BC Court of Appeal declines to allow colour-of-right defence based on Indigenous laws
July 21, 2025
BY Kevin Zakreski
R v Cavanaugh, 2025 BCCA 252, was an appeal from several convictions for criminal contempt. The convictions involved interfering with a Trans Mountain pipeline site in breach of an injunction. “The primary issue on appeal”, the court noted, was “whether the judge failed to take Indigenous laws into account when assessing the mens rea element of the offence and deciding to quash subpoenas issued by the appellants”.
The subpoenas were issued by the appellants to four Elected Chiefs. The court affirmed the trial judge’s finding that the evidence sought by the subpoenas wouldn’t be relevant to the issues at trial. The court added that the evidence would also have “amounted to a collateral attack on the validity of the injunction”.
The court then considered “whether it is open to an alleged contemnor to rely on a colour of right defence based on an honest belief that a law contradicting the injunction allowed them to engage in the impugned conduct, thereby negating the mens rea for criminal contempt”. In the court’s view, this amounted to a “live issue” because “the jurisprudence reflects some confusion on the availability of a colour of right defence of this type in a criminal contempt prosecution”.
The court declined to allow this defence for the following reasons:
[43] In my view, Davidson demonstrates that a colour of right defence based on an honest belief in a contradictory law is not available in a criminal contempt proceeding. Once the Crown proves the accused: (1) had knowledge of a court order prohibiting certain conduct; and (2) intentionally engaged in that conduct in a public manner, there can be no air of reality to the defence that the accused did not intend, know, or act recklessly as to whether that conduct would tend to depreciate the authority of the court even if they honestly believed that a law permitted the impugned conduct.
[44] At most, as in Davidson, the appellants in this case could say they honestly believed it was more important to follow a competing Indigenous law than to abide by the court order. But that cannot negate their knowledge that—or at a minimum recklessness as to whether—publicly contravening the court order would tend to depreciate the Court’s authority.
[45] It bears repeating that court orders must be obeyed. Indeed, it is in the interests of everyone that this rule be respected and enforced through the criminal contempt power.
[46] As this case demonstrates, court orders protect the legal interests of both Indigenous and non-Indigenous rights holders. The Secwépemc people entered into benefit agreements with Trans Mountain and want the project to proceed so that they can realize on the benefits they have contracted for. It is not for individuals, Indigenous or otherwise, to impose their own views about land use on other Indigenous groups by force. Those who disagree may express their views and engage in lawful protest, but are bound to respect court orders prohibiting them from interfering with the lawful rights of others.
In the result, the court dismissed the appellants’ appeals.
