Potts was a member of an aboriginal tribe whose historical land was being built upon by a corporation. The province technically owned the lands. The tribe had applied to have the building stopped, and the land transferred to them. This was denied, but was awaiting appeal in the Supreme Court. When the people came to build, Potts stood in their way and "pretend[ed to be a] beaver". He was charged with mischief under s.430(1)(c) of the Code. He claims that he was not very familiar with Canadian laws, as he was more accustomed to his tribal laws. He believed that the fact that his case was awaiting appeal meant that the land technically did not belong to Ontario at the time, and therefore he was protecting his own land. Therefore he claims that he had a "colour of right" in his actions.
- What is a colour of right, and how do you determine if someone has one?
Defendant is acquitted.
Section 429(2) of the Code says that no one can be convicted for a crime in ss.430-446 where he proves that he acted "with legal justification or excuse and with colour of right". Therefore, if an act is done willfully, without legal justification or excuse, then the accused can be properly convicted unless he acted under some "colour of right". A colour of right is "an honest belief in the existence of a state of facts which, if they actually existed, would at law justify or excuse the act done".
Fornier states that you must determine if the accused had a colour of right subjectively. In Potts' view he was not breaking any law; his confused understanding of Canadian law and belief that his tribal laws applied led him to the belief that the land was his own, or at least that it was not Ontario's until the Supreme Court case had been decided. The simple fact that his beliefs are fallacious does not mean that they were not honestly held. Potts' subjective colour of right raises a reasonable doubt, and thus he must be acquitted.
- A colour of right is "an honest belief in the existence of a state of facts which, if they actually existed, would at law justify or excuse the act done"; it must be determined to exist subjectively in the accused's mind beyond a reasonable doubt.
- A colour of right defence only applies to crimes in ss.430-446 of the Code.