Duhaime's Law Dictionary


Malum prohibitum Definition:

Latin: wrong because prohibited.

Related Terms: Malum in se

Distinguished from acts which are mal in se; inherently wrong.

Malum prohibitum are acts which are illegal that are not inherently wrong but are so because they are prohibited by society in order to advance some reason of public policy.

As Judge Jackson of the Saskatchewan Provincial Court proposes in Doepker Industries v Chetty, acts which are malum prohibitum are , "unlawful because prohibited by statute".

Malum prohibitum acts are generally less serious than those crimes which are mal in se.

Example of an act that are malum prohibitum are plentiful: copyright infringement, speeding, etc.

Or possession of a firearm as Justice MacFarland of the Ontario Court of Appeal wrote, in R. v. Rattray:

"An assault, such as (a) grievous one ... is an act malum in se. The mere possession of a firearm is an act which may be perfectly legal or subject to varying degrees of regulation. It is not wrong by its very nature."

The classic distinction between mal in se and malum prohibitum is fading, as explained by Justice Hutcheon of the British Columbia Court of Appeal in R. v. Adkins:

"In the early days, the courts distinguished for this purpose between an act that was malum in se and one that was malum prohibitum. Not much has been heard of this qualification in later English law, because it is generally agreed that the distinction between mala in se and mala prohibita is of doubtful philosophic validity.....Sometimes the cases say that the act must be malum in se and not merely malum prohibitum.

"This test no longer seems useful, as not all persons agree on what acts are intrinsically wrong."

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