That's a very valid point. It's a neat little problem to solve from a legislative drafting perspective. It seems to be that oftentimes in the code we do use the language of “the act that constitutes the offence”, even in circumstances where ultimately it's not an offence for which a person is going to be criminally responsible. There may in fact be better words that don't lead to a sort of legal conflict by their nature. However, we are quite confident that the courts will not be confused by the meaning of this language and that in practice it won't diminish what the defence is seeking to provide.
On February 7th, 2012. See this statement in context.