View source for Colour of Right

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{{HeaderDefences}}
==General Principles==
This is an honest belief on the part of the accused that they had a right to possess the property, despite that there was no true basis for the belief in fact or law.<ref>
''R v Howson'', [http://canlii.ca/t/g12m7 1966 CanLII 285] (ON CA), (1966), 3 CCC 348 (Ont.CA){{perONCA|Porter CJ}}<br> 
''R v Dorosh'', [http://canlii.ca/t/1gcnl 2003 SKCA 134] (CanLII), (2004), 183 CCC 224 (Sask. CA){{perSKCA|Bayda CJ}}<br>
''R v Simpson'', [http://canlii.ca/t/gkdsj 2015 SCC 40] (CanLII){{perSCC|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")<br>
</ref> This does not include mere belief in a moral entitlement to the property<ref>R v Hardimon (1979), NSR 232 (NSCA){{NOCANLII}}</ref>
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.<ref>
{{supra1|Simpson}} at para 31<br>
</ref>

"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.<ref>
''R v DeMarco'', [1973] OJ No 533 (Ont. C.A.), [http://canlii.ca/t/hv028 1973 CanLII 1542] (ON CA){{perONCA|Martin JA}} at paras 7 to 10<br>
''R v Howson'', [http://canlii.ca/t/g12m7 1966 CanLII 285] (ON CA), [1966] 2 OR 63{{perONCA|Porter CJ}}<br>
''R v Manuel'', [http://canlii.ca/t/1wcg4 2008 BCCA 143] (CanLII){{perBCCA|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”)<br>
''R v Hudson'', [http://canlii.ca/t/g623g 2014 BCCA 87] (CanLII){{perBCCA|Frankel JA}} <br>
</ref>
Where the accuse asserts a mistaken belief the requirement is "merely a particular application  of the doctrine of mistake of fact."<ref>
De{{supra1|Marco}}
</ref>

Colour of right defence applies for offences of theft under s. 322, break and enter as well as other property-related offences.<ref>
{{supra1|Simpson}} at para 31<br>
</ref>

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.<ref>
e.g. ''R v Thomas'', [http://canlii.ca/t/gw0n3 2016 BCPC 391] (CanLII){{perBCPC|Woods J}} at para 11<br>
</ref>

'''Onus or Burden of Proof'''<br>
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.<ref>
{{supra1|Simpson}} at para 32<br>
</ref>

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==Offences==
The offences which involve consideration of colour of right include:
* [[Theft (Offence)]]
* [[Forcible Entry (Offence)]]
* [[Telecommunication Offences (Offence)]] (e.g. see s. 326)
* [[Theft and Forgery of a Credit Card (Offence)]]
* [[Unauthorized Use of Computer (Offence)]]
* [[Mischief (Offence)]] (see s. 429)
* [[Arson (Offence)]] (see s. 429)
* [[Animal Cruelty (Offence)]] (see s. 429)

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