Her Majesty the Queen Vs Richard Alexander Simpson Before the Honourable Judge Castor H.F. Williams, 2013 NSPC 90

IN THE PROVINCIAL COURT OF NOVA SCOTIA Cite as: R. v. Simpson, 2013 NSPC 90 Date: October 15, 2013 Docket: 2577268 to 2577276 Registry: Halifax BETWEEN: Her Majesty the Queen Vs Richard Alexander Simpson Before the Honourable Judge Castor H.F.

Williams Heard: August 8, 19; September 6, 23, 30; October 15, 2013 Oral Decision: October 15, 2013 Charges: 344; 85(2)(a); 88(1); 145(3) x 6 Criminal Code Counsel: Sean McCarroll, for the Crown Laura McCarthy, for the Accused Introduction [ 1 ] Richard Alexander Simpson has been charged on an Information containing 9 counts which read as follows: [ 2 ] On or about the 22 nd day of March, 2013, at or near Lake Charlotte, Nova Scotia, did, 1.

Recognizance entered into before a Justice at Winnipeg, in the Province of Manitoba, on the 27 th day of July, 2004, and being bound to comply with a condition of the Recognizance directed by the said Justice fail without lawful excuse to comply with that condition, to wit: Unlawfully rob Danny Allen Parsons, contrary to

Section 344 of the Criminal Code . 2. AND FURTHER, that he at the same time and place aforesaid, did use an imitation firearm while committing an indictable offence, contrary to Section 85(2) (

a) of the Criminal Code . 3. AND FURTHER, that he at the same time and place aforesaid, did unlawfully have in his possession a weapon or an imitation of a weapon, for the purpose dangerous to the public peace or for the purpose of committing an offence, contrary to Section 88(1) of the Criminal Code . 4.

AND FURTHER, that he at the same time and place aforesaid, being at large on his Recognizance entered into before a Justice at Winnipeg, in the Province of Manitoba, on the 27 th day of July, 2004 and being bound to comply with a condition of the Recognizance directed by the said Justice fail without lawful excuse to comply with that conditions, to wit: “you must not cause a public disturbance and you must obey all laws and regulations and any court orders that applies to you”, contrary to Section 145(3) of the Criminal Code . 5.

AND FURTHER, that he at the same time and place aforesaid, being at large on his Recognizance entered into before a Justice at Winnipeg, in the Province of Manitoba, on the 27 th day of July, 2004, and being bound to comply with that condition, to wit: “You must live at this address: 281 Lipton Street, Apt. 1A, Winnipeg”, contrary to Section 145(3) of the Criminal Code .

6. AND FURTHER, that he at the same time and place aforesaid, being at large on his Recognizance entered into before a Justice at Winnipeg, in the Province of Manitoba, on the 27th day of July, 2004, and being bound to comply with a condition of the Recognizancedirected by the said Justice fail without lawful excuse to comply with that condition, to wit: “you must not live at a different addressunless a Judge has first given you permission to move to that address”, contrary to Section 145(3) of the Criminal Code. 7.

AND FURTHER, that he at the same time and place aforesaid, being at large on his Recognizance entered into before a Justice at Winnipeg, in the Province of Manitoba, on the 27th day of July, 2004, and being bound to comply with a condition of the Recognizancedirected by the said Justice fail without lawful excuse to comply with that condition, to wit: “you must not own, possess or carry anyweapon”, contrary to Section 145(3) of the Criminal Code. 8.

AND FURTHER, that he at the same time and place aforesaid, being at large on his Undertaking entered into before a Justice at Regina in the Province of Saskatchewan on the 26th day of October, 2007, and being bound to comply with a condition of theUndertaking directed by the said Justice fail without lawful excuse to comply with that condition to wit: “Keep the peace and be of goodbehaviour”, contrary to Section 145(3) of the Criminal Code. 9.

AND FURTHER, that he at the same time and place aforesaid, being at large on his Undertaking entered into before a Justice at Regina in the Province of Saskatchewan, on the 26th day of October, 2007, and being bound to comply with a condition of theUndertaking directed by the said Justice fail without lawful excuse to comply with that condition to wit: “ To maintain his residence at 7– 3655 Retallack St., Regina Sask, and do not change that residence without first notifying the officer in charge, Regina City Police”,contrary to Section 145(3) of the Criminal Code.

Voir dire [3] During the trial a voir dire was conducted to determine the voluntariness of a video recorded statement of Simpson to the policewhen he was detained. The Crown called police witnesses who had contact with Simpson. Essentially, they stated that they gaveSimpson his Charter rights and police warning which he understood and that he waived his right to counsel. Likewise, they testified thatthey made no threats or promises to him. [4] Simpson also testified.

He stated that he suffers from Tourette’s syndrome and when he was in police custody he was deniedaccess to one of his two prescribed medication before he made his statement. Because he did not receive this particular medication hissubsisting medical condition made his statement involuntary. Likewise, he stated that before he made the video recorded statement thepolice threatened to arrest his aunt if he did not confess.

Defence was granted an adjournment to call medical evidence but, on therecommencement of the proceedings, called none to support the suggested contention of Simpson’s “non-operating” state of mind whenhe made his statement. [5] Therefore, on the evidence presented, I find that the police, in all aspects of the interrogation, acted appropriately. Moreover, Iaccept and find that before he gave his statement Simpson was Chartered and cautioned and that he understood his Charter rights andwaived his right to counsel.

Additionally, I find that the evidence does not support the contention that the police obtained his statementby fear of prejudice to him or his aunt. Likewise, I find that the officer’s conduct was neither oppressive nor scandalous and was free ofany coercion or misinformation.

Furthermore, without any supporting medical evidence it was difficult to conclude that not receivingone of his prescribed medication, Simpson’s medical condition had the effect of making him incapable of choosing whether or not tospeak to the police or to comprehend what was happening, if at all. [6] Therefore, upon instructing myself on such authorities as R. v. Hebert, (SCC), [1990] 2 S.C.R. 151 concerningthe test to be applied on the confession rule; R. v. Oickle, 2000 SCC 38 , [2000] 2 S.C.R. 3 and R.v.

Whittle, (SCC), [1994] 2 S.C.R 914, concerning the test for “operating mind”; and, after viewing a portion of the video recording concerning thefirst interaction between Simpson and the police officer, before he made his statement, I am satisfied, beyond a reasonable doubt, thatSimpson’s statements were voluntary. [7] Counsels agreed that the evidence on the voir dire would also form part of the case-in-chief without the necessity of recalling thewitnesses. The video recorded statement, Exhibit 6, was tendered and admitted into evidence.

Synopsis of the Evidence [8] The accused, Simpson, who suffers from Tourette’s syndrome, lived with his aunt in a trailer on an old junk yard site where therewere lots of scrap metals that could be salvaged and sold. He was also an experienced licenced mechanic. The complainant, DanielParsons, who was a fisher, heard about Simpson and the site and contacted him to make arrangements to help clean up the property andto make some money. [9] Parsons also had an excavator which he took to the site and they made a business arrangement that was satisfactory to both ofthem.

Simpson would operate the machine and they would divide equally the proceeds of the sale of any scrap metal. For a few days’work they made a total of $300.00-$400.00 and Simpson, after some differences of opinion and persistence was paid his share of themonies less any expenses. Even so, Parsons astutely noted, from this business arrangement, that Simpson was a hard worker who neededto earn some money. As a result, he offered him a job to help in fixing up a boat, a 65 foot dragger that he, Parsons, was dismantling inShelburne.

He estimated that it would be a 15 hour job and accordingly, they mutually agreed upon a rate of $15.00 an hour forSimpson’s labour. [10] With Parsons driving his car, they made two trips to Shelburne. On the first trip they worked for three or four hours and Parsonpaid Simpson $50-$60. Returning to Lake Charlotte that evening they went back to Shelburne for a second time the following day.

Simpson, however, calculated that this trip would be for duration of about 24 hours and only packed enough food, coffee and medication to last for the estimated time. [ 11 ] However, things did not work out as anticipated and the unfolding events started to strain their relationship. First, they stopped often on the way with Parsons buying and consuming coffee without offering any to Simpson who had little or no money on his person.

When he eventually relented and offered one to Simpson who rolled up the rim and won a free coffee, Parsons declared and insisted that the free coffee belonged to him as he had purchased the cup. [ 12 ] Second, they arrived late in Shelburne about 7:00 pm, and Simpson was starting to feel exasperated but was exercising self- control as he needed the money and he had promised to do a job. They worked from 7:00pm until about 3:30am dismantling a marine engine. They slept on the boat and at 9:00am recommenced working.

Simpson was now hungry and irritable having eaten all his food and also had no cigarettes or medication. He informed Parsons of the situation and requested some money for work done in order to purchase some food. He also discovered a 12-pack Pepsi on the boat but Parsons confiscated them as belonging to him. In any event, Parsons gave Simpson $100.00 which he immediately took and purchased food and cigarettes. [ 13 ] Third, Parsons did not have the proper authorization from the local wharf master to place the marine engine, when removed, onto the wharf.

So, they had to stop working for four hours while he obtained the necessary permission. Nonetheless, he advised Simpson that he would also be paid for the down time. Meanwhile, Simpson had called his aunt to express his frustration and even thought of hitchhiking home. [ 14 ] Fourth, they finally left Shelburne at 6:00pm and arrive at Lake Charlotte at 11:30pm. Then, Simpson was tired and wanted his wages but Parsons kept talking about other matters. In exasperation Simpson informed Parsons that he just wanted what he, Parsons owed him as agreed upon. Parsons stated that he would pay for only 14 hours labour.

Simpson disagreed and reminded him of the down time for which he was not expecting any payment as the $100.00 advance would cover that and the purchased meals. But, to remove and dismantle the marine engine he actually worked more than 20 hours but only wanted payment for 20 hours for which he expected to be paid $300.00 at the agreed upon rate of $15.00 an hour. [ 15 ] Parsons suggested that he would settle the account the next day. However, Simpson knowing that Parsons had money on him and could pay him explained and insisted that he needed his earnings to purchase food, gasoline and furnace oil.

Parsons, in fact, had $1000.00 but felt that Simpson’s claim of $300.00 was too much for the work done even though he acknowledged that Simpson was a hard worker. Besides, he had not yet received payment for the job and would be paying Simpson from his own money. On the other hand, Simpson believed that Parsons was not taking the matter seriously and, given his experiences over the past two days, he also believed that Parsons was being deliberately parsimonious.

As a result, he was becoming more frustrated, irritable and angry. [ 16 ] Believing that Parsons was trying to renege on his agreement to pay him or to reduce his earnings without justification and perhaps to become physical, Simpson went over to his TV dresser and took a starter pistol from the drawer. There is, however, some difference of opinion over whether or not he pulled the pistol out of an opaque plastic bag and whether or not he aimed the pistol at Parsons.

In any event, with the pistol in his possession he wanted Parsons to pay him his just wages of $300.00 before he, Parsons, left the premises. [ 17 ] There was further squabble as to the net amount that was owed. Even so, Parsons, feeling that it was not worth getting a bad reputation in the neighbourhood by not fulfilling his obligations, decided to pay the money from his own funds. So, in acknowledgement of the money owed, he placed three $100.00 bills on a table but, in return, demanded payment of $30.00 for some fuel oil that he had earlier given to Simpson.

Simpson reminded him that the fuel oil was obtained without cost from the dismantled marine engine yet he wanted payment for it. Nonetheless, he gave Parsons $50.00 that he had remaining from the $100.00 that he received the previous day to purchase food and cigarettes. Parsons took the money. Satisfied that he had obtained his just wages and had settled any payments Parsons demanded, Simpson told him to leave his premises and not to return. Motion to Amend the Information [ 18 ] This trial commenced on August 8, 2013 and was adjourned to August 19, 2013 for arguments on a voir dire .

It was further adjourned to September 6, 2013 and the Court heard submissions on the issues raised at trial on September 23, 2013. Decision was scheduled to be handed down on October 15, 2013.

However, as counsels, in their stated submissions, on September 23, 2013, merely focussed on the count of robbery, the Court, bearing in mind the serious offences charged, felt it prudent to recall them on September 30, 2013 to make any further or omitted submissions on the remaining counts on the Information. [ 19 ] Then, although maintaining his earlier position concerning the absence of a “colour of right” defence to the robbery, the Crown, also in argument sought now to amend the count of robbery to that of extortion pursuant to the Criminal Code s. 346(1) and pursuant to the Criminal Code s.601 (2).

The sections read as follows: 346.

(1) Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done. ……. 601.

(2) Subject to this section, a court may, on the trial of an indictment, amend the indictment or a count therein or a particular that is furnished under

section 587, to make the indictment, count or particular conform to the evidence, where there is a variance between the evidence and (

a) a count in the indictment as preferred; or (

b) a count in the indictment

(

i) as amended, or (ii) as it would have been if it had been amended in conformity with any particular that has been furnished pursuant to

section 587. [20] On the motion the Crown submitted that: (

a) Extortion is an included offence of robbery. The essential elements are practically the same except that in robbery there is thepotential defence of “colour of right” while in extortion it is “without reasonable justification or excuse.” (

b) As the Criminal Code definition of the crime of robber, includes the words ‘for the purpose of extorting whatever is stolen…” it istherefore similar in some respect to the crime of extortion. (

c) The evidence adduced at trial would support a variance to the count of robbery to conform to that of extortion without causingirreparable prejudice to Simpson. [21] Against the motion the defence essentially submitted: (

a) Extortion is not an included offence of robbery. Parliament has legislated two separate and distinct crimes. (

b) The total evidence, at trial, prima facie alleged the crime of robbery which was the thrust of the Crown’s case against Simpson. Theproposed amendment was based on the same set of facts, adduced by the Crown, on the initial charge of robbery but the defence of“colour of right” would not operate in the same way with respect to the proposed amended count of extortion as it would to the initialcount of robbery. (

c) Any substitution to the count of extortion is not in conformity with the evidence. Moreover, the Crown, at this late stage of the case,has now shifted its position after hearing extensive arguments and discussions on the alleged offence of robbery and the potentialdefence of “colour of right”. Thus, to substitute the count of robbery to that of extortion would not only cause irreparable prejudice toSimpson but would also offend the concept of the rule of natural justice. Ruling on the Motion to Amend [22] First, it seems to me that the trial does not end until I have made a final decision.

Pending my decision I may amend the chargeto conform with the evidence. R.v. Clark (1974), 1974 ALTASCAD 59 , 19 C.C.C.(2d) 445 (Alta. C.A.). Second, it appearsthat the test to be applied here is whether or not the amendment can be made without causing irreparable prejudice to Simpson. R. v.Morozuk, (SCC), [1986] 1 S.C.R.31. Consequently, in my view, the present situation is governed by ss. 581 (1) and (3)and s.601 (4) of the Criminal Code: 581.

(1) Each count in an indictment shall in general apply to a single transaction and shall contain in substance a statement that theaccused or defendant committed an offence therein specified…..

(3) A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information withrespect to the act or omission to be proved against him and to identify the transaction referred to, but otherwise the absence orinsufficiency of details does not vitiate the count. …. 601(4) The court shall, in considering whether or not an amendment should be made to the indictment or a count in it, consider (

a) the matters disclosed by the evidence taken on the preliminary inquiry; (

b) the evidence taken on the trial, if any; (

c) the circumstances of the case; (

d) whether the accused has been misled or prejudiced in his defence by any variance, error or omission mentioned in subsection (2) or(3); and (

e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done. [23] Here, I find that the count of robbery on the Information is neither defective in substance nor form and with no defect apparent onits face. Likewise, in my opinion, the count gives Simpson sufficient details of the circumstances of the alleged offence and he hasreasonable information and identification of the alleged transaction.

Briefly, the evidence taken at the trial and the circumstances of thecase, which is not contested and which is elaborated upon in my further analysis, discloses that there essentially was a difference ofopinion over an amount due and owing to Simpson for his lawful labour and, in its progression, Simpson allegedly used or was inpossession of an imitation firearm to intimidate or to threaten Parsons in order to obtain what he, Simpson, honestly believed to be hisjust and lawful wages. [24] At trial and in his submissions on September 23, 2013, the Crown explicitly relied on the provisions of s. 343 (a): 343.

Every one commits robbery who

(

a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threatsof violence to a person or property; [25] Moreover, he then emphasized, in argument, that it was a theft with the threat of violence or intimidation.

Now, he says that thesame set of facts supports the crime of extortion as the definition of robbery includes the term “for the purpose of extorting….” [26] Counsel for Simpson argued that the Crown, in effect, after hearing vigorous arguments and discussions as to its applicability,wanted to nullify Simpson’s defence of “colour of right”. Further, Simpson has had no opportunity to meet the issues raised by theCrown, now in argument, but not at trial. Also, extortion is not an included offence of robbery but a separate and distinct offence. TheCrown has presented no authority to support its supposition.

Additionally, Defence submits that the conduct of Simpson’s defence andits strategy would have been different had the proposed amended charge been before the court as they were different elements to theoffences. Moreover, as he has made full answer and defence to the charge of robbery, at this point in the proceedings and in thecircumstances, the amendment, if it were to be accepted, would cause irreparable prejudice to Simpson.

Likewise, it would not be in theinterest of justice, in this case, now to substitute the charge of extortion as urged upon by the Crown. [27] Nonetheless, in my opinion, the gravamen of the offence is the alleged unlawful taking of money by Simpson from Parsons andwhen taking the money he used threats of violence or intimidation. Also, in my view, without any variance in the evidence for thedefence to meet, the Crown has presented a prima facie case of robbery.

Similarly, on the evidence, Simpson has presented his fullanswer and defence to meet that allegation against him. [28] Thus, with all respect, there is some merit to the defence’s submission that the crimes of robbery and extortion are treated byParliament as separate and distinct offences. In R. v. Foote (1974), (NB CA), 16 C.C.C. (2d) 44 (N.B.C.A.), the courtopined that extortion is not an “Included offence” in a robbery charge as it is not necessarily committed in the commission of robbery.

Moreover, since extortion can be committed without committing robbery and the Criminal Code does not make it an explicit includedoffence it not an included offence of robbery. See: R. v.

R. (G.) (2005), 2005 SCC 45 , 198 C.C.C. (3d) 161 (S.C.C.) Here, onmy findings of facts and in the circumstances of this case the evidence, in my opinion, would not support, beyond a reasonable doubt, aconviction on the proposed charge of extortion. [29] Furthermore, in my view, at this stage of the proceedings when all the evidence at trial had been focussed on robbery andarguments were submitted to meet this offence it would, in effect, after arguments have been heard, substitute a different charge to theone laid and Simpson would have had no opportunity to meet this charge and his defence, as presented, would not be applicable.

See:R.v. Naterelli, [1976] S.C.R 539; R.v. Carroll (1975), (ON CA), 27 C.C.C. (2d) 276 (Ont. C.A.). Although there is novested right to a particular defence R.v. P. (M.B.) (1994), (SCC), 89 C.C.C. (3d) 289 (S.C.C.), any amendments toconform to the evidence under s.602 (2) ought to have been made when all the evidence had been adduced and not after arguments havebeen heard. See: R. v. McConnell (2005), (ON CA), 196 C.C.C. (3d) 28 (Ont. C.A.). Additionally, it would changenot only the transaction involved but also the character of the offence alleged. R.v.Elliott, (ON CA), [1970] 3 C.C.C.233 (Ont.C.A.).

Correspondingly, in the present context, to amend the Information or to substitute an entirely new charge would, in myopinion, cause irreparable prejudice to Simpson. See also: R. v. Irwin, (ON CA), [1998] O.J. No. 627 (C.A.) [30] I therefore find that, in these set of circumstances and in its present context, on the authorities cited and for the reasons stated, theproposed amendment and or substitution will not be granted. The charge of robbery will stay as is. Relevant Legislation [31] On the case itself the relevant legislations are as follows: 322.

(1) Everyone commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right convertsto his use or to the use of another person, anything, whether animate or inanimate, with intent (

a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of hisproperty or interest in it; (

b) to pledge it or deposit it as security; (

c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or (

d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted. ….. 343. Every one commits robbery who (

a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threatsof violence to a person or property; (

b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses anypersonal violence to that person; (

c) assaults any person with intent to steal from him; or (

d) steals from any person while armed with an offensive weapon or imitation thereof.

Finding of Facts and Analysis [32] On the total evidence, I find that Parsons agreed to pay Simpson $15.00 an hour for his time and labour to be performed on theboat in Shelburne. Likewise I find that after completing the job Parsons owed Simpson wages for his labour. Further, I find and it isreasonable to conclude from the total evidence that Simpson felt exasperated with Parsons’ approach to paying him.

Likewise, I find thatParsons was aware of Simpson’s financial vulnerability, and in Simpson’s view he was taking advantage of the situation and of hispeculiar predicament. [33] Additionally, I find that Parsons agreed and acknowledged that he owed Simpson money and during what could be bestdescribed as his bargaining to reduce or to offset what he owed Simpson, tensions and emotions escalated. Moreover, I find that Simpsonwas frustrated and angry. He knew that Parson had sufficient funds to pay him his just wages and also knew that he, Simpson, neededthe money that evening to buy necessities.

Likewise, I find that Simpson felt that Parsons was stalling for time because he had not yetreceived payment for the Shelburne job. [34] I do not doubt that Simpson took a starter pistol from the drawer. Although admitting that he had in his possession the imitationfirearm, he has denied pointing it at Parsons. Similarly, he declared that his possession of the imitation firearm was for his own safetyand defence.

He was tired and just wanted his money and to relax and as Parsons was stronger than him and given Parsons’ demeanourabout paying him, Simpson did not want to end up fighting with him. [35] However, I find from my observation of the witnesses as they testified and my impression of their testimonies and, in weighingtheir testimonies in light of the total evidence and applying the formula enunciated in R.v W. (D.) (1991), (SCC), 63C.C.C. (3d) 397 (S.C.C.), I am left with reasonable doubt by Simpson’s testimony on the issues of whether he pointed the imitationfirearm at Parson; he possessed it for the purpose of committing an indictable offence; whether he took the pellet gun out of the opaqueplastic bag and or just kept it in his lap, or whether he had it to defend himself should Parsons, in the circumstances, attack him. [36] Even so, does Simpson have a claim of “colour of right” to the money that he claimed and received from Parsons?

The facts areessentially not in dispute. I find that Parsons agreed to pay Simpson for work done and has acknowledged that he does owe Simpsonmoney. The difference of opinion, if at all, was about the amount owing not that money was not lawfully owed. [37] First, however, to determine whether he has committed robbery I must consider if he did “steal.” So, did Simpson steal the moneyfrom Parsons? (

a) Did he have a fraudulent intent at the time of taking the money? (

b) Has he asserted a colour of right to the money? and, (

c) Did he intend to deprive, temporarily or absolutely, Parsons, who had a special property or interest in the $300.00? [38] Second, in R.v. Dorosh, 2003 SKCA 134 , [2003] S.J. No. 871 (C.A.) when discussing the defence of “colour of right”the Court stated at paras. 16 - 18: 16 The jurisprudential history surrounding the phrase "colour of right" indicates that the meaning of the phrase has a certain quality ofelusiveness (see The Law of Theft and Related Offences by Winifred H. Holland (Toronto: Carswell, 1998) at pp. 150-170).

Thedefinition of the phrase by Martin J.A., speaking for the Court (including Gale C.J.O. and Estey J.A.), in R. v. DeMarco (1973), (ON CA), 13 C.C.C. (2d) 369 (Ont. C.A.) at 372 may be taken to have settled many, if not all, of the contentious issuesraised by earlier Canadian cases where the phrase was considered. He said: The term "colour of right" generally, although not exclusively, refers to a situation where there is an assertion of a proprietary orpossessory right to the thing which is the subject-matter of the alleged theft.

One who is honestly asserting what he believes to be anhonest claim cannot be said to act "without colour of right", even though it may be unfounded in law or in fact: see R. v. Howson, (ON CA), [1966] 3 C.C.C. 348, 55 D.L.R. (2d) 582, [1966] 2 O.R. 63. The term "colour of right" is also used to denote anhonest belief in a state of facts which, if it actually existed would at law justify or excuse the act done: R. v. Howson.

The term whenused in the latter sense is merely a particular application of the doctrine of mistake of fact. 17 Since DeMarco was decided, the Supreme Court of Canada has dealt with the "colour of right" issue in two cases: R. v. Lilly, (SCC), [1983] 1 S.C.R. 794; and R. v. Jones, (SCC), [1991] 3 S.C.R. 110. Nothing said in the judgments ineither of those cases in any way detracts from Martin J.A.'s definition. If anything, the Court's decision in Lilly may be said to impliedlysupport the definition. In two other cases, R. v. Lafrance, [1975] 1 S.C.R. 201 and R. v.

Milne, (SCC), [1992] 1 S.C.R.697 the "colour of right" issue arose only incidentally and not as a principal issue. These judgments as well contain nothing that detractsfrom the DeMarco definition. 18 A colour of right can have its basis in either a mistake of civil law (a colour of right provides an exception to s. 19 of the Code; see:The Law of Theft and Related Offences p. 153) or in a mistake in a state of facts.

The mistake in each case must give rise to either anhonest 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 stateof facts which if it actually existed would at law justify or excuse the act done [39] Here, on the total evidence, I find that Simpson had an honest belief even if it was unfounded in law and in fact that Parsonsjustly owed him $300.00 for 20 hours of his lawful labour on the terms that they mutually had agreed upon.

In urging his claim uponParsons, I find that he was neither deceitful nor intended to deceive Parsons or to expose Parsons to any risks. He was asserting what hebelieved to be an honest and lawful claim for work done. Parsons has also acknowledged that he owed monies and was prepared to pay.

The issue was only the quantum. Thus, I find that Parsons had no special interest or property in the money owed as he was aware that he had to part with it as it was wages that he owed and which would belong to Simpson. As a result, I find that the amount was due and presently owing and that Simpson honestly believed that the $300.00, which he took, justly belonged to him. [ 40 ] Additionally, I find that Simpson, in the circumstances as I have found, did not wish to be unjustly enriched in asserting his claim.

He knew that Parsons had much more than $300.00 but he wanted only his fair and proper amount and no more. I also find that in buttressing and underscoring his honestly held belief of an even-handed relationship, when Parsons placed three $100.00 bills on the table in acknowledgement of the debt owed but demanded from Simpson $30.00, from that amount, for the free furnace oil, Simpson, paid him $50.00.

Parsons took the money and declared that all accounts were then settled. [ 41 ] On the evidence and on the facts as I have found and the authorities cited, I conclude and find that Simpson has asserted a “colour of right” defence to the charge of robbery. I find that he has succeeded in his defence. As analysed above, he did not “steal” the money, an essential element of the offence of robbery.

I therefore find that the Crown has not proved beyond a reasonable doubt that he robbed Parsons. [ 42 ] Because I have found that the Crown has not proved beyond a reasonable doubt that Simpson robbed Parsons it logically follows that, in this case, and on the facts as found, it cannot be found that he had an imitation firearm while committing an indictable offence or had it for the purpose of committing an offence.

Moreover, as I earlier have found, on these issues, Simpson’s testimony has raised reasonable doubt. [ 43 ] During the trial the Crown signalled that he would and has offered no evidence on counts 8 and 9. On motion they were dismissed for want of prosecution. [ 44 ] With respect to counts 4, 5 and 6, Simpson has offered no defence and has admitted, through counsel his breaches, as specified, of the Recognizance entered before a Justice at Winnipeg, in the Province of Manitoba on the 27 th day of July, 2004. (Exhibit 2).

I so find. [ 45 ] For a conviction under count 7 of the Information the Crown relies upon condition 10 of the Recognizance (Exhibit 2) that reads as follows: 10. You must not own, possess or carry any weapon. The Criminal Code s.2, defines “weapon” as meaning: "weapon" means any thing used, designed to be used or intended for use (

a) in causing death or injury to any person, or (

b) for the purpose of threatening or intimidating any person and, without restricting the generality of the foregoing, includes a firearm; [ 46 ] I have found that Simpson did have in his possession a pellet gun. However, was it a weapon as defined in s.2 ? On the facts as I have found there is reasonable doubt that he used it to threaten or to intimidate Parsons. Conclusion and disposition [ 47 ] Consequently on the above cited authorities and the analyses that I have made, I find as follows: Count 1 . Robbery contrary to s. 344 of the Criminal Code – Not Guilty as charged. Count 2 . Use of an imitation firearm while committing an indictable offence, contrary to s. 85(2) (

a) of the Criminal Code – Not Guilty as charged. Count 3 . Possession of an imitation of a weapon for a purpose dangerous to the public peace or for the purpose of committing an offence, contrary to s.88(1) of the Criminal Code - Not Guilty as charged . Counts 4, 5 and 6 . Breaches of conditions of his Recognizance entered into on July 27, 2004 – Guilty as charged. Count 7 . Breach of his Recognizance date July 27. 2004 – not to own, possess or carry any weapon – Not Guilty as charged. Counts 8 and 9 – Dismissed for want of prosecution. [ 48 ] As a result, I will enter acquittals and convictions accordingly. J.