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Animals and the Criminal Law (Canada)
(01 January 2015)

Chapter 4 - Colour of Right Defence


  1. Overview
  2. R v Ninos and Walker
    (a) Background
    (b) Authorities Considered
  3. R v Comber
    (a) Background
    (b) The Court's Consideration
    (c) Comment
  4. R v Creaghan
    (a) Facts
    (b) The Court's Consideration
    (c) Comment
  5. Statutory Use of the 'Colour of Right' Defence
    (a) Proposition
    (b) Exclusively Property-Related Use of "Colour of Right" in the Code
    (c) Statutory Exceptions are All Property-Related
    (d) The Code Establishes Other Defences Which Can Encompass Non-Property 'Rights'
  6. Limitations on Ownership and other Interests in Property as a 'Colour of Right' Defence
  7. Animal Offences Exempt from the Colour of Right Defence
  8. Conclusion
    (a) What the Law Is
    (b) What it Should Be

________________________________________


1. Overview

If there were a 'platypus' of Canadian criminal law, it might be the "colour of right" defence. It's old, awkward and - at least at first glance - of uncertain ancestry.

Formally, all of the 'main' Part XI animal offences [for exceptions and restrictions see s.6 and s.7 below] are subject to what is generally referred to as the 'colour of right' defence:
s.429(2)
No person shall be convicted of an offence under sections 430 to 446 where he proves that he acted with legal justification or excuse and with colour of right.
Jurisprudence has considered this composite provision generally by focussing on the "colour of right" aspect, ignoring any substantial analysis of what might constitute "legal justification or excuse" [more on this below].

Oddly, I have only located one animal offence case in which the "colour of right" defence has been applied [Comber, below], and even there I argue that the doctrine was wrongly applied (right result, wrong reason).

The doctrine has been considered in relation to some other 'property' offences discussed here. However even those considerations leave me in doubt that it has any clear and consistent meaning in Canadian criminal law.

That said, the inclusion of "colour of right" defences in the Criminal Code is unique to property offences [see s.5(b) below], a legal fact which I feel greatly assists in determining its meaning in the face of uncertain case treatment. It is plain that historically it has been inextricably tied to the high historical regard the English common law accords property rights, operating to excuse otherwise criminal behaviour committed against one's own property, or property in which one has some sort of legal interest or right (such as possession).

The below case review will help clarify the sort of treatment that this defence has received in Canadian courts. While clear potential exists in some of these cases to extend "colour of right" beyond ownership and related interests, I conclude that Canadian courts have not done so significantly to date - and as well that there are decisive statutory interpretation arguments justifying the continued restriction of the doctrine to the realm of property 'rights'.


2. R v Ninos and Walker

(a) Background

In R v Ninos and Walker [1964] CCC 326 (NSSC) the defendants had cut into publically-owned underwater cables with an intention to test them for potential salvage, which they believed was their right. They did not remove the cables, but they did damage them. The court reversed their lower court mischief acquittal and entered a conviction on the argument that the colour of right defence did not equate with what amounted to an 'ignorance of the law' defence advanced by the defence (and which is generally barred by s.19 of the Code).

(b) Authorities Considered

The meaning of "colour of right", as considered by the court, was quoted from older doctrine as follows:
'Colour of Right' has been defined to mean in the case of R. v. Johnson (1904), 8 C.C.C. 123 at p. 129, 7 O.L.R.525 at p. 530: 'an honest belief in a state of facts which, if it existed, would be a legal justification or excuse.'
The court also cited the following passages on the meaning of 'colour of right':
Crankshaw's Criminal Code, 7th ed., p. 529:

"It would appear, therefore, that no conviction should be made where the accused has acted in good faith and without mens rea, or, in bona fide belief in a state of facts which (had it existed) would have constituted lawful excuse.... It is explained in the Johnson case that the 'honest belief take away from the act its criminal character. However, mere honest belief alone is not sufficient to protect the individual. There must be fair and reasonable ground for such belief:.... Mere belief in a moral right to do what he did is not a sufficient excuse: R. v. Waiter (1910), 15 W.L.R. 427, 17 C.C.C. 9."

Wilson v. Inyang, [1951] 2 K.B. 799 was a prosecution under the Medical Act, Lord Goddard, C.J., said at p. 803:

"If he has acted without any reasonable ground, and has refrained from making any proper inquiry, that is generally very good evidence that he is not acting honestly. But it is only evidence... What we were pointing out was that, in considering whether a defendant has acted honestly, the magistrate ought to take into account the presence or absence of reasonable grounds of belief."

This view was accepted by the Supreme Court of Canada in Beaver v. The Queen, 118 C.C.C. 129 at pp. 136-7, [1957] S.C.R. 531 at p. 538, 26 C.R. 193 at p. 201, which involved an accused in possession of a narcotic drug although he believed the package in question contained a harmless substance. It was also accepted in R. v. Rees, 115 C.C.C. 1, 4 D.L.R. (2d)406, [1956] S.C.R. 640, where, in a charge under the Juvenile Delinquents Act, the accused honestly and reasonably believed the girl was over 18 years of age.
What is most pertinent to the present discussion is that 'colour of right', as drawn from the seminal R v Johnson case, is NOT inherently tied to property or related rights. It is rather much more akin to a 'mistake of fact' defence (more on this below), which is generally available to undermine mens rea in any criminal offence. An simple example of a "mistake of fact" defence would be an honest belief by the defendant that the gun he fired at the victim was in fact a 'prop' gun, firing only blanks.


3. R v Comber

(a) Background

R v Comber (Ont County Court, 1975) considered the colour of right defence in an appeal case where the defendant shot and killed a dog trespassing on his private wildlife reserve, and was charged under the 'kept animal' provision [now s.445(1)(a); see Ch.3, s.3]. The court, in an homage to credulity, accepted as fact that an initial shot fired to scare the dog off accidentally hit it in the leg. The defendant then fired an additional killing shot on the argument that it was necessary to end the poor dog's suffering. Mixed expert evidence maintained that euthanasia was not required in the circumstances.

(b) The Court's Consideration

The colour of right issue was whether the defendant was justified in the second killing shot, as a matter of compassion.

In the course of the analysis the court stated the following in obiter after reviewing related case law:
The law seems to be clear that there is no right to wilfully kill a dog simply because it trespasses onto property. There are certain occasions when a dog may be lawfully killed and it has been held that where it is attacking domestic animals, the owner of such animals is entitled, if he catches the dog in the course of such attack, to protect his property by killing the dog. However, once the attack, is over, he is not entitled to follow the dog to its place of residence or indeed, I rather gather from the authorities, is he entitled to shoot the dog unless it is in the act of attacking the animals in question. That is, of course, not the situation here. The dog in question was not attacking domestic animals.

....

In any event, as I say, I do not have to decide the rather interesting question as to what would happen if a dog were killed while in the act of attacking wildlife on private property.

[for more on this 'dog trespass' issue, see Ch.3, s.3(e)]
The court concluded, stating:
... I find that the respondent here was acting out of mercy and without malice. I find that he acted with colour of right. He believed that the dog was in such condition that it should be put out of its misery. Others might indeed take a different view but I find that Mr.Comber had an honest belief in a state of facts, namely, that for humanitarian reasons the dog should be destroyed and as I understand the law, if such state of facts existed, the shooting of the dog would be legally justified.
(c) Comment

It is first necessary to note that the application of the colour of right made here was NOT one involving property rights whatsoever. In that sense it quite consistently relied on the R v Johnson doctrine cited in the Ninos discussion,
above.

It is interesting however to note that the provision charged in Comber [then s.401(a)] was the exact equivalent to our present s.445(1), which reads:
s.445(1)
Every one commits an offence who, wilfully and WITHOUT LAWFUL EXCUSE (my emphasis),

(a) kills, maims, wounds, poisons or injures dogs, birds or animals that are not cattle and are kept for a lawful purpose; ...
In Ch.3. s.3 ["Main Offences: Kept Non-Cattle Animals and Birds"] I argue that this "lawful excuse" defence must - in order to be meaningful (ie. not redundant) - be read as distinct from the more general 'colour of right' defence. On consideration I conclude that it's best meaning is as some sort of 'non-ownership', but still 'legal' right. It is not a stretch to encompass within this the legal defence of 'necessity', in Comber being the killing of the animal in order to avoid it's further suffering. On this reasoning, by a first level court which was obviously sympathetic to the defendant on its fact-findings, the result in Comber was supportable without the need to apply the colour of right defence, much less any need to extend it beyond the context of property rights.


4. R v Creaghan

(a) Facts

In R v Creaghan (Ont CA, 1982) a defendant supervisor was acquitted at trial after being charged with mischief for tampering with the ignition of a company truck while it was being driven by a subordinate employee, whom he believed was dangerously giddy after driving too long. This action apparently caused the steering to lock and resulted in a fatal crash.

(b) The Court's Consideration

In deciding the case the court accepted that the key s.429(2) defence phrase ["legal justification or excuse AND colour of right"] should be read not conjunctively but disjunctively, by replacing the "and" with an "or". Thus it made any of: "legal justification", "excuse" OR "colour of right" separate defences in their own right.

The court then endorsed the oft-quoted R v Johnson [above] definition of "colour of right" as "an honest belief in a state of facts which, [i]f it existed, would be a legal justification or excuse". "Legal justification or excuse" are then plainly "legal" defences not involving factual mistakes.

The court found the "colour of right" defence satisfied on the basis of the superior employment status of the defendant, which put him "in our view, in no different position than the owner of the truck would be if he had been a passenger in the truck". While the court did refer to the possibility that such behaviour might attract prosecution for criminal negligence, it upheld the acquittal on this 'ownership' analogy - implicitly emphasizing the essential 'property-related' nature of the mischief offence, an aspect common to all Part XI offences.

(c) Comment

I remain unconvinced on the need to read s.429(2) disjunctively as was done in Creaghan.

While Ninos (relying on R v Johnson) makes it clear that the "colour of right" defence is inextricably tied to the parallel concepts of "legal justification and excuse", under Creaghan (above) the latter are made separate and distinct defences in their own right.

There is difficulty however in giving the (new) separate s.429(2) "justification or excuse" defences any non-redundant meaning over and above existing criminal "justifications or excuses" (ie. defences) which are universally available. For this reason the 're-writing' of the s.429(2) provision by the court in Creaghan may be unnecessary (though harmless in the result as the original structure is essentially preserved). As noted, any "legal justification or excuse" defence is available to a defendant in respect of any criminal charge with or without the s.429(2) colour of right provision. Even uncodified common law "justifications or excuses" such as self-defence, necessity and duress persist are expressly preserved in the Code by s.8(3).

Further, the separate 'colour of right' defence [as it is structured in Ninos and set out in R v Johnson: 'honest mistake which if true attracts legal justification or excuse'] may be viewed as nearly identical to a 'mistake of fact' defence, which would also be a redundancy as 'mistake of fact' is de facto form of defence applicable to all criminal charges (actually not a true defence so much as a lack of mens rea).

For the above reasons, I don't think the 'and/or' re-writing in Ninos was necessary - though again it is probably benign in light of the the widespread adoption of the coherent R v Johnson definition, which can be viewed as a composite "pre-Creaghan" 'colour of right' definition.

The beauty of the Johnson definition - without all the Creaghan confusion - is that it has independent and non-redundant meaning separate from the general 'justification or excuse' and 'mistake of fact' 'defences'. Specifically the Johnson 'colour of right' composite definition allows the defendant to rely on a 'mistake of fact' SPECIFICALLY to establish a positive "justification or excuse" defence. For example, what court would convict a person of killing a kept dog that they erroneously thought was about the kill them - even though evidence showed that it wasn't? (thus a "colour of right" claim to self-defence). This is an application of mistake of fact doctrine that does not go to mens rea, but rather to the existence of a positive defence. As such it is a unique and non-redundant meaning that does not violate the basic statutory interpretation rule that all distinct terms must have distinct meanings.

Again - while 'mistake of fact' is normally used as a defence tactic to undermine mens rea - and in that sense can be considered a 'defence', under this interpretation it becomes available to establish true positive 'justification or excuse' defence.


5. Statutory Use of the 'Colour of Right' Defence

(a) Proposition

I submit that there are several excellent statutory 'reasons' and statutory interpretation arguments (following) to read 'colour of right' narrowly as a property or property-related defence. These are set out in this section, and also in ss.6 and 7.

(b) Exclusively Property-Related Use of "Colour of Right" in the Code

Firstly, the property reading is much more consistent with the statutory use to which the defence is actually put in our Criminal Code. As revealed by a keyword search of the full text of the Code, the "colour of right" defence is always and ONLY associated with property or property-related offences, as follows (these are ALL of the 'colour of right' uses in the Code):
  • s.72(3): forcible detainer of real property
  • s.322: theft
  • s.326(1): theft of telecommunication services
  • s.342(3): possession and use of credit card data
  • s.342.1: unauthorized use of a computer

    and of course:

  • Pt XI: Wilful and Forbidden Acts in Respect of Certain Property [primarily arson, mischief and animal offences]
These are ALL property-related offences, and all relate to the illegal usurpation of the exclusive possessory or use rights which 'property' status entails.

(c) The Statutory Exceptions are All Property-Related

As is set out in s.6 below ["Limitations on Ownership and other Interests in Property as a Colour of Right Defence"], the statutorily-expressed exceptions to the operation of the 'colour of right' defence in Part XI are all property-related.

(d) The Code Establishes Other Defences Which Can Encompass Non-Property 'Rights'

While "colour of right" operates as a general Part XI defence [subject to the possible exceptions set out in s.6 below], there are two quite relevant additional defences embedded in separate Part XI animal offences which bear examination. Keep in mind that it is a basic principle of statutory interpretation that different terms must be read to have different meanings.

These provisions are (with relevant emphasis):
  • "Without Lawful Excuse"

    This phrase is located in the s.445(1) ['kept' non-cattle animals and birds] provision [see Ch.3, s.3], and it offers a "lawful excuse" defence.

    Recall Comber, an offence prosecuted under this same provision, with its excusing of the defendant by way of 'mercy-killing' necessity. What more appropriate defence that "lawful excuse" could the court have applied than that? There was no reason to apply "colour of right", nor to draw that doctrine away from its obvious property-related origins in the Code.

    I submit that while the correct result was reached in Comber, it was reached for the wrong legal reasons. There was no need to extend "colour of right" from its natural property context.

    Under this reading, "lawful excuse" can be read meaningfully as encompassing other 'legal' - but non-property - rights such as provincial law, licensing, or any other legal 'permission' such as necessity or self-defence. An example of a statutory excuse would be s.2 of the Livestock, Poultry and Honey Bee Protection Act - a provincial statute which authorizes the killing of stray dogs in some circumstances [see Ch.3, s.3(e)].

  • "Without Reasonable Excuse"

    This phrase, similar to the above but lacking it's 'legal' essence, is located in the s.445.1(1)(c) [Administering Poisonous/Injurious Substances to Domestic or Captive Wild Animals or Birds; see Ch.3, s.6] provision, and it offers a "reasonable excuse" defence.

    It seems plain that - in light of the above s.445(1) discussion - that this phrase must exclude any "legal" excuses. Similarly, attributing any 'mistake of fact' meaning to it is redundant in light of the general availability of that defence to all criminal charges. For these reasons I argue in Ch.3, s.6(c) that this phrase can only have 'reasonable' meaning as a 'moral excuse' such as mercy euthanasia and - arguably - for some medical research purposes. Such a meaning is entirely consistent with the nature of the offence, addressing as it does injury and death to tame or captive animals caused by human administration of poisons and injurious substances - a relatively common veterinary and research practice.

6. Limitations on Ownership and other Interests in Property as a 'Colour of Right' Defence

Recall that the animal cruelty provisions are included under the general Part XI "Wilful and Forbidden Acts in Respect of Certain Property" - along with arson and mischief offences. Formally, all of the Part XI offences are subject to the general "colour of right" defence, which in turn is subject to the following excepting provisions - though it is doubtful that they have any robust application to the animal offences:
s.429(3)]
Where it is an offence to destroy or to damage anything,

(a) the fact that a person has a partial interest in what is destroyed or damaged does not prevent him from being guilty of the offence if he caused the destruction or damage; and

(b) the fact that a person has a total interest in what is destroyed or damaged does not prevent him from being guilty of the offence if he caused the destruction or damage with intent to defraud.
Essentially, partial ownership of property is not a defence to a charge involving 'destruction or damage', while full ownership IS such a defence - except only in cases of fraud (the fraud exception's primary purposes would be insurance fraud).

The pivotal language of "destroy or damage" [the identical wording used in the mischief offence: s.430] makes it doubtful that this this exception is applicable to the main animal cruelty offence, which refers to "unnecessary pain, suffering and injury" - plainly recognizing the sentient status of animals. However it may have irregular application to a mixed provision such as s.446(1)(a) ['causing damage or injury to animals or birds while being conveyed'], and others.

The provision was considered in the arson case of R v Griffith (Man QB, 1987) where it was applied to acquit a defendant who set fire to papers in a home which he was the beneficial owner of under a bare trust from his wife. The court held - reasonably I think - that this arrangement constituted a 'total' interest. It is necessary to note that this conclusion was based on an inference drawn from the statutory construction of s.429(3)(b), which on its face only prohibits a specific defence (full interest with fraudulent intent). Here, where the defendant had a full interest but the fraud element was absent, the court plainly adopted the logical corollary of the provision to apply a positive defence.

That said, the existence of s.429(3) is additional statutory 'evidence' of the essential 'property' nature of the "colour of right" defence.


7. Animal Offences Exempt from the Colour of Right Defence

Several of the main animal offences considered in Ch.3 ["Main Offences"] expressly create 'owner' (and sometimes 'custodian') forms by which the offence can be committed. Indeed, some of them can ONLY be committed by owners (or owner-proxy) persons.

If I am correct in my conclusion (above) that the "colour of right" defence is essentially a 'property' (over the animal) or property-related defence then, as a matter of statutory interpretation, the express creation of these 'owner'-form offences seems to necessitate those specific offences being excepted from the application of the "colour of right defence". Were that not the case then ANY property or property-related form of the offences would be meaningless as they could ALWAYS avail themselves of the colour of right defence.

Under that reasoning, the following 'main' animal provisions - all of which have specific "owner" or 'owner-proxy' offence forms - are exempt from the colour of right defence:
  • General Cruelty [Ch.3, s.4] [CCC 445.1(1)(a)]

  • Administering Poisonous/Injurious Substances to Domestic or Captive Wild Animals and Birds [Ch.3, s.6][CCC 445.1(1)(c)]

  • Abandonment or Inadequate Care of Domestic or Captive Wild Animals or Birds [Ch.3, s.9]

  • Keeping Cockpits [Ch.3, s.10]
Of course, this conclusion applies practically to any non-owner/occupier forms of these offences as well, as they - by their very nature - would not be able to avail themselves of the 'ownership' "colour of right" defence anyway. The above-listed provisions thus appear to be completely exempt from the colour ofright defence.


8. Conclusion

(a) What The Law Is

If my reasoning in this chapter is correct, then several conclusions follow with respect to the "colour of right" defence:
  • the defence operates to excuse behaviour where ownership (or an ownership-like interest), or honest belief of the same, constitutes a valid legal justification or excuse for the behaviours alleged;

  • any attempt to extend the defence to 'non-property' contexts [such as Comber above] results in significant legal redundancies in light of other pre-existing legal defences such as 'mistake of fact', and specific "legal excuse" ["Kept Non-Cattle Animals and Birds": Ch.3, s.3] and "reasonable excuse" ["Administering Poisonous/Injurious Substances to Domestic or Captive Wild Animals or Birds; see Ch.3, s.6]"] defences;

  • to the extent that the colour of right defence applies (above), it can only apply to the following animal offences [as set out in Ch.4]:

    - Cattle [Ch.4, s.2]
    - 'Kept' Non-Cattle Animals and Birds [Ch.4, s.3]
    - "Fighting" and "Baiting" [Ch.4, s.5]
    - Captive Bird Shooting [Ch.4, s.7]
    - Injury During Transportation [Ch.4, s.8]

  • the colour of right defence is subject to the further restrictions set out in s.429(3) [see s.6 above] that a partial interest does not invoke the defence against a "destruction or damage" allegation, and a full interest does not defend against similar allegation grounded in fraud.
Ultimately, my conclusion is that the "colour of right" defence, after navigating all of the above restrictions, has very limited present application to the animal offences.

(b) What it Should Be

I would go further and argue that even where the colour of right defence does apparently apply, it does so without coherent pattern - even when judged under conventional animal use morality [for that see the Menard case reviewed in s.4(e) of this chapter].

That is, even under conventional human/animal morality, I would argue that a 'colour of right' defence only makes (any) sense at all with respect to one of the nine animal offences, and even then only in one limited form of it (see below).

Firstly, I think that most would agree that all of the following offences address either cruelty or morally gratuitous killing/injuring of animals, and as such should bear equally on both owners and non-owners alike:
  • general cruelty (defence not applicable)
  • fighting and baiting (defence applies)
  • captive bird shooting (defence applies)
  • injury during transportation (defence applies)
  • abandonment and inadequate care (defence not applicable)
  • cockpits (defence not applicable)
.Next, I see no functional role for application of the defence in the "kept non-cattle animal and bird" offence (where it applies)(ie. "killing, maiming, wounding, poisoning or injuring") provision as that offence already contains it's own "lawful excuse" defence for self-defence or property-defence purposes.

Similarly - and again under conventional moral reasoning - a colour of right defence is unnecessary for the "administering poison/injurious substances to domestic or captive wild animals or birds" offence (where it does not apply) as that offence already contains its own "reasonable excuse" defence, which accomodates for mercy euthanasia and research use. IF we, as a nation, want to allow non-mercy (and painless) killings of animals by owners, then that should be made clear by a clarification of the term "reasonable excuse" [I note that it is conventionally already treated that way].

Finally, the only offence which currently has any robust application of the colour of right defence is the "cattle" offence (where it does apply)(ie. "killing, maiming, wounding, poisoning or injuring"). BUT of course there it only makes any sense at all with respect to "killing", and then for food use. That exception alone could be accomodated for by a simple express food use exception, again with painless death.

To return to my initial chapter analogy - like the platypus, it is a small miracle that the "colour of right" defence persists today in formal application to the animal offences. Even in relation to inanimate property (ie. arson and mischief) it remains an oddity of uncertain meaning.
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