View source for Actus Reus and Mens Rea

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==General Principles==
{{seealso|Standard of Proof}}
In a criminal trial, the Crown will present evidence that will tend to establish the offence for which the accused is charged.<ref>
see more at [[Role of the Crown]]<br>
</ref> 
Each offence in the Criminal Code is broken down into "elements" that are to be proven.<ref>
sometimes referred to as the ''corpus delicti'' ("body of the offence")<br>
</ref>
Each element that is considered "essential" must be [[Standard of Proof|proven beyond a reasonable doubt]] before a judge can return a guilty verdict.<ref>
{{CanLIIRP|Graham|1xtzl|1972 CanLII 172 (SCC)|, [1974] SCR 206}}{{Plurality}}
</ref>

The elements of a particular offence are derived from the explicit wording of the offence and are implied by the judicial interpretation of the offence.

For a list of elements of major offences, see [[Offences by Category]]. 

; ''Actus Reus'' and ''Mens Rea''
Common with all criminal offences in Canada are the basic requirements that the Crown must prove there was an action or omission (known as the "''actus reus''") and that there was a simultaneous criminal intent (known as the "''mens rea''") within particular circumstance.<ref>
{{CanLIIR|Gillis|fwj9s|2013 NBPC 3 (CanLII)}}{{perNBPC|Lampert J}}{{atL|fwj9s|84}}<br>
{{CanLIIR|Butt|fs0hd|2012 CM 3006 (CanLII)}}, ''per'' d'Auteuil{{atL|fs0hd|29}}<br>
</ref> 

What constitutes a ''actus reus'' and ''mens rea'' depends on the offence itself which is defined by federal legislation. <ref>
Section 8 of Criminal Code prohibits common law offences
</ref>For example, a drug possession charge requires proving ''mens rea'' by establishing that the accused had knowledge of the presence of the substance on their person. An assault, however, requires proving ''mens rea'' by establishing an intention to apply force.

In a trial situation, it is fundamental that the Crown must prove the elements of the particularized charge as they are the charge and not simply the abstract definition of the offence as found in the Code.<ref>
{{CanLIIR|Saunders|1fsvd|1990 CanLII 1131 (CanLII)}}{{perSCC|McLachlin J}}{{atL|1fsvd|5}} ("It is a fundamental principle of criminal law that the offence, as particularized in the charge, must be proved.")
</ref>

There are more static elements that need to be proven, such as the identity of the accused as the person subject to the offence, jurisdiction of the court over the person accused, and the timing of the offence.  Identity can sometimes be a non-trivial issue where the accused was not caught in the act. Courts are very wary of wrongful convictions based on identity. <ref>
see [[Identity]]<br>
</ref>
The jurisdiction and time elements simply establish that the court is able to adjudicate the matter. Judges cannot concern themselves of offences outside of the province or offences without any specific time period.<ref>
see also [[Time and Place]]<br>
</ref>

; Defences
Where defences are concerned, the Crown has no obligation to disprove them unless the evidence provides an "air of reality" to the availability of a defence.

{{reflist|2}}

==Simultaneous Principle==
The "simultaneous principle" requires that there be "an intersection of the act and fault requirements of the criminal offence in question". <ref>
{{CanLIIR|McCague|1nj8q|2006 ONCJ 208 (CanLII)}}{{perONCJ|Trotter J}}
</ref>

This "simultaneous principle" is not to be applied strictly. For example, it is not necessary that the ''mens rea'' form "at the inception of the actus reus".<ref>
{{CanLIIRP|Cooper|1fs5v|1993 CanLII 147 (SCC)|, [1993] 1 SCR 146}}{{perSCC|Cory J}}</ref>
There only needs to be some overlap at some moment in time.<ref>
{{ibid1|Cooper}} ("There is, then, the classic rule that at some point the ''actus reus'' and the mens reas or intent must coincide")</ref>
Accordingly, an act may start off innocent and then become the basis of criminal liability once the ''mens rea'' is formed during the act.

For the purpose of considering the simultaneous principle, a series of acts may be considered a continuous transaction.<ref>
{{ibid1|Cooper}}<br>
see also {{CanLIIRP|Paré|1ftl2|1987 CanLII 1 (SCC)|, [1987] 2 SCR 618}}{{perSCC|Wilson J}}
</ref>

{{reflist|2}}

==''Actus Reus''==
The ''actus reus'' concerns the "external elements" of the offence.<ref>
{{CanLIIR|Leech|2bhh6|1972 CanLII 242 (AB QB)}}{{perABQB|Macdonald J}}{{atL|2bhh6|18}} ("actus reus means all the external ingredients of the crime") citing Williams, Criminal Law, 2nd ed
</ref>
It is an act or omission of the accused that is required for proof of the offence.<ref>
see numerous references to "act or omission" within the code, referring to all "external ingredients" of the offence at issue
</ref>

Criminal law only punishes those acts which are conscious and voluntary.<ref>
{{CanLIIR|Mathisen|21dw7|2008 ONCA 747 (CanLII)}}{{perONCA|Laskin JA}}<br>
</ref>

; Voluntariness
Fundamental to criminal liability is that the criminal act be voluntary as it reflects respect for a person's autonomy and only punishes those who have the capacity to conform with the law.<ref>
{{CanLIIR|Luedecke|217d9|2008 ONCA 716 (CanLII)}}{{perONCA|Doherty JA}}{{atL|217d9|56}}</ref>
All actions are presumed to be voluntary.<ref>
{{CanLIIR|Stone|1fqn2|1999 CanLII 688 (CanLII)}}{{perSCC|Bastarache J}}{{atL|1fqn2|171}}</ref>

Reflexive actions of accused can be considered involuntary.<ref>
{{CanLIIRP|Pirozzi|g9h6x|1987 CanLII 6810 (ON CA)| (1987), 34 CCC (3d) 376 (Ont. C.A.)}}{{TheCourtONCA}}<br>
{{CanLIIRP|Mullin|1npps|1990 CanLII 2598 (PE SCAD)|, (1990), 56 CCC (3d) 476 (P.E.I.C.A.)}}{{perPEICA|Carruthers CJ}}<br>
{{CanLIIRP|Wolfe|htwp8|1974 CanLII 1643 (ON CA)|, (1974) 20 CCC (2d) 382 (Ont. C.A.)}}{{perONCA|Gale CJ}}: accused hits victim on head with telephone by reflex<br>
</ref>

; Omissions
An omission can make out an ''actus reus'' where there is a [[Duty of Care|legal duty]] to act.<ref>
see [[Duty of Care]]
</ref>

{{reflist|2}}

==Circumstances of the Act or Omission==
Certain offences only criminalize acts that occur only within certain circumstances. Where the circumstances in which the conduct takes place are an essential element to the offence these are referred to as the "attendant circumstances" or "external circumstances".<ref>
e.g. {{CanLIIRP|United States of America v Dynar|1fr0t|1997 CanLII 359 (SCC)|, [1997] 2 SCR 462}}{{perSCC|Iaccobucci J.}} uses the term "attendant circumstances"
</ref>

A typical example of external circumstances is the required proof of lack of consent in assault-based offences such as sexual assault.<ref>
see [[Consent in Sexual Offences]]
</ref>

{{reflist|2}}
==Consequences of the Act or Omission==
{{seealso|Causation}}
The code definition of the Offence will sometimes describe necessary consequences that must arise for the Offence to be complete.
This requires the crown to prove that the consequence occurred and that the consequence was caused by the Accused's conduct.

{{reflist|2}}

==''Mens Rea''==
An offence cannot be complete without proof of the requisite blameworthy state of mind, also known as the "mens rea" of the offence.<ref>
{{CanLIIR|Butt|fs0hd|2012 CM 3006 (CanLII)}}, ''per'' d'Auteuil {{atL|fs0hd|29}}
</ref>

The requirement is not one that is fixed but will depend on the specifics of the offence.

It can be either on an "objective" or "subjective" standard. 

The ''mens rea'' will apply not simply to the level of intention behind the accused's conduct but will also apply to their level of knowledge, depending on the offence. The subject of the knowledge will be either the knowledge of the circumstances in which the conduct occurs or knowledge of the consequences that result from the conduct.<ref>
{{ibid1|Butt}}{{atL|fs0hd|29}}<br>
</ref>

There are several available ''mens rea'' standards including negligence, knowledge, wilfulness, recklessness, general intent or specific intent.  

The standard applicable for a given offence will be set by the wording and interpretation of the legislation.<ref>
{{ibid1|Butt}}{{atL|fs0hd|29}}<br>
</ref>

The ''mens rea'' required for an offence will be applied to three types of elements. Elements of conduct, circumstances, and consequence. The elements of conduct refers to the ''actus reus'' of the offence. 

The ''mens rea'' does not require that the accused be aware that what they are doing is a crime. The maxim that "ignorance of the law is no excuse" exempts any requirement of such awareness.<ref>
see s. 19 of the Criminal Code<br>
see also [[Defences]] for "ignorance of the law" principle<br>
</ref>

The ''mens rea'' does not include the proof of any "motive" for the commission of the offence.<ref>
{{supra1|Butt}}{{atL|fs0hd|29}}<br>
</ref>
But aspects such as motive will go towards the overall moral blameworthiness of the offence which in turn affects the penalty to be imposed.<ref>
{{CanLIIRP|Bernard|1ft9w|1988 CanLII 22 (SCC)|, [1988] 2 SCR 833}}{{Plurality}}{{atL|1ft9w|78}} ("those generally more serious offences where the ''mens rea'' must involve not only the intentional performance of the ''actus reus'' but, as well, the formation of further ulterior motives..."
</ref>

; Minimum Constitutional Level of Mens Rea

The [[Principles of Fundamental Justice|principles of fundamental justice]] within s. 7 of the Charter "require proof of a subjective ''mens rea'' with respect to the prohibited act".<ref>
{{CanLIIR|Vaillancourt|1fthw|1987 CanLII 2 (CanLII)}}{{perSCC|Lamer J}}{{Atp|653}}
</ref>
This because it is not appropriate for criminal law to punish the "morally innocent".<ref>
{{ibid1|Vaillancourt}}{{atp|653}}<br>
</ref>

{{reflist|2}}

==Included Offences==
{{seealso|Lesser Included Offences}}