Colour of Right
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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.[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]
"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.[4] Where the accuse asserts a mistaken belief the requirement is "merely a particular application of the doctrine of mistake of fact."[5]
Colour of right defence applies for offences of theft under s. 322, break and enter as well as other property-related offences.[6]
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.[7]
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.[8]
- ↑
R v Howson, 1966 CanLII 285 (ON CA), (1966), 3 CCC 348 (Ont.CA), per Porter CJ
R v Dorosh, 2003 SKCA 134 (CanLII), (2004), 183 CCC 224 (Sask. CA), per Bayda CJ
R v Simpson, 2015 SCC 40 (CanLII), 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 Hardimon (1979), NSR 232 (NSCA)(*no CanLII links)
- ↑
Simpson, supra at para 31
- ↑
R v DeMarco, [1973] OJ No 533 (Ont. C.A.), 1973 CanLII 1542 (ON CA), per Martin JA at paras 7 to 10
R v Howson, 1966 CanLII 285 (ON CA), [1966] 2 OR 63, per Porter CJ
R v Manuel, 2008 BCCA 143 (CanLII), 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
- ↑ DeMarco, supra
- ↑
Simpson, supra at para 31
- ↑
e.g. R v Thomas, 2016 BCPC 391 (CanLII), per Woods J at para 11
- ↑
Simpson, supra at para 32
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)