Duhaime's Law Dictionary


Colour of Right Definition:

A good faith assertion of a proprietary or possessory right to a thing.

"The jurisprudential history surrounding the phrase colour of right," warned Justice Bayda in the 2003 decision of the Saskatchewan Court of Appeal in R v Dorash, "indicates that the meaning of the phrase has a certain quality of elusiveness."

Justice Bayda then purports to contain that "elusiveness" by proposing:

"A colour of right can have its basis in either a mistake of civil law ... 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."

Consider also the oft-cited words of Justice Martin of the Ontario Court of Appeal in R. v. Demarco as follows:

"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."

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