Colour of Right

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	2005
Page Categories:	[Legal Principles], [Trespass to Property]
Citation:	Colour of Right, CLNP 2005, <>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2022/09/15

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Regina v. Demarco, 1973 CanLII 1542 (ON CA)

Page 372 - 373

The learned trial Judge in his charge to the jury did not define the meaning of the terms "fraudulently” and: "without colour of right". Upon request by defence counsel to charge the jury with respect to colour of right the learned trial Judge recalled the jury and gave them the following direction:

HIS HONOUR: I have been asked to charge you again on what is colour of right. Now colour of right means an honest intention or state of facts which would constitute a legal justification or excuse for this woman having this car.

Now it's entirely up to you gentlemen to decide that on the evidence that you have heard here in the court room. As I said before anything that I have said about evidence, or anything that counsel have said, why you are absolutely at liberty to disregard it. But if there is a reasonable doubt, any question that the accused had a bona fide claim or right to which she is charged with stealing, she is entitled to that doubt and entitled to be acquitted.

In our view this direction failed to make clear to the jury that if the accused had any honest belief in a state of facts which if they existed would constitute a legal justification or excuse for her retaining the car such belief itself negatived theft.

After deliberating for some time the jury returned and said "the members of the jury would like to have the definition of colour of right clarified". The learned trial Judge then charged the jury as follows:

His Honour: Now the question arises here as to the intent and the colour of right that you have asked for a definition of. I think the best definition I can give you as to the meaning of colour of right is this. A colour' of right means an honest belief in a state of fact, which, if it actually existed would constitute a legal justification or excuse. Now that's the best definition that I can give you.

Now as I said before if this woman's evidence is to the effect that you believe that she had under the state of facts that you heard, that she had a justifiable excuse to think she was entitled to keep that car indefinitely. Why then, you have got to give her that benefit of the doubt. But it is entirely a question for the jury as to whether she had that. Her explanation to you is that she would have that idea, that she could keep that car indefinitely because she got it under the, and you have to take all of the evidence into consideration, not just what but if you believe her and that she did and that you find that she did have a justifiable belief, why then you will have to dismiss the case.

Lilly v. The Queen, 1983 CanLII 153 (SCC), [1983] 1 SCR 794

Appellant, a licensed real estate broker, was convicted of theft of $26,759.58, being sums deposited “in trust” with respect to real property transactions. The appellant relied, for 18 of the 21 transactions involved in the count on which he was found guilty, on the defence of colour of right alleging he thought he could lawfully transfer the amounts from the “in trust” account to the agency’s general account once the offer to purchase the property had been accepted. As to the other transactions involving a total of $13,500 he relied on an alleged lack of knowledge of the transfers. The Court of Appeal dismissed appellant’s appeal. This appeal is to determine whether the trial judge misdirected the jury as to the meaning of the phrase “colour of right”.

Held: The appeal should be allowed and a new trial ordered.

...

The ground upon which appellant should succeed in this Court is stated as follows:

The learned trial judge erred in law in misdirecting the jury as to the meaning of the phrase ‘colour of right’.

The trial judge, in his charge to the jury on that aspect of the law relevant to this case, first said:

The phrase ‘colour of right’ simply means a bona fide belief or an honest belief. And a bona fide belief or an honest belief may arise from a genuine mistake or in some cases even from ignorance. Therefore the phrase in the definition of theft, ‘without colour of right’, simply means the lack of a bona fide or honest belief. It is up to you to determine from the evidence whether the accused, in regard to Count No. 1 acted dishonestly and without colour of right when monies were taken, as is alleged, from the trust account of the company to the general account. You will note that the definition reads ‘fraudulently and without colour of right’ takes, not ‘fraudulently or [without] colour of right’ takes. If you find that the accused did take the monies and the actions of the accused were fraudulent and without colour of right, and that he took the said monies from the trust account with intent to deprive the owner, you must—you, in that case, would find the accused guilty of Count No. 1.

...

He told the jury that the time of payment was primarily a question of fact to be determined by them and then referred again to the accused’s defence:

As I understand the accused’s position, he says the company had a colour of right to transfer money to trust which represented commissions, or a portion thereof, when the Offer to Purchase was accepted by the purchaser. In other words the accused had a bona fide or honest belief when the Offer was accepted that he could, as President and Manager, remove monies representing a portion of the company’s commission to the company’s general account, as the money represented earnings of the company. The Crown, however, as I understand their position, take the position that a sale must be completed prior to any commission being earned. If, for example, you have an Offer with no conditions attached, such as subject to arranging finances, the commission would be, I believe, payable, according to the Crown’s proposition, on the date of possession. Or, for example, if a lawyer representing the vendor advised the agent that the sale was completed, then the commission becomes payable.

There is in Mr. Childs’ list of shortages in the trust account sales involving D & K Construction and Symak Construction. It appears to me, and this is only my recollection, you look at the files and determine for yourself, but it appears to me that when the Offer in these cases was accepted by the vendor the residence was either then under construction or construction had not commenced. Possession in some of these cases was available, as I recollect, and you will examine the facts, six or eight months after the Offer was accepted by the vendor. The question is does the agent have to wait six or eight months for his commission or is it payable on acceptance of the Offer. That is a question for you to resolve. If you find commission to be payable on completion of the transaction, for example, possession being given, it appears to me that no monies representing the commission should be transferred until the agent has been so advised. However, it is up to you to determine if the company, through the accused, had the right to transfer the commission from the trust account to office at the time such transfer was made.

(Emphasis added.)

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.