The Physical Element of Crime May Include a Duty to Act

Generally, there cannot be a crime without a criminal act. This fact is almost always true. The ‘criminal act’ in criminal law is referred to as the actus reus. This Latin phrase translates literally into a “guilty act.” It is an essential element of almost every criminal offence.
It requires a willing mind having the capacity to make a choice and choosing to commit a criminal act.

Therefore, the elements of most crimes require a physical element and a mental element.

The physical element requires only a movement or act on the part of the accused. The mental element has two components, namely, a conscious awareness of the movement or act, and a conscious awareness or desire to achieve the consequences of the act. It is when the two elements combine in the doing of a criminal act that criminal responsibility attaches to the actions of an accused.

The combining of a criminal act with the mental element of wishing to achieve the consequences of the act is the necessary combination to establish both mens rea and actus reus fulfilling the classic definition of crime. Unfortunately, it’s not always that simple.

Sometimes our law includes a ‘duty to act.’ And, where our law imposes a duty to act, a criminal offence may be committed for failure to act as required by law.

Canadian Criminal Procedure by Patrick J Ducharme

The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.

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