SCC tosses odd defence for Montreal squatters who assaulted cops

Supreme Court of Canada. Stock photo by Getty Images

There’s a well-known adage that ignorance of the law is no excuse, but what if you honestly believe what you’re doing is legal?

The Supreme Court of Canada has ordered a new trial in a bizarre criminal case where two apparent squatters escaped charges of breaking and entering, assaulting police and drug possession, all with one unusual, somewhat nebulous defence.

The case of R. v. Simpson dates back to 2011 when Andrew Simpson and Kizzy-Ann Farrell were evicted from their apartment, then took up residence in the commercial space on the ground floor of the same building.

The landlord, suspecting Simpson and Farrell were squatting in the space, visited the building with a municipal inspector and police in tow. The officers entered, then a chase ensued. Simpson and Farrell were arrested for assault and, during the ensuing search, cops found Simpson was holding methamphetamine and ecstasy.

As if that didn’t sound like a sufficiently open-and-shut case, Simpson and Farrell fired their lawyers one day into their trial and represented themselves — rarely the first step to an acquittal.

However, the two escaped charges after a judge accepted their defence of  “colour of right.”

Which the SCC clarified as: “The term ‘colour of right’ denotes an honest belief in a state of facts which, if true, would at law justify or excuse the act done.”

Of course, that doesn’t excuse any action. As it relates to this case, it’s certainly not a defence to say, “but I believed it was right to attack the police and carry meth!” But Simpson and Farrell argued they had “colour of right” to live in that commercial space, meaning the resulting search and arrest amounted to unconstitutional search and seizure.

See: Charter of Rights and Freedoms cheat sheet

Typically, colour of right relates to property offences. So if a defendant can show they honestly believed that they had the right to use or posses some property or thing, they might escape charges.

However, it sometimes moves beyond property and, as one judge in a 2003 case noted, “the phrase has a certain quality of elusiveness.”

It’s been used in all manner of cases, from fraud to animal cruelty, often with initial success until a higher court overturns the decision.

In this case, the landlord admitted his predecessor might have promised Simpson and Farrell use of that commercial space, and even given them keys for it. That might have worked as a colour of right defence, except the landlord didn’t outright say that had happened; it was a suggestion brought up during cross-examination, and he basically just said it could have happened.

Go figure, that’s a flimsy basis for a criminal defence.

The top court ordered a new trial for Simpson and Farrell. The judgment also included a footnote questioning whether colour of right can be a legal basis for self-defence against police, and said the new trial can tackle that question.

In other words, the question is so elusive the Supreme Court essentially kicked the can down the road for someone else to handle. We may not have heard the last of this odd case. 

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