Actus Reus
Actus reus is the Latin term Canadian courts use for the physical element of a criminal offence — what the accused actually did (or, in some cases, failed to do). Combined with mens rea, it forms one of the two essential ingredients of nearly every offence in the Criminal Code of Canada.
The actus reus of any given offence is described in the section that creates it. For theft under section 322, it is taking or converting another person's property. For assault under section 265, it is the intentional application of force without consent. For fraud under section 380, it is using deceit or other dishonest means to deprive another of property. The Crown must prove the prohibited conduct beyond a reasonable doubt.
Actus reus must also be voluntary. A reflexive movement, an action while sleepwalking, or conduct compelled by an external force does not satisfy the requirement. This is the foundation of the defences of automatism and necessity.
To understand how actus reus and mens rea interact in practice, our blog explores the basic elements of Canadian criminal law.
Acts, omissions, and circumstances
Actus reus is not always an action. Some offences criminalize an omission — a failure to act where the law imposes a duty. Failing to provide the necessaries of life to a dependant (section 215) is one example. Other offences require a particular state of affairs (a person under 16, a vehicle on a highway, a substance on the CDSA schedules). Some require a specific consequence — bodily harm, death, deprivation of property.
Where actus reus is contested
Most criminal trials turn on whether the Crown can prove every element of the offence. In drug possession cases, for example, the actus reus requires not just physical proximity to the substance, but knowledge and control. Mere presence near the drugs is not enough. In trafficking, the actus reus is selling, administering, giving, transporting, or delivering — or offering to do so. The exact conduct on which the charge rests can be the entire battleground at trial.
Building a defence
Our criminal defence lawyers examine every charged conduct element against the available evidence. Sometimes the act itself is in dispute ("that wasn't me"). Sometimes the legal characterization of the act is in dispute ("that conduct doesn't meet the statutory definition"). Sometimes voluntariness is in dispute. Each angle creates a distinct path to acquittal.
Related glossary terms
