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Criminal - Actus Reus. R. v. Stordy
In R. v. Stordy (Ont CA, 2024) the Court of Appeal considered the 'simultaneity principle', requiring coincidence between actus reus and mens rea:[48] More generally, in Canadian law, the classical approach to fault involves the identification of the act component(s) of the offence (or the actus reus), on one hand, and the corresponding mental element(s) (or the mens rea), on the other. As the Supreme Court held in R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636, at p. 653, this approach to culpability seeks to avoid punishing the morally innocent.
[49] This foundational principle also requires a temporal concurrency between the two elements. This is sometimes referred to as “the simultaneous principle”: see R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146, at pp. 156-158; R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134, at p. 146; R. v. Brown, 2022 SCC 18, 412 C.C.C. (3d) 427, at paras. 106-107; and Don Stuart, Canadian Criminal Law: A Treatise, 8th ed. (Toronto: Thomson Reuters Canada Limited, 2020), at pp. 409-411.
[50] While this manner of organizing the principles of criminal liability has generally proved to be valuable, it has its limits. As Professor Stuart has observed: “The distinction between actus reus and mens rea is only an analytic device”: at p. 409. As the criminal law reaches into new areas of criminal behaviour – and, historically speaking, the offences created by s. 172.1 and 172.2 are relatively recent additions to the Criminal Code – this analytic device may not always be helpful in explaining what the Crown is required to prove in order to establish guilt.
[51] This point is illustrated in Legare, in the context of s. 172.1. Fish J. observed that it is “neither necessary nor particularly helpful for trial judges to recast every element of the offence in terms of its actus reus, or ‘act’ component, and its mens rea, or requisite mental element”: at para. 38. As he said, “[i]t seems to me preferrable, in setting out the elements of s. 172.1, to adopt ‘language which accurately conveys the effect of the law without in itself imposing an unnecessary burden of translation and explanation’”: at para. 40, quoting Howard’s Criminal Law, 5th ed. (1990), p. 11.
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