Aug 10, 2015

Colour of Right must be objectively reasonable for Charter to be engaged

R. v. Simpson, 2015 SCC 40 (CanLII)

The Crown appealed the decision of the Quebec Court of Appeal upholding acquittals of Simpson and Farrell on break & enter, assault and drug offences.

S & F had been lawfully evicted from a residential apartment, but then took up residence in an unoccupied commercial space below, owned by the same landlord. The landlord contacted authorities, and when police arrived and forced their way in to the commercial space, S yelled that the officers had no right to be there, threatened them with a piece of wood and attempted to flee. While S was being arrested, F attacked the officers.

At trial, the defendants relied on Colour of Right as their defence. The trial judge believed that they “reasonably thought” they had a right to be in the commercial space and acquitted them of all charges (on the grounds that the entry by officers and subsequent arrests and search were also then illegal). The defence had put a proposition to the current landlord on cross examination that it was possible that S & F had, had a verbal agreement with the previous landlord to use the commercial space. The current landlord could not categorically deny the proposition, but did not adopt it as true.

The trial judge erred in finding that the accuseds had an honest belief in their right to occupy the commercial space, especially because non-occupation orders had been posted on the building. Accordingly, there was no colour of right, Section 8 of the Charter could not be engaged and the evidence from the police entry from which the charges stemmed could not be excluded.

Colour of Right is not just about what the accused subjectively believed if Section 8 is to be engaged. The accused must also show that their subjective expectation of privacy arising from the colour of right was objectively reasonable. New trial ordered.