Colour of Right

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2022. (Rev. # 96595)

General Principles

A colour of right is a defence to certain property-related offences. It is an honest belief on the part of the accused that they had a right to possess certain property, despite that there was no true basis for the belief in fact or law.[1] This does not include mere belief in a moral entitlement to the property[2] This can also apply as a form of "mistake of fact" where there is an honest but mistaken belief in facts, which if true, would have justified or excused the offence.[3]

Elements

The standard requirements for the use of a colour of right defence consists of:[4]

  1. "The Accused must be mistaken about the state of a private law, not a moral right"
  2. "That law, if it existed, would provide a legal justification or excuse" and
  3. "The mistaken belief must be honestly held."
Must Act Honestly and in Good Faith

"Colour of right" refers to "an assertion of a proprietary or possessory right to the thing". An "honest" belief in a claim to the property is not without the "colour of right" irrespective of whether there was a mistake of fact or law.[5] Where the accuse asserts a mistaken belief the requirement is "merely a particular application of the doctrine of mistake of fact."[6]

The Crown must prove that the accused acted "without colour of right" and must be acting dishonestly and in bad faith.[7]

Applicable Offences

Colour of right defence applies for offences of theft under s. 322, break and enter as well as other property-related offences.[8]

In the case of break and enter, it is not permissible to use colour of right defence where the accused owns the house and wants to gain access by force without the consent of the lawful occupant.[9]

Colour of Right and Mens Rea

There are some who see colour of right being a negation of the mens rea of the offence rather than a formal defence to the offence.[10]

Onus or Burden of Proof

The onus is upon the accused to establish an air of reality to the defence. Only then does the burden move the to Crown to disprove beyond a reasonable doubt.[11]

  1. ↑ R v Howson, 1966 CanLII 285 (ON CA), 3 CCC 348, per Porter CJ
    R v Dorosh, 2003 SKCA 134 (CanLII), 183 CCC 224, per Bayda CJ
    R v Simpson, 2015 SCC 40 (CanLII), 21 CR (7th) 225, per Moldaver J, at para 31 ("an honest belief in a state of facts which, if true, would at law justify or excuse the act done")
    R v Cinq-Mars, 1989 CanLII 7116 (QC CA), 51 CCC (3d) 248, per Vallerand JA ("The accused acts under a colour of right if he erroneously thinks that he can rely on this right in the circumstances. The claim of a merely "moral" right does not constitute colour of right. Belief in a "moral" right is not based on a conception of law. It rather consists of the affirmation by the Accused of his right to act as he does despite the law.")
  2. ↑ R v Hardimon (1979), NSR 232 (NSCA)(*no CanLII links)
    R v Hemmerly, 1976 CanLII 1303 (ON CA), 30 CCC (2d) 141, per Martin JA ("Even if the appellant believed that he had a moral claim to the money (which I am far from holding), a belief in a moral claim could not constitute a colour of right: ...") }
  3. ↑ Simpson, supra, at para 31
  4. ↑ R v No Chief, 2021 ABPC 276 (CanLII), at para 45
    R v Pena, 1997 CanLII 3380 (BC SC), 35 WCB (2d) 156, per Josephson J, at para 22
    Cinq-Mars, supra
  5. ↑ R v DeMarco, 1973 CanLII 1542 (ON CA), [1973] OJ No 533, per Martin JA, at paras 7 to 10
    Howson, supra
    R v Manuel, 2008 BCCA 143 (CanLII), 231 CCC (3d) 468, per Levine JA, at para 10 (colour of right is “an honest belief in a state of facts or civil law which, if it existed, would negate the mens rea for the offence”)
    R v Hudson, 2014 BCCA 87 (CanLII), per Frankel JA
  6. ↑ DeMarco, supra
  7. ↑ R v Parent, 2010 QCCQ 82 (CanLII), per Bonin J -- accused used CPIC account to get licence plate info which ended up in hands of criminals.
  8. ↑ Simpson, supra, at para 31
  9. ↑ R v McFarlen, 2008 BCSC 1848 (CanLII), per Joyce J
  10. ↑ e.g. R v Thomas, 2016 BCPC 391 (CanLII), per Woods J, at para 11
  11. ↑ Simpson, supra, at para 32

Offences

The offences which involve consideration of colour of right include:

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