R. v. Thomas Date:, 2016 BCPC 391

Citation: R. v. Thomas Date: 20161208 2016 BCPC 391 File No: 93044-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KEVIN CRAIG THOMAS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: G. Barnes Counsel for the Accused: P. McMurray Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: January 15, August 26 & October 27, 2016 Date of Judgment: December 8, 2016

INTRODUCTION [1] Not long after 6:00 a.m. on August 31, 2014, the accused Kevin Craig Thomas (“Mr. Thomas”) walked to the top of thedriveway of the house belonging to Raymond McCurrach (“Mr. McCurrach”) located at 3007 Larch Way, Port Coquitlam, B.C. (the“McCurrach Home”), picked up one new and one spent truck battery sitting there (collectively, the “Batteries”), carried them back out tothe street, placed them in a small makeshift trailer attached to his bicycle, rode away and eventually sold them.

The McCurrach Home isequipped with a video surveillance system and in the recording captured by that system on the alleged offence date, Mr. Thomas can beclearly seen walking up to the top of the driveway, picking up the Batteries and taking them away. [2] None of the facts recounted in the preceding paragraph is in dispute. Neither is there any dispute that, in taking the Batteries ashe did, Mr. Thomas intended to deprive Mr. McCurrach of them absolutely. Indeed, counsel are agreed that the only issue in thisprosecution of Mr. Thomas for alleged theft of property of a value less than $5,000, contrary to s. 334(

b) of the Criminal Code, iswhether in taking the Batteries Mr. Thomas acted “fraudulently and without colour of right" and, thus, had all of the mens rea necessaryto found a conviction for theft of the Batteries. Put more simply, the central question this case raises is: Did Mr. Thomas (as his counselsubmits) have an honest belief that the Batteries were free for the taking and that Mr.

McCurrach had put them where they stood at thetop of his driveway intending that they be collected by him as a neighbourhood scavenger/binner[1]—in effect, renouncing anyproprietary or possessory interest in the Batteries? (That claimed belief was, without question, at the very least a mistaken belief. Mr.McCurrach retained, throughout, proprietary and possessory interests in the Batteries and the uncontroverted Crown evidence establishesthat in placing them at the top of his driveway, he did not renounce those interests, nor did he intend that Mr.

Thomas or any otherscavenger/binner take the Batteries away as discarded goods.) [3] In order to answer the central question raised by this case, I must consider the evidence placed before me that is relevant to theissue of colour of right, make findings of fact and then apply the governing law to those facts. Insofar as Mr.

Thomas gave defenceevidence that speaks directly to colour of right and which the Crown submits I should reject as not being credible, I must also subject thatdefence evidence to a credibility assessment which is guided by the formulation handed down by the Supreme Court of Canada in R. v.W.D., (SCC), [1991] 1 S.C.R. 742, at 757, as enlarged and augmented by the B.C. Court of Appeal in R. v. H.(C.W.)(1991), (BC CA), 68 C.C.C. (3d) 146 (C.A.). [4] While the prosecution of Mr. Thomas involves a theft of goods of relatively small value, the subtleties in the law that thedefence raised to it are considerable.

Accordingly, I have found that in carrying out the necessary legal analysis in this case I have had tocover more ground than expected. However, like every accused person, Mr. Thomas is entitled to the benefit of the presumption ofinnocence and—even in a case where the value of what he is alleged to have stolen is comparatively low—Mr.

Thomas (and indeed, thepublic at large) can and should expect the court to chart a clear and intellectually defensible pathway through all of the twists and turns ofthe evidence and the governing law to the final conclusion that it ultimately reaches. [5] I consider that it will be helpful, then, if I begin with a brief review of the law governing colour of right, following which I willreview the evidence and make factual findings to which I will then apply that law. THE GENERAL LAW GOVERNING COLOUR OF RIGHT [6]

Section 322 of the Criminal Code defines the offence of theft and the language of that

section that is engaged by the presentprosecution is found in s. 322(1)(

a) which reads: “Every one commits theft who fraudulently and without colour of right takes … anything whether animate or inanimate, with intent … todeprive, temporarily or absolutely, the owner of it … of the thing …” [7] As I have noted, that the Crown has established the actus reus of a theft offence on the evidence before the court in theprosecution of Mr. Thomas is not disputed. Similarly, Mr. Thomas concedes that in taking the Batteries, he intended to deprive Mr.McCurrach of them absolutely. To track the language of the subsection, Mr.

Thomas admits that, on August 31, 2014, he did “take” theBatteries with the “intent” to “deprive” Mr. McCurrach, “absolutely,” of them. That is, he removed them from Mr. McCurrach’sproperty and took them away, sold them to a third party and kept the money. By doing these things, Mr. Thomas eliminated anyprospect of recovery by Mr. McCurrach of the Batteries, and thus perfected Mr. McCurrach’s deprivation of them. [8] Nevertheless, to secure a conviction of Mr. Thomas for theft of the Batteries, the Crown must also prove the other requisitemental element of the offence, that being that he dispossessed Mr.

McCurrach of the Batteries “fraudulently and without colour ofright”. (For present purposes, the word “fraudulently” does not really add anything that is not already captured by the words “withoutcolour of right”: see, by analogy regarding the specific Criminal Code provision regarding theft of money, R. v. Skalbania, (SCC), [1997] 3 S.C.R. 995 at para. 6.) [9] In R. v. Manuel, 2008 BCCA 143 , [2008] B.C.J.

No. 557 (C.A.), Levine J.A. (Donald and Kirkpatrick JJ.A.concurring) held that colour of right is “an honest belief in a state of facts or civil law which, if it existed, would negate the mens rea forthe offence” (at para. 10). This definition was adopted by Frankel J.A. (Kirkpatrick and Goepel JJ.A. concurring) in the more recentdecision of the B.C. Court of Appeal in R. v. Hudson, 2014 BCCA 87. In that case, the court also (at para. 24) cited with approval thefollowing passage from R. v.

Dorosh, 2003 SKCA 134: “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: TheLaw of Theft and Related Offences [by Winifred H. Holland (Toronto: Carswell, 1998)] p. 153) or in a mistake in a state of facts. Themistake in each case must give rise to either an honest belief in a proprietary or possessory right to the thing which is the subject matterof 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.” (atpara. 18)

[10] Of course, essential to the colour of right analysis in a theft case like the one at bar is the distinction that must be drawnbetween the questions of whether an accused person had a legal right to take what he or she did, or whether the accused person honestlybelieved he or she had that right. It is the latter question that governs: see Hudson at para. 27 and Dorosh at para. 21.

Thus, proof of anhonest but mistaken belief on the part of an accused that he or she had the right to take property belonging to another can establish colourof right, vitiate the Crown’s proof of mens rea and lead to an acquittal in a theft prosecution. [11] While the cases differ in terms of the characterisation they give to colour of right—sometimes referring to it as a defence to theft—I would respectfully suggest that the better view is that: (

a) the onus always rests on the Crown to prove mens rea on the part of an accused charged with theft; and (

b) credible evidence of colour of right can prevent the Crown from meeting its burden of proving the requisite mens rea beyond areasonable doubt. Thus, in my respectful view, evidence of colour of right is more appropriately viewed as evidence that prevents the Crown from provingmens rea than as evidence supporting an affirmative defence. Viewing it that way removes the risk of an apparent or real transfer of theburden of proof to the shoulders of the accused. That is the perspective Southin J.A. adopted R. v. Hemmerbeck, [1991] B.C.J.

No.2673 (C.A.) (concurring, in part, with Locke and Gibbs, JJ.A.) when her Ladyship stated that “[a]s to the colour of right issue in theftcases, it is for the Crown to establish an absence of colour of right because of the wording of the Code” (emphasis added): see also, R. v.Shymkowich, (SCC), [1954] S.C.R. 606 and R. v.

Howson, (ON CA), [1966], 3 C.C.C. 348 (Ont.C.A.). [12] All of that said, while the onus of proving guilty intent beyond a reasonable doubt does and must always remain with the Crown,in most cases where the colour of right issue is actually raised, the accused person seeking to invoke it will face a de facto evidentiaryonus. In this regard, see R. v. Foidart, [2003] M.J.

No. 336 (C.A.) where Monnin J.A. (for the court) stated, at paras. 9-10: “An accused is of course not required to testify, but in some instances, that lack of testimony will prevent a trier of fact from coming tothe conclusion that is advocated on his or her behalf … Professor Winifred H.

Holland, The Law of Theft and Related Offences (Toronto: Carswell, 1998) writes: ‘Even though the burden is onthe Crown to prove that the accused lacked colour of right, it will only be a rare case where the accused would not be required to testify(at p. 154).’” [13] It should be noted that while, as the authorities referenced above show, the subjective state of mind of the accused is the focusof concern when a court seeks to determine whether mens rea in a theft offence has been made out by the Crown, objectiveconsiderations are not excluded altogether from the analysis when colour of right is invoked.

As the Ontario Court of Appeal in Howsonhas made clear, where an accused claims to have held an honest belief that is an objectively unreasonable one, that is a matter which atrial judge may consider in determining whether the claimed belief was, indeed, an honest belief: “Although the unreasonableness of a belief, when objectively considered, does not necessarily destroy the honesty of the belief, it maybe considered, along with other evidence in determining whether the Crown has established that a taking or a conversion was withoutcolour of right.

Certainly, it cannot alone be a ground for establishing that there was no colour of right. The issue requires, however,some evidence from the accused although the ultimate burden is on the Crown. ...” (at p. 365) [14] Howson has been cited with approval in British Columbia on a number of occasions, including in Manuel. [15] Based upon all of the foregoing I instruct myself as follows with regard to the issue of colour of right in the case at bar: (

a) In order to secure a conviction of Mr. Thomas, the Crown must prove, inter alia, the requisite mens rea for a theft offence beyond areasonable doubt; (

b) Mens rea for these purposes requires proof that Mr. Thomas: i. Knowingly took the Batteries from the top of the driveway at the McCurrach Home (conceded); ii. Knew that by taking and selling the Batteries from Mr. McCurrach, he would deprive Mr. McCurrach of them(conceded); and iii. Took the Batteries without an honest belief that the Batteries were free for the taking—that is, that Mr. Thomas didnot honestly believe that Mr. McCurrach had put the Batteries out for pickup by scavengers/binners or that he had disavowed anysubsisting possessory or proprietary interest in them; (

c) In order to prevent proof of mens rea against him, Mr. Thomas almost certainly faces a de facto evidentiary onus to call somedefence evidence to support and sustain his contention that he took the Batteries with colour of right; and (

d) In determining whether or not Mr. Thomas took the Batteries with an honest belief that Mr. McCurrach had put them out for pickupby scavengers/binners and had no subsisting possessory or proprietary interest in them, the court must consider the credibility of hisevidence as seen through the lens of the augmented test in R. v. W.D. Included among the factors that the court may consider whenassessing the credibility of Mr. Thomas’s contention that he honestly believed that the Batteries were free for the taking is the objectivereasonableness of his claimed belief in all the circumstances. MR.

THOMAS’S EXPLANATION [16] Reference has been made, above, to the de facto evidentiary onus that accused persons, like Mr. Thomas, almost always face

when they seek to invoke colour of right to defeat the Crown’s case against them in theft prosecutions on the issue of mens rea. As Ihave noted, Mr. Thomas did indeed give evidence with a view to persuading the court that at the time he took the Batteries from the topof the driveway of the McCurrach Home, he believed that those Batteries had been discarded and put out for pickup by himself as ascavenger/binner.

I must therefore recount his testimony in this regard, subject it to a credibility assessment and then determine whether—on the whole of the evidence—the Crown has met its burden and fully proven mens rea beyond a reasonable doubt (the colour of rightdimension of which is the only essential element of the theft offence that is in dispute). [17] Mr. Thomas’s evidence explaining his claimed belief that the Batteries had been discarded and put out for pickup by him wassomewhat elaborate; moreover, the version he gave during his examination-in-chief differed somewhat from what emerged under cross-examination.

I summarise the essential content of his explanation in both examinations below, and I then go on to consider thatexplanation in the context of the other evidence led at Mr. Thomas’s trial and in the context of "... the preponderance of the probabilitieswhich a practical and informed person would readily recognize as reasonable” in the circumstances: Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) at p. 357. Examination-in-Chief [18] Mr. Thomas testified that he lived close by in Mr.

McCurrach’s neighbourhood, that he had engaged in binning/scavengingthere for some time prior to the alleged offence date and that in the course of doing so he sometimes picked up discarded car batterieswhich had been left out by homeowners for pickup. He went on to say that on the day before the alleged offence date he was in theneighbourhood making his rounds and was asked by the elderly female tenant at a house four or five doors down from the McCurrachHome to assist her in emptying out a garage and removing items for which she had no use, including car batteries.

She offered him $20,plus the ability to take what items he wanted that were no use to her, for that assistance. [19] Mr. Thomas’s evidence was that he did assist the elderly woman in the clean-up of the garage and that she gave him permissionto take car batteries from her garage along with other items of value to him but which she did not want. He testified that, because he washungry after working all morning, he went home for lunch at about 12:00 noon—before being paid his $20 or taking away the items hehad salvaged from her garage with her permission.

It was his intention, he said, to come back afterward and conclude his dealings withthe elderly woman. Importantly, Mr. Thomas testified that, before leaving for lunch, he asked the elderly woman to notify others in theneighbourhood that he would be back later to finish and pick up any unwanted car batteries that her neighbours might have in the hopethat they would leave them out for him. He also stated that he had, many times previously, picked up discarded batteries that people inthe neighbourhood had left out for him after he had asked them to do so. [20] Significantly, it was Mr.

Thomas’s evidence during his direct examination that he didn’t know the name of the elderly womanhe had assisted and whom he had asked to notify neighbours to put out their discarded batteries. [21] Mr. Thomas went on to testify that when he eventually went to get his $20 payment from the elderly woman for cleaning outher garage, he was later than expected and found that the materials he was going to take for himself from her had been transported to thedump and that the elderly woman was no longer willing to pay him.

His evidence was that she wondered aloud to him then whether hewas the person who had been stealing items from the neighbourhood. [22] Mr. Thomas continued in his testimony to say that, the next day (i.e., on the offence date), he returned and collected ninebatteries left out by others in Mr. McCurrach’s neighbourhood before he got to the McCurrach Home.

He said he had left three of thelarger ones at a kind of staging area near the elderly woman’s house for pickup later; the other six were in his bicycle trailer which, hesaid, was starting to fill up and get heavy. [23] Somewhat surprisingly, while it was plain throughout the Crown’s case—including the video evidence of him taking twobatteries from the top of Mr. McCurrach’s driveway—that Mr. Thomas stands accused of stealing two batteries, he referred throughouthis direct examination to having taken only one. [24] In his evidence-in-chief, Mr.

Thomas described the location of the battery he took as being on the side of the driveway nearestthe lawn, and not further to the left where Mr. McCurrach’s truck, trailer and tools were located. He did not say anything to contradictthe other evidence, led during the Crown’s case, that the Batteries were situated at the top of the driveway (that is, the end of thedriveway nearest to the McCurrach home). Mr. Thomas further testified that he thought that the battery he took looked old, discardedand used, and that it didn’t have paper or a price tag attached it to suggest that it was new. [25] Mr.

Thomas acknowledged that he did not ask anyone for permission to take a battery from the driveway of the McCurrachHome before he took it. He explained that he did not feel the need to do so because of the request he had made of the elderly woman thepreceding day to have her neighbours put out discarded batteries for pickup—a request that he said, he believed (though didn’t know) shehad acted upon. [26] Mr. Thomas continued in his testimony to say that, after taking a battery from Mr.

McCurrach’s driveway, he took it to thestaging area where he then left all of the discarded batteries he had gathered for pickup later by his (Mr. Thomas’

s) wife in their van. Thereafter, Mr. Thomas said, he took them to a recycling depot where he received more than $100 for them. [27] Mr. Thomas also gave defence evidence about events that unfolded about a week later when one of Mr. McCurrach’sneighbours, Vincent Hudson (“Mr. Hudson”), accosted him as he rode past on his bicycle and accused him of being the thief who took abattery from Mr. McCurrach’s driveway. (Mr. McCurrach had circulated an extract from his surveillance system’s recording of Mr.Thomas removing the Batteries from his driveway and Mr. Hudson believed he recognised Mr.

Thomas as the person depicted in thatrecording.) [28] Mr. Thomas testified that he denied Mr. Hudson’s accusation and that there was a minor scuffle between them, following whichMr. Hudson held him until Mr. McCurrach arrived and pushed him down onto his bicycle trailer. Mr. Thomas’s description of what hesaid to Mr. McCurrach included denials of stealing a battery, an offer to pay Mr. McCurrach back for it if he (Mr. McCurrach) believedMr. Thomas had stolen it and a reference to his request to the elderly woman to ask neighbours to put their discarded batteries out for

pickup. He also testified that he suggested to Mr. McCurrach that he go and get the elderly woman because he believed she would vouch for him. Police were then summoned and, in due course, Mr. Thomas was arrested. It was Mr. Thomas’s evidence that he offered the arresting officer, Cst. Graham Love (“Cst. Love”), the same explanation regarding his request that the previously mentioned elderly woman alert homeowners in the neighbourhood to put discarded car batteries out for pickup by him. Cross-examination [ 29 ] Mr.

Thomas testified on cross-examination that the elderly woman for whom he provided clean-up assistance lived about two houses away from the McCurrach Home. He said that though he left the clean-up job he did for the elderly woman at midday to go home for lunch, he did not return to finish up and get paid until later that afternoon. It was then that Mr. Thomas found that she had had dispatched the batteries, copper and other items that he hoped to salvage to the dump, and it was then that the elderly woman refused to pay him because he hadn’t returned in time to finish the job. [ 30 ] Mr.

Thomas confirmed that when asking the elderly woman to tell neighbours to put out their discarded batteries for pickup, he had asked that she specify that the discarded batteries be put out near the curb “or a little bit more inside the yard” ( Trans. , January 15, 2016, at p. 51). He also agreed that if someone has left something “in their carport,” then the question of whether it has been put there for pickup is “a little bit more of a tough call” ( Trans. , January 15, 2016, at p. 52). Mr. Thomas further agreed that homeowners like Mr.

McCurrach are free to store their goods wherever they choose on their property ( Trans. , January 15, 2016, at p. 53). [ 31 ] It was Mr. Thomas’s further evidence under cross-examination that, before picking up, inter alia, the Batteries from the McCurrach Home, he did not check back to ensure that the elderly lady he had dealt with the day before had, in fact, asked neighbours to put out discarded batteries for pickup by him. Neither, he confirmed, did he check with Mr.

McCurrach before taking the Batteries from his property. [ 32 ] When explaining why he didn’t check back with the elderly woman to ensure that she had put the word out to the neighbourhood about his wish to collect discarded batteries as he had asked, Mr.

Thomas stated that when he returned to her house a few days later to collect payment for the work he had done for her she was “mean” and “rude” and so he “just didn’t deal with her anymore” ( Trans. , January 15, 2016, at p. 54). [ 33 ] When asked by Crown counsel whether, on reflection, it was reasonable to have expected the elderly woman to have acted on his wishes and asked others in the neighbourhood to put their discarded batteries out for pickup by him, given the hostility that she had shown toward him for not finishing the work he had begun for her in a timely way, Mr.

Thomas agreed that that was not a reasonable expectation: “Q Okay. So at the end of that day, I'm suggesting, you had no reason to believe that she would do you any favours, right? A The reason why I thought she would have done it because the neighbours were helping her and I was doing a really good job, more or less, so I said maybe she had told them. I wasn't really thinking the day when I took the batteries. I should have thought more of saying, "You know what? Maybe it wasn't left there for that reason," or more or less. And I -- I apologized to the guy that day and said, "You know what? I'm sorry.

I will pay you back for the batteries, it's just that I thought that lady there," and I pointed to the house, and I told him. Q So it wasn't -- you're agreeing with me that it wasn't reasonable for you to think that this lady would tell anybody to leave their batteries out? A Sitting here right now, not really .” ( Trans. , January 15, 2016, p. 55, emphasis added) [ 34 ] Further, and after some equivocation, Mr. Thomas conceded that at the time he took the Batteries from the McCurrach Home, he didn’t really turn his mind to the question of whether he had Mr.

McCurrach’s permission to take them. “Q You didn't address your mind for one second as to whether or not you had permission, do you agree with me? A I wasn't really thinking that day . Q Okay. You weren't really thinking. So you're agreeing with me that you had never addressed your mind to whether or not you had permission? You didn't even think about it? A No, because I thought, more or less, they had -- I had already talked to her and -- yeah. Q You had no reason to believe she actually did what you asked, right? A You know what? I thought she would.

I -- I thought she would, but -- I thought she would have earlier, when working with her and how genuine she was, but when it come back for her to pay me -- Q Then she -- A She just -- yes, and it was like -- Q So by that time you realized, and that was before you took the batteries, by that time you realized that this lady was going to do you no favours, right?

A I just think she didn't want to pay me. Q And you didn't have any reason to believe that she would do you any favours by telling her neighbours to leave batteries out so you could pick them up?

A Not, not at that moment, but earlier how she was talking and telling the guys, ‘Oh, this guy is a good worker, look how hard he's working,’ more or less, and she was talking to them, so I think more or less she -- and I ask her before I left to -- to mention to them that -- about the batteries, so I just think she had a change of heart in the afternoon when I came back because I didn't come back and help to load the truck, so she wouldn't pay me. Q So by -- by the time you came back she was -- you were in her bad books, as it were? A Yes.

Q And so you had no reason at that point to believe that she would do you any favours at all, right? A No. Q You're agreeing with me? A Yes. ” ( Trans. , January 15, 2016, p. 55-56, emphasis added) [ 35 ] During her cross-examination of Mr. Thomas, Crown counsel also questioned him regarding the part of the testimony of Cst. Love—the officer who arrested him a week after the Batteries were taken from the McCurrach Home—in which the police officer denied that Mr.

Thomas said anything at the time of his arrest about the circumstances surrounding the taking of the Batteries or his belief that the elderly woman had asked neighbours to put their discarded batteries out for pickup. Mr. Thomas responded to that questioning by saying that Cst. Love “wasn’t telling the truth”: Trans. , January 15, 2016, p. 57. Relevant Testimony of Other Witnesses a. Mr. McCurrach [ 36 ] When being examined in chief by Crown Counsel regarding Mr. Thomas’s detention by Mr. Hudson and his own interactions with Mr. Thomas after he went over to Mr. Hudson’s property where Mr. Thomas was detained, Mr.

McCurrach described what was said by Mr. Thomas at that time and made no mention of Mr. Thomas giving any explanation for taking the Batteries. In particular, Mr. McCurrach made no mention of Mr. Thomas referring to his request that an elderly woman ask people in the neighbourhood to put discarded batteries out for pickup by him. When it was put to Mr. McCurrach in cross-examination that Mr. Thomas had said, at that time, that he took the Batteries believing them to have been discarded, Mr. McCurrach said that he didn’t recall anything like that being said: Trans. , August 26, 2015, pp. 16-17. b. Mr.

Hudson [ 37 ] The accounts given by Mr. Hudson—the neighbour who first detained Mr. Thomas about a week after the offence date—and by Mr. McCurrach regarding what was said at the time of that detention once Mr. McCurrach arrived at Mr. Hudson’s front yard were not perfectly concordant. Those accounts differed somewhat in the details and so I approach them with a degree of caution. However, with respect to the issue of whether Mr. Thomas offered his explanation as to why he thought he was free to take the Batteries, their evidence was the same. [ 38 ] Mr. Hudson (like Mr.

McCurrach) was examined in chief by Crown counsel regarding what Mr. Thomas said after he detained him and Mr. McCurrach came over and accused him of stealing the Batteries. Mr. Hudson’s evidence in direct included no mention of Mr. Thomas’s claimed belief that the elderly woman had acted on his request to have homeowners in the neighbourhood put discarded batteries out for pickup: Trans. , August 26, 2015, pp. 21-22. Similarly, Mr. Hudson denied under cross-examination that Mr.

Thomas gave that, or any explanation, for his action in taking the Batteries from the driveway in front of the McCurrach Home: Trans. , August 26, 2015, p. c. Cst. Love [ 39 ] While the subject of what Mr. Thomas said in the presence of Cst. Love when he came and arrested him (after receiving an official caution) did not come up during the officer’s examination-in-chief, it did come up obliquely during cross-examination by defence counsel. Cst. Love’s evidence was that Mr. Thomas did not “discuss the incident with [him] at all about the items that were alleged to be stolen”: Trans. , January 15, 2016, p. 41.

Inconsistencies Noted [ 40 ] Mr. Thomas’s evidence regarding the exculpatory explanation he gave for taking the Batteries—an exculpatory explanation that is offered up in an effort to show that he had an honest belief that the Batteries were discarded by Mr. McCurrach and thus that he took them with colour of right—was both internally inconsistent and inconsistent with credible testimony given by other witnesses. [ 41 ] I begin by observing that it is passing strange that in a case that from the outset has been quite clearly concerned with the

alleged theft of two batteries, Mr. Thomas referred throughout his evidence-in-chief to taking only one from the McCurrach Home. Healso was at pains to describe that single battery as being old and discarded looking. Mr. Thomas shifted easily, however, to answeringquestions about two batteries when under cross-examination, and he made no acknowledgement of, or attempt to explain, thediscrepancy.

I would think that a person who had a clear recollection about what he was doing and why in circumstances where hisactions have resulted in a criminal charge would be able to keep basic details like the number of batteries he took with a claim of colourof right clear in his mind and his testimony. That he couldn’t do so here casts a shadow across Mr. Thomas’s credibility and reliability asa witness in his own case. [42] Mr.

Thomas’s evidence was also inconsistent on the issue of the timing of when he went back to the elderly woman’s house onan abortive mission to claim his $20 payment and pick up discarded batteries, copper and the other items he had selected for himselfwhen helping her clean out her garage. In his direct examination he said that he left the elderly woman’s house at about midday forlunch; while it was not said expressly, the clear inference to be taken from his evidence-in-chief was that he went back later that sameday, presumably after he had finished his lunch.

This inference is supported by his statement, under cross-examination, that beforeleaving for lunch he asked the elderly woman to request that her neighbours put out their batteries for pickup, and that upon returninglater in the afternoon he found that she was upset with him and wouldn’t pay him. “… and I ask her before I left to – to mention to them that – about the batteries, so I just think she had a change of heart in the afternoonwhen I came back because I didn’t come back and help to load the truck, so she wouldn’t pay me” (Trans., January 15, 2016, p. 56,emphasis added) [43] This timing squares with Mr.

Thomas’s agreement with Crown counsel when, in cross-examining him, she put to him theproposition that on the next day, when he took the Batteries from the McCurrach Home, he had no reason to believe that the elderlywoman “owed him any favours” or that she would have in fact fulfilled his request that she put the word out to her neighbours: Trans.,January 15, 2016, p. 56. [44] However, elsewhere in his cross-examination Mr.

Thomas testified that it was not until some days after he had done the clean-up work at the elderly woman’s garage that he went back to seek payment and found that she was upset with him: Trans., January 15,2016, p. 54. [45] These two discrepant versions of Mr. Thomas’s evidence regarding a simple fact—that is, the time when he was refusedpayment by the elderly woman and became aware of the animus she had developed toward him—are wholly irreconcilable. They cannotboth be true. Mr.

Thomas invoked the “some days later” version to explain why he didn’t check with the elderly woman again to ensurethat she had acted on his request that she ask neighbours to put their discarded batteries out for him before taking the Batteries from theMcCurrach Home (she was angry with him): see Trans., January 15, 2016, p. 54. While it may have seemed an effective parry to hiscross-examiner’s thrust on that particular point, Mr.

Thomas’s answer had the effect of roundly contradicting his other testimony that hewas denied payment and became aware of the elderly woman’s annoyance with him the same day he did the clean-up work at hergarage. Such opportunistic variability in Mr. Thomas’s testimony about a simple but ultimately important, contested fact leaves thiscourt troubled about his reliability and credibility as a witness in his own defence. [46] I come now to Mr. Thomas’s testimony to the effect that, when challenged as a thief, he told each of Mr. Hudson, Mr.McCurrach and Cst.

Love that he believed he was free to take the Batteries as discarded goods, based on the request he made to theelderly woman. He gave that evidence first in his direct examination and then repeated it during his cross-examination. I take it that thistestimony was intended to fortify the credibility of Mr. Thomas’s exculpatory explanation by showing that he did not first raise it at trialbut that he made reference to it at the first opportunity upon being accused of stealing the Batteries. [47] I pause here to observe that no objection was raised by Crown counsel at trial to Mr.

Thomas’s testimony that he offered up hisclaimed exculpatory explanation for taking the Batteries in out-of-court statements he made to Mr. Hudson, Mr. McCurrach and Cst.Love around the time of his arrest. Such hearsay statements (sometimes described as “oath-helping”) are presumptively inadmissible: R.v. Beland, (SCC), [1987] 2 S.C.R. 398 at para. 10. However, there are exceptions, including the exception accorded incircumstances where the prior consistent statements are offered to rebut an allegation of recent fabrication or concoction: see, forexample, Beland at para. 11 and, more recently, R. v.

Worme, [2016] A.J. No. 582 (C.A.) at para. 21. [48] R. v. Evans, (SCC), [1993] 2 S.C.R. 629 stands for the proposition that (as occurred in the case at bar) anexpress allegation of recent fabrication need not be made before rebuttal evidence in the form of a prior and consistent hearsay statementmay be led. [49] I consider it to be implicit in the way the present case unfolded that the prior consistent statements that Mr. Thomas testified hemade to Mr. Hudson, Mr. McCurrach and Cst.

Love—referencing his belief that he had “cleared” the taking of the Batteries by gettingthe elderly woman he had assisted earlier to ask homeowners in Mr. McCurrach’s neighbourhood to put their discarded batteries out forpickup by him—drew no objections from Crown counsel because they were manifestly led to rebut any contention the Crown mighteventually make that that exculpatory explanation was falsely and self-servingly concocted after the fact. I accordingly proceed now toconsider those admissible, prior consistent statements. [50] What I find is most remarkable about Mr.

Thomas’s insistence that he offered his exculpatory explanation to the Crownwitnesses is the fact that in their sworn testimony, not one of them—that is, neither the two civilians (Mr. Hudson and Mr. McCurrach)nor the one police officer (Cst. Love) to whom Mr. Thomas claims to have made them—recalls him saying anything of the kind either tothem or in their presence. All three of those Crown witnesses were clear in their testimony that Mr. Thomas said nothing to them abouthaving asked someone to arrange for people in Mr.

McCurrach’s neighbourhood to put their unwanted batteries out for pickup by him. [51] I will say that I cannot conceive of any motive that would lead any of those three Crown witnesses to give untruthful testimonyon that point. While the civilians in particular might be expected perhaps to turn a sceptical eye on Mr. Thomas’s claimed explanationand doubt its veracity, I cannot think of a reason why—if they heard him offer a dubious explanation—they would falsely testify thatthey did not. Clearly, the existence of Crown evidence from three otherwise credible witnesses that contradicts Mr. Thomas’s contention

that he made early mention of his claimed belief that he had taken steps to obtain de facto permission to take the Batteries calls that contention into serious doubt.

Objective Reasonableness [ 52 ] It will be recalled that, while an accused’s evidence going to the issue of colour of right need not be objectively reasonable, a court can nevertheless consider the objective reasonableness of that evidence in the course of determining whether the accused held “an honest belief in a state of facts or civil law which, if it existed, would negate the mens rea for the offence” (see Howson at p. 365 and Manuel at para. 10 ). [ 53 ] I have no hesitation in expressing the view that Mr. Thomas’s exculpatory explanation for his state of belief at the time he took the Batteries from Mr.

McCurrach’s driveway lacks objective believability: it simply “doesn’t make sense” when subjected, for example, to a Faryna v. Chorny assessment. [ 54 ] Mr. Thomas’s exculpatory explanation requires, inter alia , that the court accept both that: (

a) Leaving aside the elderly woman (who had an unspecified number of batteries to give him), Mr. McCurrach’s neighbours had no fewer than nine car batteries on hand that they wanted to get rid of at the time the elderly woman allegedly put out the word to her neighbours that they could put them out for pickup by Mr. Thomas; and that (

b) Mr. Thomas’s neighbours would actually leave discarded car batteries out near the curbs on their property overnight for pickup in response to such a request. [ 55 ] In both respects, Mr. Thomas’s evidence beggars belief. [ 56 ] First, I consider it unlikely that so many neighbours would have so many spent car batteries conveniently on hand at the time in August of 2014 when Mr. Thomas claimed he raised the subject with the elderly woman and was hoping to collect them. This is particularly unlikely when one considers that Mr.

Thomas testified to having collected spent car batteries “many times before” on Larch Way (Mr. McCurrach’s street): Trans., January 15, 2016, p. 45. How many car batteries can the homeowners in the Larch Way neighbourhood be burning through? Mr. Thomas would have the court believe that they were burning through a great number—a greater number than accords with ordinary experience. Mr. Thomas would also have the court believe that many of Mr. McCurrach’s neighbours routinely gave away the large number of spent batteries they burned through at a high rate, for free.

This, too, is a surprising suggestion, given the fact that car batteries present unique challenges for disposal and—according to Mr. Thomas’s own testimony— when taken into be recycled, the recycling service providers will pay “[a]nywhere from five to $20” each for them to those who drop them off: Trans. , January 15, 2016, p. 45. [ 57 ] Second, spent car batteries manifestly present certain hazards that other, more innocuous items that people might leave out for scavengers/binners (like bottles and cans) do not. They can contain a residue of electrical energy that can inflict harm.

They can contain battery acid, an indisputably noxious substance. By simply leaving their spent car batteries out near the curb at the ends of their driveways where anyone, including children, might come into contact with them, homeowners would not only disobey the dictates of common sense; they would also court liability for injury caused by batteries of the kind contemplated by the decision in Hughes v. Lord Advocate (1963), 1 All E.R. 705 (H.L.) : see, for example, Fox (Guardian ad litem of) v. Edwards , [2001] B.C.J. No. 370 (S.C.) . [ 58 ] Moreover, spent batteries can also cause environmental damage.

They are therefore governed by provisions in the Environmental Management Act , S.B.C. 2003, c. 53 , the Hazardous Waste Regulation , B.C. Reg. 63/88 as amended by B.C. Reg. 63/2009, and Bulletins issued by the B.C. Ministry of the Environment and on the Ministry’s “Product Stewardship” website for lead- acid batteries. Thus, by leaving spent car batteries out for pickup overnight in the way Mr. Thomas described, the homeowners in the Larch Way neighbourhood could potentially have run afoul of environmental legislation and regulations as well. [ 59 ] Would the people in Mr.

McCurrach’s neighbourhood leave spent batteries in surprising numbers at the ends of their driveways at regular intervals, given all of the aforementioned risks, all so Mr. Thomas could take them and pocket the “[a]nywhere from five to $20” that each would fetch at a recycling depot? In asking the court to believe that, Mr. Thomas asks too much. [ 60 ] I also do not consider that the defence submission that Mr. Thomas held an honest belief that he had Mr.

McCurrach’s permission to take the Batteries resonates with “the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable” in the circumstances in which Mr.

Thomas found himself when he committed the actus reus without having checked to ensure that the elderly woman had fulfilled his request regarding the putting out of discarded car batteries for pickup. [ 61 ] The case law that deals with colour of right sometimes refers to a duty of inquiry where, as here, the accused person invites the court to conclude that the impugned taking was innocent by reason of his or her honest belief that the goods which were the subject of the taking were abandoned.

In such circumstances the court will consider the quality of the indicia of abandonment alongside evidence of any steps taken by the accused to satisfy him - or herself that the goods were, indeed, abandoned in the course of determining whether the claimed belief was an honest one. [ 62 ] For example, in R. v. Bailey , [1997] N.B.J. No. 587 (Prov. Ct.) , the accused was charged with theft of certain form rails used in construction that he testified he believed had been abandoned.

Although he was acquitted on other grounds, the learned trial judge concluded that the accused was unable to invoke colour of right in his defence because he had not made the inquiries necessary, in the circumstances properly to confirm that the form rails had truly been abandoned. At paragraph 35, Brien P.C.J. stated: “… In my opinion, the accused can not claim a colour of right to the form rails.

Applying the broadest view of the term 'right', it is clear that the accused was reckless to proceed with such limited information and in my opinion, when faced with a situation which cried out for him to make some inquiries to identify the form rails and determine the authority to remove same, he failed to do so …”. [ 63 ] Even if Mr. Thomas had not had a falling out with the elderly woman before taking the Batteries from the McCurrach Home

(which, on one of his versions of events, he said he had), common sense dictates that checking with Mr. McCurrach before proceeding would have been a sensible way of ensuring that the Batteries were, indeed, discarded and put out for pickup before going further. Proceeding without checking in circumstances where there had been a falling out appears even more incautious.

That falling out, if in fact it did occur before the taking, made it even less likely that the elderly woman would have gone to the trouble to ask her neighbours to put their discarded batteries out for pickup by him, increasing the need for independent verification with Mr. McCurrach that the Batteries were indeed discards and had been put out for the taking. [ 64 ] The fact that, on his account, Mr.

Thomas went ahead without making those inquiries makes his exculpatory explanation highly suspect; his actions in the face of scant and unconfirmed indicia of abandonment stand far apart from what one would “readily recognise as reasonable” in the circumstances. Indeed, at one point in a pressing and effective cross-examination by Crown counsel, Mr. Thomas essentially admitted that, in all the circumstances, it wasn’t reasonable for him to have drawn any comfort from the steps he testified he believed had been taken by the elderly woman to clear the way for his taking of the Batteries. Indeed, Mr.

Thomas went so far as to admit that the comfort he claimed in his direct evidence to have taken from having asked the elderly woman to arrange for people in the neighbourhood put out their discarded batteries for pickup was not even present to his mind when he took the Batteries: see Trans. , January 15, 2016, pp. 55-56 and, in particular, the two exchanges reproduced below. “Q Okay. So at the end of that day, I'm suggesting, you had no reason to believe that she would do you any favours, right?

A The reason why I thought she would have done it because the neighbours were helping her and I was doing a really good job, more or less, so I said maybe she had told them. I wasn't really thinking the day when I took the batteries. I should have thought more of saying, "You know what? Maybe it wasn't left there for that reason," or more or less …” (at p. 55) * * * “Q So by -- by the time you came back she was -- you were in her bad books, as it were? A Yes. Q And so you had no reason at that point to believe that she would do you any favours at all, right? A No. Q You're agreeing with me?

A Yes.” (at p. 56) [ 65 ] The positioning of the Batteries—at the top of Mr. McCurrach’s driveway—also militates, on a common sense assessment, against Mr. Thomas’s contention that he believed they were discards and had been put out for pickup by himself as a scavenger/binner. [ 66 ] It will be recalled that Mr. Thomas testified that his appeal to the elderly woman for assistance with his plan included a request that she ask her neighbours to put their discarded batteries near the curb “or a little bit more inside the yard” ( Trans. , January 15, 2016, at p. 51). Yet, the uncontroverted evidence of Mr.

McCurrach establishes that the Batteries were not located anywhere near to the curb— rather, they were at the top of the driveway against the carport. That positioning—unlike the positioning Mr. Thomas claimed he had specified in his request to the elderly woman—does not suggest abandonment. It is difficult to accept, in the light of this evidence, that Mr. Thomas can have had an honest belief that batteries that he expected to be put out for pickup near the curb, but found in fact at the top of Mr. McCurrach’s driveway, had been discarded and left at the top of the driveway to be picked up. [ 67 ] R. v.

Wudrick , [1959] S.J. No. 96 (C.A.) is an early case in which the appellant had been convicted for theft of a couple of melons from a railway car that contained both good and rotting melons.

In allowing his appeal, the Saskatchewan Court of Appeal accepted that the appellant had taken the melons without the necessary mens rea and based that conclusion, in part, on the fact that the melons were found by the appellant grouped amongst other spoiled melons: “ … Surely if the accused went to the car with an intent to steal and with a knowledge that there were good melons in the car, he would have gone to the end of the car and selected good melons rather than taking from the pile of waste melons one apparently good melon and one melon at least partially spoiled.

His actions in this respect are in complete harmony with his explanation that he went to the car to get watermelons which he believed to have been abandoned and inconsistent with an intention to steal …” (at para. 56) [ 68 ] Similarly, in R. v. Konken , [1971] B.C.J. No. 647 (C.A.) , MacFarlane J.A. (for the majority) referred to the taking of a pump from an “area which contained abandoned cars and junk” (para. 2) as: “… an innocent taking in the sense that the appellant at the time believed it had been left where he found it as abandoned …” (at para. 3). [ 69 ] Mr.

Thomas cannot bring himself within the language of authorities like Wudrick or Konken because the positioning of the Batteries at the time he took them (at the top of Mr. McCurrach’s driveway) did not portend or betoken abandonment of them as discarded goods, even when measured against his own professed expectation that discarded batteries would be left out for him near the curb “or a little bit more inside the yard”. [ 70 ] While the decision of Osler, P.C.J., in R. v. Thanos , [1974] B.C.J. No. 941 (Prov.

Ct.) might be thought to be a contrary authority in this regard, in my view that decision turned on the learned trial judge’s determination of the credibility of an especially unique accused—an accused he described as a “guileless innocent” (at para. 12). Evangelos Thanos was prosecuted for taking coins thrown by passers-by into a fountain in Victoria—coins that were gathered up from time to time by the city and applied to charitable purposes. Judge Ostler acquitted him. His Honour recognised that, on an objective analysis, Mr.

Thanos’ explanation that he considered the coins to have been abandoned absolutely and his disavowal of cognizance of “ the universal custom of throwing coins into a ‘wishing well,’ from whence they are usually collected and given to charity” (at para. 12) did not withstand scrutiny. Nevertheless, for colour of

right purposes, Judge Ostler found that Mr.

Thanos held an honest belief that he could take the coins as being abandoned, “despite the fact that one would reasonably expect the accused to ask himself, why, if the coins were there for the taking, they had lain undisturbed for so long” (at para. 13). [ 71 ] The outcome in Thanos bears out the observation of Porter, C.J.O. (for the majority) in Howson that, while an objective assessment of evidence raising the issue of colour of right is perfectly permissible and appropriate, “ the unreasonableness of a belief, when objectively considered, does not necessarily destroy the honesty of the belief.” The acknowledged unreasonableness of Mr.

Thanos’s belief in his case, on the unique facts there before the court, was not sufficient to persuade Judge Ostler that that belief was a dishonest belief and so an acquittal was entered. [ 72 ] I do not consider Mr. Thomas, in the case at bar, to resemble Mr. Thanos in any way that matters; he did not impress the court as being anything like a “guileless innocent.” Rather, he came across as being a somewhat inept, but nevertheless worldly and savvy, individual who laboured to present an elaborate story to the court that he believed might exculpate him.

However, it was a story that lacked internal and external consistency and it changed as his trial progressed. Therefore, because the accused in Thanos and the case at bar differ so greatly from one another, and because the facts surrounding the credibility issues raised in the two cases differ so significantly as well, I find that Thanos offers little guidance to me in assessing Mr. Thomas’s proffered exculpatory explanation, either subjectively or objectively. CREDIBILITY ASSESSMENT AND CONCLUSIONS REGARDING MR.

THOMAS’S EXPLANATION [ 73 ] To summarise all of the foregoing, I have concluded that I cannot credit Mr. Thomas’s exculpatory explanation as being either truthful or reliable. If it had been truthful and reliable, his contention that he had an honest belief that Mr. McCurrach had put out the Batteries for pickup by him as a scavenger/binner would have interfered with the Crown’s ability to prove all of the mens rea elements necessary to secure a conviction of Mr. Thomas for theft of the Batteries. But the story he told simply does not withstand scrutiny. [ 74 ] Mr.

Thomas’s assertion that he believed the elderly woman had cleared the way for him to pick up the Batteries from Mr. McCurrach’s driveway suffered because: (

a) While faced with a charge of stealing two batteries, Mr. Thomas referred throughout his evidence-in-chief to having taken only one and throughout his cross-examination to having taken two—a strange factual inconsistency which has never been explained, is not easily explainable and which calls into doubt Mr. Thomas’s accuracy as a historian in a rather important area; (

b) Mr. Thomas failed to keep his story straight on the issue of the timing of when he went back to the elderly woman’s house and sought her assistance in alerting the neighbours to put out their discarded batteries for later pickup by him. On one telling it was later on the same day that he claimed he assisted her in emptying out her garage; on another telling it was several days later. If the latter is true, the interactions he claims gave him the comfort to proceed to remove the Batteries came days after he removed them. The dealings with the elderly woman are plainly of central importance to Mr.

Thomas’s case on colour of right and his failure to present coherent and consistent evidence on that subject calls his “story” into serious doubt and injures his credibility into the bargain; (

c) Mr. Thomas was unable to keep his story straight regarding the distance separating the alleged elderly woman’s house from the McCurrach home. On one telling (during his direct testimony) those locations were four or five houses apart; on another (during his cross-examination) they were only two houses apart. This, again, is a simple factual detail upon which one would not expect a truthful witness who lives in the neighbourhood himself to waver; (

d) Mr. Thomas sought to strengthen his case for invoking colour of right by testifying that he referred to his belief that the Batteries had been put out in response to his request that the elderly woman circulate word to the neighbourhood in that regard at the first opportunity when he was accosted and detained by Mr. Hudson and Mr. McCurrach. He also said he referred to that source of his belief that he was free to take the Batteries in the presence of his arresting officer, Cst. Love.

However, all three of those witnesses denied that he said anything on that subject—either in their interactions with him or in their presence—and I have no reason to doubt those denials or to think that the two civilian and one police witness would have any reason to falsely deny that Mr. Thomas referred to his exculpatory explanation (whatever they may have thought of it) if he did in fact refer to it; (

e) Mr. Thomas essentially admitted under cross-examination that at the time he took the Batteries, his professed reason for believing he was free to take them was not even present to his mind . This testimony of Mr. Thomas’s by itself struck a near-fatal blow to his ability to invoke his exculpatory explanation as a basis for an “honest belief” on his part that the Batteries were free for the taking, inasmuch as colour of right requires that Mr. Thomas have had that honest belief at the time he removed the Batteries from the top of Mr. McCurrach’s driveway; and (

f) Mr. Thomas’s proffered exculpatory explanation is objectively unreasonable on its face because, inter alia : i. It requires the court to accept that an elderly woman whom he had let down and who had refused to pay him for clean-up services would nevertheless still take the trouble on his behalf to go door-to-door through the Larch Way neighbourhood asking residents to put their unwanted car batteries out near the curb for pickup later by Mr. Thomas as a scavenger/binner; ii.

It requires the court to accept that other residents of the Larch Way neighbourhood burned through car batteries at an extraordinary rate and that they regularly put their spent batteries out for pickup by him at the ends of their driveways in circumstances that would present risks to others, including children, and would also deny them the ‘[a]nywhere from five to $20” each that the spent batteries command when turned in at a recycling depot; and

iii. By Mr. Thomas’s own admission, the Batteries were not where he expected discarded items of that kind to be—they were positioned at the top of the driveway for the McCurrach Home and not near the curb where discarded items would be more likely be left for pickup. Yet he took them anyway . Given the fact that, on his own account, there was reason to doubt that the elderly woman had acted on his request to alert the neighbours to put their discarded batteries out for pickup, one would expect that in the circumstances Mr. Thomas would have acted to dispel any uncertainty about the status of the Batteries and Mr.

McCurrach’s plans for them by making enquiries. He made no such enquiries. Mr. Thomas’s conduct on the offence date does not thus reflect the reasonably expected actions of a person who had the basis for belief he claims he had; it follows that that conduct calls into question his contention that he truly had an honest belief that Mr. McCurrach put the Batteries out for pickup for him as a scavenger/binner. [ 75 ] With specific reference to subparagraph (

f) above, I will state again that while the objective unreasonableness of defence evidence aimed at establishing colour of right does not destroy the honesty of belief of an accused (to track the language of Howson ) , I am nevertheless entitled to take into account objective unreasonableness in determining whether, at the relevant time, Mr. Thomas held an honest belief that the Batteries were free for the taking and that Mr. McCurrach had put them where they stood at the top of his driveway intending that they be collected by Mr.

Thomas as a neighbourhood scavenger/binner—in effect, renouncing any proprietary or possessory interest in the Batteries. [ 76 ] Under the augmented R. v. W.D. formulation referred to early in these reasons, in assessing the credibility of Mr. Thomas’s exculpatory explanation, I must have recourse to this protocol: (

a) If I believe the exculpatory evidence of Mr. Thomas, I must acquit him; (

b) If, after a consideration of all of the evidence I am unable to decide whether to believe the exculpatory evidence of Mr. Thomas or the Crown witnesses, I must acquit him; (

c) If I do not believe the exculpatory evidence of Mr. Thomas, but am left in reasonable doubt by it, I must acquit him; and (

d) Even if I am not left in reasonable doubt by the exculpatory evidence of Mr. Thomas, I must ask myself whether—on the basis of the evidence I do accept—I am convinced beyond a reasonable doubt by that evidence of Mr. Thomas’s guilt [ 77 ] Based upon all of the foregoing, I have found Mr. Thomas’s exculpatory explanation not to be credible or worthy of belief. Rather, I have reached the conclusion, contrary to his exculpatory evidence, that Mr. Thomas lacked an honest belief that the Batteries were free for the taking when he took them. In R. v. W.D. terms: (

a) I am not left with any reasonable doubt by Mr. Thomas’s exculpatory explanation; and (

b) I am satisfied, beyond a reasonable doubt, of Mr. Thomas’s guilt on the basis of the evidence I do accept. CONCLUSION AND DISPOSITION [ 78 ] It was and has always remained the Crown’s onus to prove beyond a reasonable doubt, inter alia , all of the mens rea elements necessary to support a conviction of Mr.Thomas for theft of the Batteries. The only issue in controversy in this prosecution was whether, in taking the Batteries, Mr. Thomas did so “fraudulently and without colour of right”. The evidence Mr.

Thomas gave concerning his exculpatory explanation invoked colour of right and was aimed at preventing the Crown from discharging its burden to prove mens rea . However, as I have explained, I have found that evidence not to be credible. Thus, Mr. Thomas’s exculpatory explanation failed to provide sustenance for the colour of right arguments that were advanced by his counsel on his behalf. [ 79 ] It follows from all of the foregoing that I find Mr. Thomas took the Batteries “fraudulently and without colour of right” and that, therefore, I must and do find him guilty of the offence of theft, contrary to s. 334 (

b) of the Criminal Code . [ 80 ] Order accordingly. ______________________ Thomas S. Woods, P.C.J.