(2) No person shall be convicted of an offence under section 430 to 446 where he proves that he acted with legal justification or excuse and with colour of right.[3] The word "and" in this section has been judicially edited to an "or," so that there need be only "legal justification" or "colour of right." See R. v. Creaghan (1982), 1 C.C.C. (3d) 449 (Ont. C.A.).
[4] In an earlier ruling, I found that s.429(2) offends the Charter by requiring proof of the defence by the accused. The remedy granted was to "read down" that section to place an evidentiary burden only on the accused. If the defence is available on the evidence, the accused is entitled to the benefit of any reasonable doubt that may arise.
[5] The colour of right defence involves a lack of mens rea. Generally, colour of right is "an honest belief in a state of facts (or law, as discussed below) which, if it existed, would be a legal justification or excuse": R. v. Penahue (1991), 90 Nfld. & P.E.I.R. 207 (Nfld/ Prov. Ct.). The criminal activity must be based on an actual mistake, rather than simple ignorance, "advertence rather than not thinking at all": D. Stuart, Canadian Criminal Law: A Treatise (Carswell: Scarborough, 1995) at 308.
Mistake of Law
[6] In R. v. Ninos and Walker, [1964] 1 C.C.C. 326 at 330 (N.S.C.A.), colour of right was defined as "an honest belief in a state of facts which, if it existed, would be a legal justification or excuse." In this respect, colour of right is an application of the mistake of fact defence.[7] Colour of right may also apply where there has been a mistake of law, although courts have disagreed on this point. This issue seems to turn on how the colour of right defence should be separated from s. 19 of the Criminal Code, which reads as follows:
19. Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.[8] The strongest authority for the theory that mistake of law should not be included in the colour of right defence is R. v. Shymkowich, [1954] 110 C.C.C. 97 (S.C.C.), where Rand, J. rejected mistake of law as a defence to theft. The defendant had collected and sold loose logs floating within a recognized booming area in the belief that he had the right to do so because the logs were drifting and the tide or wind had carried them into the enclosure. However, at p. 99 Rand stated:
What, then, he believed was that by the general law he had a right to collect [the logs] as he did, to dispose of them, and in effect to require the owners to pay him or the person to whom he transferred them remuneration for his salvage work. Is that admissible as a defence? I have no doubt that it is not. As Kenny in his Outlines of Criminal Law, 1952 ed. at pp. 48-9 says: "The final condition is, that the mistake, however reasonable, must not relate to matters of law but to matters of "fact". For a mistake of law, even though inevitable, is not allowed in England to afford any excuse for crime...."[9] Rand, J. seems to make a distinction between a pure mistake of law and a mistake of civil law/property rights, the latter being considered a mistake of fact. Thus, it would seem that where the mistake is based on a question of ownership (be it legal or factual), the colour of right defence may apply using this rationale.
... A claim to ownership of a chattel, although it may depend on matter of law, is, in most cases, a question of fact, or its legal basis may, in the ordinary sense of the word, be subsumed in "fact." This enhances the difficulty of separating legal from factual elements in any relation to property and in any case it may resolve itself into a refined conceptual distinction. But a distinction between justifying an act as authorized by law and as a bona fide belief in a propriety interest does seem to correspond with an instinctive discrimination between the two concepts.
This idea is given its best expression by Lord Westbury in Cooper v. Phibbs (1867), L.R. 2 H.L. 149 at p. 170 in the following language: 'It is said "ignorantia juris haud excusat;" but in that maxim the word "jus" is used in the sense of denoting general law, the ordinary law of the country. But when the word "jus" is used in the sense of denoting a private right, the maxim has no application. Private right of ownership is a matter of fact; it may be the result also of matter of law; but if parties contract under a mutual mistake and misapprehension as to their relative and respective rights, the result is that the agreement is liable to be set aside as having proceeded upon a common mistake.'"
[10] 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.).
[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. appears to acknowledge that the colour of right defence includes mistake of law.
[16] Finally, Penahue, 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.) all 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."
Legal Rather Than Moral Right
[17] When the accused acts on a mistake of law, the accused must believe that he has a legal as opposed to a moral right to act.[18] In R. v. Cinq-Mars (1989), 51 C.C.C. (3d) 248 (Que C.A.), Vallerand J.A. quoted the following passage from Jacques Fortin and Luise Viau, Traite de droit penal general (Les editions Themis Inc., 1982) at 128, which notes this distinction:
Colour of right consists of an erroneous belief on the part of the accused that he has a legal right to act as he did...Two fundamental conditions govern colour of right. First, the error must concern a conception of private law; the accused believes that the law recognizes his right to act as he did. Secondly, the right the accused believes he has must be a "legal right" and not simply a moral right. A legal right, that is a right recognized at private law -- for example, a right to possession...a right of retention. 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.[19] In R. v. Hemmerly (1976), 30 C.C.C. (2d) 141 (Ont. C.A.).Martin J.A. at p. 145 states:
"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: see Glanville Williams' Criminal Law (the General Part, 2nd ed. (1961), p.322; Harris v. Harrison, [1963] Crim. L.R. 497, and commentary.)"
Evidence related to colour of right:
[20] 1. The land was first used for sundance ceremonies in 1989 after the accused Percy Rosette approached the registered owner of the land seeking permission to use the land for that purpose. That permission was granted.2. Subsequently, the accused Percy Rosette and others entered into an agreement with the registered owner of the land, acknowledging its ownership and agreeing to conditions as to its use by them for sundance ceremonies.
3. Subsequent to the ceremony, Percy Rosette and others wrote the registered owner of the land expressing appreciation for that use, and indicating that they were investigating the possibility of advancing a land claim in respect of that land.
4. During the occupation of the land, there were numerous statements by members of the encampment, mostly by Doc Hill and Jones Ignace to the following effect:
a) "Bruce Clark has challenged even the whole colony of B.C., and their presence in native lands."[21] Bruce Clark testified that he advised certain accused to the above effect, and told them that no Court in this country (including the Supreme Court of Canada) had accepted his argument on the law because, in effect, the Judges of this country are blinded by self interest. His advice was that only a "third party tribunal, one such as the Privy Council of Great Britain, would be sufficiently free of self interest to accede to what he believes to be his compelling and irrefutable argument on the law. It was that demand which was at the heart of the stand-off at Gustafsen Lake.b) "Native nations have the right to sovereignty, free of any colonial regimes and restrictions."
c) "All unceded territory shall be left unmolested and undisturbed."
d) "B.C. [doesn't] have the right to set up government here in the province."
e) "Domestic laws don't apply in this situation here...they cannot charge us in any way because we are a sovereign people."
f) "We are standing on sovereign territory of the Shuswap nation."
Conclusion
[22] As set out in Howson, DeMarco, Cinq-Mars and Creaghan, supra, there are three conditions to the application of the defence of colour of right:1. The accused must be mistaken about the state of a private law, not a moral right.[23] I conclude there is no "air of reality" to the defence in that there is no evidence upon which a properly instructed jury acting reasonably could find that any accused was mistaken about a fact or the state of a private law. All the evidence is to the effect that the accused were well aware that the registered owner of the land was Mr. James or his company. There is no evidence of anyone asserting a belief that anyone else was the owner of that land, as recognized by the laws of this Province.2. That law, if it existed, would provide a legal justification or excuse.
3. The mistaken belief must be honestly held.
[24] All the evidence is to the effect that the belief held was that, if this were a just country, the Courts would have struck down the law recognizing registered owners of land such as this as the lawful owners, and restored lawful ownership to the natives. The belief is also that, if this were a just country, the Courts would have recognized that unceded and untreatied land is independent sovereign native land over which Canada, the provinces and its arms of government have no jurisdiction. There is no evidence that any accused harboured an honest mistake about the laws of this country as they exist, whether public or private, only a belief as to what the law should be if it were to reflect what they believed to be their just cause.
[25] There is no evidence to the effect that during the period in the Indictment any accused held a belief as to a right of occupation of the land for certain purposes, such as spiritual purposes. Even assuming that there was evidence that an accused believed such a right of occupation existed for the recently imported sundance ceremony at that location, the ceremony had been concluded for that year. The only evidence is that those remaining did so for the purpose of advancing their claim to native ownership of and sovereignty over that land.
[26] There is no evidence to support any conclusion other than that the accused held a belief in a moral right to the land despite the law. Thus, there is no evidence from which the jury could find or infer facts giving rise to the defence of colour of right.
I.B. Josephson, J.
