicle
● R v Morelli (2010) SCC-possession of electronic date
o M was charged with possession of child pornography
▪ He applied to exclude evidence which had been found on M’s computer pursuant to a search warrant
▪ The search warrant was granted because a technician made observations which raised suspicions that there
may be child pornography on the computer
o H; the search was illegal, as the warrant should not have been granted
▪ The police who drafted the search warrant application incorrectly
▪ Grant analysis;
● Evidence was excluded to protect the administration of justice from disrepute
● A personal computer holds a high expectation of privacy – given the personal details which it may
contain, therefore police MUST maintain a valid search warrant before.
● Nb: In regards to possession s4(3) courts have interpreted a person’s knowledge and consent to require that the person deemed to
be in possession must have a measure of CONTROL over the matter

C. Consent as an Element of the Actus Reus

Consent is a complex idea – articulated in both statute and common law
● Often the absence of consent by the victim is an important actus reus condition that must be present for offences to occur
o Ex. s265(3)
● Consent for actus reus sexual assault;
o Depends on the subjective perceptions of the victims (opposed to external and objective standards of law)
● R v Jobidon (1991) SCC
o Haggart was celebrating his bachelor party
o A fistfight broke out between H and J, outside the hotel bar
▪ H was bigger and trained as a boxer
▪ J landed one punch directly in H’s face
▪ H was knocked unconscious and fell onto the hood of a car
▪ J continued to hit him in the face
● Claiming that he did not know H was unconscious
▪ J killed H
o Q; is the absence of consent a material element that must be proved by the Crown in all cases of assault?

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▪ J argued that assault was not present, as both parties consented to the fight and assault requires a lack of
consent
o H; a person cannot consent to death or violent for that is unreasonable conduct in the circumstances.
▪ Assault must be interpreted in light of the common law
● principle of common law that it would be against public policy to allow fighting with the intention
to cause bodily harm to be legal
▪ even if a person consents to a fight, they cannot consent to the other person using excessive force to kill them.
● R v JA (2011) SCC
o JA and his long-term partner (KD) began having consensual sexual activity together
▪ KD consented to JA choking her as part of the sexual activity
▪ KD lost consciousness for about 3 minutes (she understood this might happen when she consented to being
chocked)
▪ Which KD was unconsciousness, JA tied her up and performed additional sexual acts on her
▪ After KD regained consciousness, the couple resumed having sexual activity
o A few months later, KD complained to the police – saying the activity was not consensual (although she later withdrew
her statement)
o JA was charged with aggravated sexual assault, attempting to render a person unconscious in order to sexually assault
them and breaching a probation order
o Q; does consent, for the purposes of sexual assault, require an active mind during the sexual activity in question?
▪ According to s273.1, Parliament viewed consent as the conscious agreement of the complainant to engage in
every sexual act in the particular encounter.
o H (majority); Parliament intended for a person to have an active mind during sexual activity in question.
▪ Consent in advance is NOT a defence, as a person must be able to withdraw their consent during the sexual
activity in question
▪ This rule only applies to consent in cases of sexual assault
▪ Parliament’s intention can only be overruled with a constitutional challenge
▪ JA was guilty of sexual assault
● R v Mabior (2012) SCC
o M was charged with aggravated sexual assault involving nine complainants
▪ The Crown claimed that M failed to disclose his HIV-positive status to the complainants prior to sexual
activity
▪ No complainant contracted HIV
o M claimed that his duty to disclose his condition did not arise since the risk of transmission was low/negligible at the
time & there was no significant risk of bodily harm to the complainants
o Q; did M have a duty to disclose his HIV status?
o H; M had a duty to disclose and was guilty of aggravated sexual assault
▪ There was ‘a realistic possibility of transmission of HIV’ when he did not wear a condom
▪ Consent was vitiated by his failure to disclose the significant risk of harm and the fact that the partners may
not have consented if they knew of the risk of harm
Roach pg (107-112)
 Sexual assault-consent is a voluntary agreement to engage in the particular sexual activity and that there cannot be consent if:
o a) agreement is given by a third party
o b) the complainant is incapable of consenting
o c) the complainant is induced to participate by abuse of a position of trust, power, and authority
o d) the complainant expresses a lack of agreement, by either words or comments, to engage or continue to engage in
sexual activity

D. Causation
Where a ‘consequence’ must occur in a criminal offence, the Crown must prove that the accused caused that consequence
(blameworthiness) beyond a reasonable doubt;
● If causation is not proved the accused cannot be convicted of an offence that requires his act to produce the consequence
o R v Williams (2003) SCC
▪ W had a sexual affair with the complainant for 18 months
● The couple did not take precautions against pregnancy (W said he had a vasectomy)
▪ W discovered that he was HIV positive on 15/11/1991
● He was counselled as to safe sex practice and told of his duty to disclose the diagnoses to previous
sexual partners.
▪ W failed to tell the complainant about his diagnosis and did not take any precautions to engage in ‘safer’ sex
practices.
▪ The complainant (on her own accord) took an HIV test and tested negative on 20/11/1991.

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▪ She took a further test in 1994 and tested positive, confronted W and he denied that he ever tested positive for
HIV
▪ Medical evidence shows that 70-90% of people infected with HIV produce anti-bodies within the first 6
months of infection – other individuals take a 12-18 months to test positive.
● Thus, as the time the complainant tested negative for HIV in 11/91, she could have been infected
▪ Q; Was the Crown able to prove all the elements of the actus reus of aggravated assault? [endangering the
life of the complainant]
▪ H; Crown was unable to prove that W had endangered the complainant’s life
● The risk was unknown to W (at the time he likely infected her) thus cannot prove beyond a
reasonable doubt
● W was convicted of attempted aggravated sexual assault
o He committed an act that was sufficient to constitute the actus reus of attempts
o Sentenced to 3 years imprisonment and 18 months for common nuisance with sentences
served concurrently.
● Both ‘factual causation’ and legal causation are needed
o R v Nette (2001)
▪ A 95-year-old widow was robbed and left tied in her room (with a ligature around her neck)
● She suffocated to death over a period of 48 hours
▪ N confessed to PO that he had robbed and killed the widow (during an undercover investigation)
● N was charged with first-degree murder
▪ Q; was the proper threshold of causation required for second-degree murder?
▪ H; the Smithers test applies to all forms of homicide. Where Harbottle test applies to all cases of 1st degree
murder.
● RATIO (Concurring: L’Heureux-Dube) when addressing the jury, the standard of causation for
second-degree murder should be positively stated as ‘the action of the accused must have been a
significant contributing cause of death’
● Legal causation is a principle of the ‘thin skull’ rule
o R v Smithers (1978) SCC
▪ S was a black hockey player and members of the opposing team racially insulted him during a game
▪ About 45 minutes after the game S ran up to a player from the other team (Cobby) & punched him in the
head
● C doubled over and S kicked him in the stomach
● C fell to the ground and within 5 minutes appeared to have stopped breathing
● C was dead on arrival at the hospital
o Cause of death was ‘spontaneous aspiration from vomit’ – he choked on his own vomit
o C’s epiglottis malfunctioned, leading to his death
▪ S was convicted of manslaughter
▪ Q; was the kick a sufficient cause of death to attract criminal liability?
● What constitutes a sufficient cause to create criminal liability?
▪ H; the kick was an ‘operating cause outside the de minimus range’ and it caused the death of C
● The kick caused the vomiting and the vomiting caused the death
● The action need be an operating cause outside the de minimus range in order to be deemed
the cause of the prohibited result
● The ‘thin skill rule’ applied in criminal law
o Though the death was, in part, caused by his malfunctioning epiglottis, this did not
relieve S of liability.
● Breaking the chain of causation
o R v Maybin (2012) SCC
▪ In a crowded bar the victim insulted M (touching a pool ball)
▪ A fight broke out in the bar
● M violently punched the victim’s face
● M’s brother helped in the fight
● The bouncer arrived and saw the victim lying face-down on the pool table – he struck him in the
back of the head with considerable force.
▪ The victim died from a brain bleed
● Could not tell which punch caused his death
▪ Q; When an intervening act by another person severs the causal connection between the accused’s act and
the victim’s death, does this absolve the accused of legal responsibility for manslaughter?
● Did M cause the victim’s death by starting the bar fight?
▪ H; M caused the death of the victim.
● It was objectively foreseeable that when M commenced the one-sided fight in a crowded bar there
was a risk of intervention by patrons and the bouncer

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● The unlawful acts of M were a ‘significant contributing cause’
● the bouncer’s act was NOT an intervening act, and did not sever the link between M’s conduct and
the death (was reasonable foreseeable)
o does NOT require objective foreseeability of the precise future of consequences of the
conduct.
Causing Prohibited Consequences (pp.114-121)
● causation is when a person is held responsible for a prohibited consequence
● (a) statutory provisions concerning causation
o Parliament is free to legislate about when a person will be held responsible for ‘causing’ a prohibited act
o causation is defined broadly for homicide offences
▪ ex. ‘causes the death of a human being’ (s222(1))
● (b) General Principles of Causation
o Test in Smithers it consistent with the principles of fundamental justice (s7)
▪ Test framed in the negative as ‘not insignificant’ and ‘not a trivial cause’
o Nette – evaluated the Smithers test in homicide cases (that is, murder, manslaughter and infanticide)
▪ Preferred the words; ‘significant contributing cause’
● Framed it the positive
● The current way the test is framed
o Must be established beyond a reasonable doubt
o Thin-skull rule: Justice Dickson says one who assaults another must take his victim as he finds him.
● (c) Concurrent Causes and New Acts that Sever the Chain of Causation
o where a chain of events is set off by an accused, ending in a person’s death the test remains whether the accused’s
actions were a significant cause of death (Maybin)
▪ analytical tools to determine whether an intervening act could break the chain of causation;
● reasonable foreseeability
● independence from the accused’s actions
▪ The accused actions does not have to be the sole cause of death, but where the chain of causation is broken,
when the actions of the accused are no longer the ‘significant contributing cause’ of the death ie. accused not
responsible if they assault a victim, live them unconscious but the victim was then killed by a
subsequent/independent fire or building collapse. However, even if did not cause the prohibited result, would
still constitute an attempt and will be charged for attempted.
● (d) Causation in non-homicide cases
o Examples;
▪ attempts – require some action towards the offence that is ‘beyond mere preparation’
▪ impaired driving causing death or bodily harm – must prove the accused’s impairment was a contributing
cause outside the de minimus range (cannot rely solely on the fact that they were impaired)
o legal causation versus factual causation
▪ factual causation = ‘but for’ test
▪ legal causation = whether the accused should be held criminally responsible for the prohibited consequences
● Williams
o W was acquitted of aggravated assault
▪ Possible that she became infected when W was unaware that he was HIV
positive
o Demonstrates the concurrence needed between the actus reus and mens rea when accused
had required fault element of knowingly risking HIV transmission, he could not commit
the actus reus because the woman was already infected thus acquitted on reasonable
doubt.
● (e) Attempts and Accomplice Liability as Alternative Forms of Liability in Cases of Reasonable Doubt about factual
Causation
o alternatives where there are doubts about whether the accused caused the prohibited consequences
o accomplice liability can be used where there are doubts about who actually killed the victim but it is clear that
particular person assisted or helped with the killing.

E. Omissions
Certain offences do not require a positive act by the accused;
● The offences can be committed by showing that the accused failed to act
o Question of construction by Parliament
● To be guilty of an omission;
o (a) the offence must contemplate guilt for omissions or

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o (b) the accused must be placed under a legal duty to act (either by the provision or by some incorporated provision) and
they omitted to fulfill that legal duty
● R v Peterson (2005) Ontario Court of Appeal
o P (84 years old) resided in the same building as his children and grandchildren (doors between their apartments were
locked)
▪ His living quarters were not sanitary, not a working kitchen or toilet, apartments full of cockroaches, floor
covered in dog feces
▪ He was showing early signs of dementia
▪ Rarely bathed, and clothes never washed, was incontinent (in terms of urine)
▪ Police saw father lost on street, and advised son of community agencies that could care for him but none were
contacted.
o P’s son (Dennis) was under a lawful duty to provide the necessaries of life to his father;
▪ (a) P was a person under D’s charge
▪ (b) P was unable by reason of age, illness, mental disorder to withdraw himself from that charge and
● P was too old, senile and feeble
▪ (c) unable to provide himself with the necessaries of life
● inability to prepare food, lack of food in P’s apartment
● lack of facilities to wash or go to the bathroom
o H; D was under a legal duty to provide the necessaries of life to his father and failed to adhere to that duty. He was
sentenced to 6 months imprisonment, 2 years probation and 100 community hours
● R v Browne (1997) Ontario Court of Appeal
o B was charged with criminal negligence causing the death of another drug dealer
▪ B failed to take her to the hospital after she swallowed a bag of crack to avoid detection by police
● B was aware that she had ingested
▪ B waited until her symptoms were worse and called a taxi (not 911)
● While at the hospital, B failed to inform the nurses that she had ingested the illegal substance
o Q; did B have a legal duty arising from an ‘undertaking’ within the meaning of s217?
▪ ‘everyone one who undertakes to do an act is under a legal duty to do it if an omission to do the act s or may
be dangerous to life’ (s217)
▪ B could only be charged with manslaughter, criminal negligence if he ‘omitted to do anything that is in his
duty to do’ (s219)
o H; B did NOT clearly make an undertaking of a binding commitment & he therefore had no legal duty (was not
criminally negligent)
▪ To find a legal duty, there must be an undertaking
● Undertaking is nothing short of a binding commitment. An undertaking cannot be implied, it
MUST be CLEARLY made, with binding intent, most likely with someone relying on it.
▪ Here, B had not made an undertaking of binding commitment (even when he said ‘I’ll take you to the
hospital’)
● Omissions (pp. 121-123)
o Omissions are generally only form the actus reus of a criminal offence when the accused had a specific legal duty to
act.
▪ Ex. a parent, spouse or guardian had a legal duty to provide the necessaries of life for his or her child, spouse
or charge (s215)
● If the parent/spouse fails to provide the necessaries of life (omits to perform their duty) they can be
convicted of manslaughter (by means of unlawful act or criminal negligence)
▪ Those who undertake to perform an act, have the legal duty to perform the act (s217) [ex. lifeguard]
● Only binding and intentional commitments create a legal undertaking (and expose a person to
criminal liability for failing to do the act) (Browne)
o Mere expression of words is no sufficient to create a duty under s217
● Duty can arise from common law (Miller)-House of Lords held that a person who accidentally set a
house on fire had a duty to take reasonable steps to extinguish the fire or to call the fire department.
o Although this comes very close to creating common law offence (contrary to s9 CC)
▪ Duty to use reasonable care when providing medical treatment to others or other lawful acts that may
endanger the life of others
● Breached when a person donated blood that he knew was infected with HIV (Thornton)
o Justice Dickson wrote a strong dissent in R v Colucci warning “the criminal law is no place within which to introduce
implied duties, unknown to statute and common law, breach of which subjects a person to arrest and punishment.”