IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Not long after 6:00 a.m. on August 31, 2014, the accused Kevin Craig Thomas (“Mr. Thomas”) walked to the top of the driveway 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 to the street, placed them in a small makeshift trailer attached to his bicycle, rode away and eventually sold them.  The McCurrach Home is equipped with a video surveillance system and in the recording captured by that system on the alleged offence date, Mr. Thomas can be clearly 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 as he did, Mr. Thomas intended to deprive Mr. McCurrach of them absolutely.  Indeed, counsel are agreed that the only issue in this prosecution of Mr. Thomas for alleged theft of property of a value less than $5,000, contrary to s. 334(b) of the Criminal Code, is whether in taking the Batteries Mr. Thomas acted “fraudulently and without colour of right" and, thus, had all of the mens rea necessary to found a conviction for theft of the Batteries.  Put more simply, the central question this case raises is: Did Mr. Thomas (as his counsel submits) have 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 him as a neighbourhood scavenger/binner[1]—in effect, renouncing any proprietary 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 establishes that in placing them at the top of his driveway, he did not renounce those interests, nor did he intend that Mr. Thomas or any other scavenger/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 the issue of colour of right, make findings of fact and then apply the governing law to those facts.  Insofar as Mr. Thomas gave defence evidence that speaks directly to colour of right and which the Crown submits I should reject as not being credible, I must also subject that defence evidence to a credibility assessment which is guided by the formulation handed down by the Supreme Court of Canada in R. v. W.D., 1991 CanLII 93 (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), 1991 CanLII 3956 (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 the defence raised to it are considerable.  Accordingly, I have found that in carrying out the necessary legal analysis in this case I have had to cover more ground than expected.  However, like every accused person, Mr. Thomas is entitled to the benefit of the presumption of innocence and—even in a case where the value of what he is alleged to have stolen is comparatively low—Mr. Thomas (and indeed, the public at large) can and should expect the court to chart a clear and intellectually defensible pathway through all of the twists and turns of the 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 will review the evidence and make factual findings to which I will then apply that law.

[6]           Section 322 of the Criminal Code defines the offence of theft and the language of that section that is engaged by the present prosecution is found in s. 322(1)(a) which reads:

[7]           As I have noted, that the Crown has established the actus reus of a theft offence on the evidence before the court in the prosecution 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” the Batteries with the “intent” to “deprive” Mr. McCurrach, “absolutely,” of them.  That is, he removed them from Mr. McCurrach’s property and took them away, sold them to a third party and kept the money.  By doing these things, Mr. Thomas eliminated any prospect 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 requisite mental element of the offence, that being that he dispossessed Mr. McCurrach of the Batteries “fraudulently and without colour of right”.  (For present purposes, the word “fraudulently” does not really add anything that is not already captured by the words “without colour of right”: see, by analogy regarding the specific Criminal Code provision regarding theft of money, R. v. Skalbania, 1997 CanLII 337 (SCC), [1997] 3 S.C.R. 995 at para. 6.)

[9]           In R. v. Manuel, 2008 BCCA 143 (CanLII), [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 for the offence” (at para. 10).  This definition was adopted by Frankel J.A. (Kirkpatrick and Goepel JJ.A. concurring) in the more recent decision 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 the following passage from R. v. Dorosh, 2003 SKCA 134:

[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 drawn between the questions of whether an accused person had a legal right to take what he or she did, or whether the accused person honestly believed 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 an honest but mistaken belief on the part of an accused that he or she had the right to take property belonging to another can establish colour of 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:

[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 evidentiary onus.  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:

[13]        It should be noted that while, as the authorities referenced above show, the subjective state of mind of the accused is the focus of concern when a court seeks to determine whether mens rea in a theft offence has been made out by the Crown, objective considerations are not excluded altogether from the analysis when colour of right is invoked.  As the Ontario Court of Appeal in Howson has made clear, where an accused claims to have held an honest belief that is an objectively unreasonable one, that is a matter which a trial judge may consider in determining whether the claimed belief was, indeed, an honest belief:

[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:

[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 I have noted, Mr. Thomas did indeed give evidence with a view to persuading the court that at the time he took the Batteries from the top of the driveway of the McCurrach Home, he believed that those Batteries had been discarded and put out for pickup by himself as a scavenger/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 right dimension 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 was somewhat 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 that explanation in the context of the other evidence led at Mr. Thomas’s trial and in the context of  "... the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable” in the circumstances: Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) at p. 357.

[18]        Mr. Thomas testified that he lived close by in Mr. McCurrach’s neighbourhood, that he had engaged in binning/scavenging there for some time prior to the alleged offence date and that in the course of doing so he sometimes picked up discarded car batteries which 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 the neighbourhood making his rounds and was asked by the elderly female tenant at a house four or five doors down from the McCurrach Home 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 permission to 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 was hungry after working all morning, he went home for lunch at about 12:00 noon—before being paid his $20 or taking away the items he had salvaged from her garage with her permission.  It was his intention, he said, to come back afterward and conclude his dealings with the elderly woman.  Importantly, Mr. Thomas testified that, before leaving for lunch, he asked the elderly woman to notify others in the neighbourhood that he would be back later to finish and pick up any unwanted car batteries that her neighbours might have in the hope that they would leave them out for him.  He also stated that he had, many times previously, picked up discarded batteries that people in the 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 woman he 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 out her garage, he was later than expected and found that the materials he was going to take for himself from her had been transported to the dump and that the elderly woman was no longer willing to pay him.  His evidence was that she wondered aloud to him then whether he was 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 nine batteries left out by others in Mr. McCurrach’s neighbourhood before he got to the McCurrach Home.  He said he had left three of the larger 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, he said, 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 two batteries from the top of Mr. McCurrach’s driveway—that Mr. Thomas stands accused of stealing two batteries, he referred throughout his 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 nearest the lawn, and not further to the left where Mr. McCurrach’s truck, trailer and tools were located.  He did not say anything to contradict the other evidence, led during the Crown’s case, that the Batteries were situated at the top of the driveway (that is, the end of the driveway nearest to the McCurrach home).  Mr. Thomas further testified that he thought that the battery he took looked old, discarded and 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 McCurrach Home 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 the preceding day to have her neighbours put out discarded batteries for pickup—a request that he said, he believed (though didn’t know) she had 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 the staging 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’s neighbours, Vincent Hudson (“Mr. Hudson”), accosted him as he rode past on his bicycle and accused him of being the thief who took a battery 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 that recording.)

[28]        Mr. Thomas testified that he denied Mr. Hudson’s accusation and that there was a minor scuffle between them, following which Mr. Hudson held him until Mr. McCurrach arrived and pushed him down onto his bicycle trailer.  Mr. Thomas’s description of what he said to Mr. McCurrach included denials of stealing a battery, an offer to pay Mr. McCurrach back for it if he (Mr. McCurrach) believed Mr. 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.

[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:

[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.

[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.

[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.

[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.

[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.

[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.  He also was at pains to describe that single battery as being old and discarded looking.  Mr. Thomas shifted easily, however, to answering questions about two batteries when under cross-examination, and he made no acknowledgement of, or attempt to explain, the discrepancy.  I would think that a person who had a clear recollection about what he was doing and why in circumstances where his actions have resulted in a criminal charge would be able to keep basic details like the number of batteries he took with a claim of colour of 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 as a 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 on an abortive mission to claim his $20 payment and pick up discarded batteries, copper and the other items he had selected for himself when helping her clean out her garage.  In his direct examination he said that he left the elderly woman’s house at about midday for lunch; while it was not said expressly, the clear inference to be taken from his evidence-in-chief was that he went back later that same day, presumably after he had finished his lunch.  This inference is supported by his statement, under cross-examination, that before leaving for lunch he asked the elderly woman to request that her neighbours put out their batteries for pickup, and that upon returning later in the afternoon he found that she was upset with him and wouldn’t pay him.

[43]        This timing squares with Mr. Thomas’s agreement with Crown counsel when, in cross-examining him, she put to him the proposition that on the next day, when he took the Batteries from the McCurrach Home, he had no reason to believe that the elderly woman “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 refused payment by the elderly woman and became aware of the animus she had developed toward him—are wholly irreconcilable.  They cannot both be true.  Mr. Thomas invoked the “some days later” version to explain why he didn’t check with the elderly woman again to ensure that she had acted on his request that she ask neighbours to put their discarded batteries out for him before taking the Batteries from the McCurrach Home (she was angry with him): see Trans., January 15, 2016, p. 54.  While it may have seemed an effective parry to his cross-examiner’s thrust on that particular point, Mr. Thomas’s answer had the effect of roundly contradicting his other testimony that he was denied payment and became aware of the elderly woman’s annoyance with him the same day he did the clean-up work at her garage.  Such opportunistic variability in Mr. Thomas’s testimony about a simple but ultimately important, contested fact leaves this court 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 the elderly woman.  He gave that evidence first in his direct examination and then repeated it during his cross-examination.  I take it that this testimony was intended to fortify the credibility of Mr. Thomas’s exculpatory explanation by showing that he did not first raise it at trial but 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 his claimed 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, 1987 CanLII 27 (SCC), [1987] 2 S.C.R. 398 at para. 10.  However, there are exceptions, including the exception accorded in circumstances where the prior consistent statements are offered to rebut an allegation of recent fabrication or concoction: see, for example, Beland at para. 11 and, more recently, R. v. Worme, [2016] A.J. No. 582 (C.A.) at para. 21. 

[48]        R. v. Evans, 1993 CanLII 102 (SCC), [1993] 2 S.C.R. 629 stands for the proposition that (as occurred in the case at bar) an express allegation of recent fabrication need not be made before rebuttal evidence in the form of a prior and consistent hearsay statement may 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 he made to Mr. Hudson, Mr. McCurrach and Cst. Love—referencing his belief that he had “cleared” the taking of the Batteries by getting the elderly woman he had assisted earlier to ask homeowners in Mr. McCurrach’s neighbourhood to put their discarded batteries out for pickup by him—drew no objections from Crown counsel because they were manifestly led to rebut any contention the Crown might eventually make that that exculpatory explanation was falsely and self-servingly concocted after the fact.  I accordingly proceed now to consider 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 Crown witnesses 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 to them or in their presence.  All three of those Crown witnesses were clear in their testimony that Mr. Thomas said nothing to them about having 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 testimony on that point.  While the civilians in particular might be expected perhaps to turn a sceptical eye on Mr. Thomas’s claimed explanation and doubt its veracity, I cannot think of a reason why—if they heard him offer a dubious explanation—they would falsely testify that they 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.

[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:

[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:

[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.

[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:

[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:

[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.

[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:

[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:

[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:

[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.