Colour of Right

Theft and Colour of Right

Theft

322 (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent

(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;

(b) to pledge it or deposit it as security;

(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or

(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

Motor vehicle theft

333.1 (1) Everyone who commits theft is, if the property stolen is a motor vehicle, guilty of an offence and liable

(a) on proceedings by way of indictment, to imprisonment for a term of not more than 10 years, and to a minimum punishment of imprisonment for a term of six months in the case of a third or subsequent offence under this subsection; or

(b) on summary conviction, to imprisonment for a term of not more than 18 months.

 

WHAT DOES THE CROWN NEED TO PROVE?

This case will hinge on whether the alleged theft took place fraudulently and without colour of right. Case law suggests that both defences are related and will hinge on similar facts.

Fraudulent Intent

R v Laroche, [1964] SCR 667

Honest but mistaken belief works

Colour of Right

R v Lilly (1983), 34 CR (3d) 1, R v. Shymkowich, 19 CR 401

Honest but mistaken belief works

“With respect, this is clearly, in my view, misdirection in law. The fate of the accused’s defence of colour of right was not dependent upon the jury determining when the commissions were payable. That question was indeed important as relevant to whether the monies were his or those of his clients. The fact that they still be the property of the client was a prerequisite to his having to raise a defence to the taking or conversion. Rather, the accused’s defence was dependent upon whether they, the jury, were satisfied beyond a reasonable doubt that he, the accused, had not, at the time of the transfers, an honest belief that he had the right to that money, and not, as they were told, dependent upon what they, the jurors, thought his rights were.”

 

Noting up Colour of Right Cases

Lilly is the foundational case in this area. It is important to note that in Lilly, a case decided in ’83, the alleged theft involved almost 27 thousand dollars, a lot of money now. But the SCC was very clear in stating that honest but mistaken belief is always a defence to theft.

R. v. Abramenko  [2008] A.J. No. 61, 2008 ABPC 23

Alberta Provincial Court case that does a good job of canvassing the law.

Further, I am satisfied that the accused had a colour of right when he withdrew the monies from Brent’s account. In R. v. Dorosh (G.) (2004) 241 Sask. R. 180 (Sask. C.A.), Bayda C.J.S., speaking for the panel, at paragraphs 16 – 18 inclusive, gave the following explanation of the concept of “colour of right”:

“[16] The jurisprudential history surrounding the phrase ‘colour of right’ indicates that the meaning of the phrase has a certain quality of elusiveness (see The Law of Theft and Related Offences by Winifred H. Holland (Toronto: Carswell, 1998) at pp. 150-170). The definition of the phrase by Martin J.A., speaking for the Court (including Gale C.J.O., and Estey J.A.), in R. v. DeMarco (1973), 13 C.C.C. (2d) 369 (Ont. C.A.) at 372 may be taken to have settled many, if not all, of the contentious issues raised by earlier Canadian cases where the phrase was considered. He said:

‘The term “colour of right” generally, although not exclusively, refers to a situation where there is an assertion of a proprietary or possessory right to the thing which is the subject-matter of the alleged theft. One who is honestly asserting what he believes to be an honest claim cannot be said to act “without colour of right”, even though it may be unfounded in law or in fact: see R. v. Howson, [1966] 3 C.C.C. 348; 55 D.L.R. (2d) 582, [1966] 2 O.R. 63. The term “colour of right” is also used to denote an honest belief in a state of facts which, if it actually existed would at law justify or excuse the act done: R. v. Howson. The term when used in the latter sense is merely a particular application of the doctrine of mistake of fact.’

[17] Since DeMarco was decided, the Supreme Court of Canada has dealt with the ‘colour of right’ issue in two cases: R. v. Lilly, [1983] 1 S.C.R. 794; 48 N.R. 140; 24 Sask.R 50 and R. v. Jones and Pamajewon, [1991] 3 S.C.R. 110, 137 N.R. 321. Nothing said in the judgments in either of those cases in any way detracts from Martin, J.A.’s, definition. If anything, the court’s decision in Lilly may be said to impliedly support the definition. In two other cases, R. v. Lafrance, [1975] 2 S.C.R. 201 and R. v. Milne, [1992] 1 S.C.R. 697; 135 N.R. 202; 125 A.R. 135; 14 W.A.C. 135; [1992] 3 W.W.R. 97; 85 Alta. L.R. (2d) 257; 12 C.R. (4th) 175; 70 C.C.C. (3d) 481, the ‘colour of right’ issue arose only incidentally and not as a principal issue. These judgments as well contain nothing that detracts from the DeMarco definition.

[18] A colour of right can have its basis in either a mistake of civil law (a colour of right provides an exception to s. 19 of the Code; see: The Law of Theft and Related Offences p. 153) or in a mistake in a state of facts. The mistake in each case must give rise to either an honest belief in a proprietary or possessory right to the thing which is the subject matter of the alleged theft or an honest belief in the state of facts which if it actually existed would at law justify or excuse the act done.”

40     In the case at Bar, the accused honestly believed that he had the right to borrow money from his son’s AISH account (and, on the facts as I have found them, he did have that right). While the AISH monies were to be used for the benefit of Brent, I take from Ms. Mittelstadt’s testimony that the right to borrow did not depend upon the borrowing being for the benefit of the trust beneficiary. The fact that the accused had an honest belief that his borrowing and use of the funds was to the benefit of Brent goes not to the issue of “colour of right”, but rather it goes to the question of whether the acts of the accused were fraudulent (an issue with which I have already dealt).

41     I am completely satisfied that the accused had a colour of right to do that which he did.

R. v. DeMarco  [1973] O.J. No. 533

(This is an older case than Lilly, but on point)

Involved a vehicle, accused had kept a rental vehicle beyond due date, and had not paid, she thought there was nothing wrong with her behaviour and she could just pay them later

“The term “colour of right” generally, although not exclusively refers to a situation where there is an assertion of a proprietary or possessory right to the thing which is the subject matter of the alleged theft. One who is honestly asserting what he believes to be an honest claim cannot be said to act “without colour of right”, even though it may be unfounded in law or in fact. Reg. v. Howson, [1966] 2 O.R. 63. The term “colour of right” is also used to denote an honest belief in a state of facts which, if it actually existed would at law justify or excuse the act done: Reg. v. Howson, supra. The term when used in the latter sense is merely a particular application of the doctrine of mistake of fact.”

R. v. Pena – [1997] B.C.J. No. 1405

Very interesting case, stands for the proposition that mistake of law is also included in colour of right defence. (On reflection, this is backed up in other cases too, plus this seems self-evident because colour of right is an element of the office and mistake about it (which can include mistake of law) should be a defence)

“However, as noted by Stuart in Canadian Criminal Law, supra at 308, “it now seems clear that colour of right can also result from a pure mistake of law.”

11     In R. v. Howson, [1966] 3 C.C.C. 348 (Ont. C.A.), a case where a car towing company had been charged with the theft of a car, Porter C.J.O. reviewed the law regarding colour of right and mistake of law, and held, at p. 356:

In my view the word “right” should be construed broadly. The use of the word cannot be said to exclude a legal right. The word is in its ordinary sense charged with legal implications. I do not think that s. 19 affects s. 269 [now s. 429]. Section 19 only applies where there is an offence. There is no offence if there is colour of right. If upon all the evidence it may fairly be inferred that the accused acted under a genuine misconception of fact or law, there would be no offence of theft committed. The trial tribunal must satisfy itself that the accused has acted upon an honest, but mistaken belief that the right is based upon either fact or law, or mixed fact and law.

12     Accordingly, in R. v. DeMarco (1974), 13 C.C.C. (2d) 369 at 372 (Ont. C.A.), where the accused had rented a car and not returned it on time because she did not think that she was obliged to, Martin J. held:

The term “colour of right” generally, although not exclusively, refers to a situation where there is an assertion of a proprietary or possessory right to the thing which is the subject-matter of the alleged theft. One who is honestly asserting what he believes to be an honest claim cannot be said to act “without colour of right”, even though it may be unfounded in law or in fact…The term “colour of right” is also used to denote an honest belief in a state of facts which, if it actually existed would at law justify or excuse the act done…The term when used in the latter sense is merely a particular application of the doctrine of mistake of fact.
13     An honest belief concerning property rights, whether based on a mistake in fact or in law, may constitute a colour of right: Lilly v. The Queen (1983), 5 C.C.C. (3d) 1 (S.C.C.). (I don’t think Lilly makes this clear at all, it talks about mistake of fact

14     Recently, in R. v. Jorgensen (1995), 102 C.C.C. (3d) 97 (S.C.C.), Lamer C.J.C. noted at pp. 102-103 of his dissenting opinion that:

Despite the importance of [the rule against ignorance of the law] some exceptions to it are already established in our law…a certain number of our Criminal Code offenses provide an excuse for an accused who acted with colour of right. The existence of these exceptions demonstrates that the ignorantia juris rule is not to be applied when it would render a conviction manifestly unjust.

15     By implication, Lamer C.J.C. apppears to acknowledge that the colour of right defence includes mistake of law.

16     Finally, Penashue, supra, R. v. Drainville (1991), 5 C.R. (4th) 38 (Ont. Prov. Ct.) and R. v. Potts, [Q.L. [1990] O.J. No. 2567] (Ont. Prov. Ct.) a11 involve fact situations similar to present case. The accused were charged with mischief for occupying what they claimed were aboriginal lands. In all three cases, it was accepted that mistake of law was included in the colour of right defence, and the Court instead focused on the issues of a moral as opposed to legal right, and the accused’s “honest belief.””