Actus reus (culpable act)

Actus reus (culpable act)

Components of the Actus reus

2) act or omission

3) sometimes in certain proscribed circumstances

4) sometimes causing certain consequences.

The actus reus must be “physically” voluntary

Voluntariness is a requirement of the actus reus, separate from the mens rea. It concerns not the accused state of mind, but merely whether the accused had, under the circumstances, free will.

Examples:

In Killbride, NZ, 1962 (312), the case failed for lack of voluntariness because the accused’s “warrant of fitness” inexplicably disappeared from his car while it was parked downtown. The accused could not be convicted for missing the warrant because he played no part in its disappearance; no other option was open to him.

In King, SCC, 1962 (314), the case failed for lack of voluntariness because the accused had not heard his dentist’s warning concerning the effects of the anesthetics administered, and therefore had no way of knowing that, when he began driving, he was driving under the influence.

Criminalizing Omissions

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  CML jurisdictions are generally reluctant to impose positive legal duties. Thus, the starting point is that the criminal law will not punish omissions. There are, however, exceptions to this rule.
  
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  Specific Omission Offences: CC provisions that impose a duty and then punish for failure to discharge it (e.g. CC 50(1)(b) [omitting to prevent treason], 129(b) [omitting to assist a peace officer], 252(1) [failure to stop at the scene of an accident]).
  
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  General Omission Offences: CC provisions which impose a penalty for “failure to discharge a duty” but fail to specify the duty. – common nuisance (CC 180) and Criminal negligence (CC 219-21). Here, the relevant duties are:
  
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  Found in the criminal code
  
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  215 [duty to provide necessaries], 216 [duty of care in medical treatment] (Thornton, per SCC), 217.1 [duty of supervisors]
  
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  217 [duty to uphold undertakings]: An undertaking for the purposes of s 217 must be in the nature of a commitment, clearly made, and with binding intent. Relationship between the parties is irrelevant. (R v Brown)
  
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  Because of CML’s general reluctance to impose positive duties, courts will interpret these duties narrowly. Abella’s treatment of 217 in R v Brown illustrates this.
  
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  Found in statute
  
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  Including provincial statute, so in Quebec: the duty to rescue (QC Charter art 2). Does this place a criminal law power in provincial hands?
  
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  Found at CML – this is controversial.
  
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  “Duty imposed by law” (s 219(2)) and “legal duty” (s 180(2)) are identical in meaning. They both include duties imposed by statute or at CML (Thorton, ONCA – not affirmed by SCC).
  
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  Effectively criminalizing omissions through the interpretation of CC offences that do not explicitly do so.
  
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  In Mabior, the court arguably criminalised an omission – the omission of failure to disclose one’s HIV status. Of course, the court characterised what it did as the criminalisation of an action – the criminalisation of fraud, but this is all a matter of perspective.
  

Contemporaneity

Although the actus reus and mens rea must coincide, they don’t have to be completely concurrent. Where a series of acts form part of the same transaction, it is sufficient if the requisite intent coincides at any time with the an element of the transaction (Cooper)

e.g. series of blows with a baseball bat, beating someone then throwing them off a cliff (even if death was after the fact due to exposure), etc. (Cooper)

An act that is innocent at the outset can become criminal at a later stage when the accused acquires knowledge of the nature of the act and still refuses to change his course of action (Cooper). The mans rea is effectively “superimposed” on the existing actus reus which is continuing (Fagan).

These statements reflect what the HoL in Miller called the “continuing act theory” (Miller)

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  The “duty theory” provides an alternative way to address the problem of contemporaneity: an unintentional act followed by an intentional omission to rectify that act or its consequences can be regarded, as a whole, as an intentional act (Miller).
  

Courts have interpreted contemporaneity loosely, requiring only some overlap between the actus reus and mens rea. Thus, cases seldom fail for lack of contemporaneity (Fagan, Miller, Cooper). In peculiar fact situations however, contemporaneity can cause issues (R v Williams)

Fagan, UKQB, 1969 (302) FACTS: F accidentally drove onto a police officer’s foot, temporarily refused to drive off of, finally agreed to drive off of it and did so. ISSUE: Was there contemporaneity such that F is guilty of assault (now CC 265) (Yes) The mans rea was superimposed onto the actus reus, an existing act that was continuing.

R v Miller, UK 1982 then UKHoL 1983 (305) FACTS: Miller, a squatter, lit a cigarette and fell asleep. When he awoke the room was on fire. He got up and went to another room to continue sleeping. The house burned down, he was rescued. ISSUE: was there contemporaneity such that M is guilty of arson (now CC 433 et seq) (yes). The unintentional act followed by an intentional omission to rectify the act amounted to actus reus.

R v Cooper, SCC, 1993 (307) FACTS: C became angry with the victim, grabbed her by the throat with both hands and shook her. The next thing he remembers is that he was in his car with the victim’s dead body beside him. ISSUE: Did C murder (CC 229(a)(ii) the victim? Was it enough that he formed the intent to cause the victim bodily harm that he knew was likely to cause her death, even if he was not aware of what he was doing at the moment she actually died? (Yes)

R v Williams, SCC, 2003 FACTS: W had consensual sex with the victim for 5 months, then learned he was HIV+, then continued to have (still apparently consensual) sex with the victim for a year. The victim contracted HIV. ISSUE: was there contemporaneity such that W was guilty of aggravated (CC 268(1)) assault (CC 268(1))? (no) Failure to disclose information (such has HIV+ status) that changes the nature and quality of an act vitiates consent (interpretation) For the first 5 months, there was endangerment (actus reus) but no intent (mans rea). For the last 12 months there was intent (mans rea) but it is not clear beyond a reasonable doubt that there was endangerment (actus reus). Thus, there was not contemporaneity.

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