R. v. Kishayinew (T.), 2014 SKQB 393

• Judge: Pritchard, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: December 02, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKQB 393;(2014), 463 Sask.R. 193 (QB)

R. v. Kishayinew (T.) (2014), 463 Sask.R. 193 (QB)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. DE.074

Terry Kishayinew (appellant) v. Her Majesty the Queen (respondent)

(2014 CRIM No. 12; 2014 SKQB 393)

Indexed As: R. v. Kishayinew (T.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Yorkton

Pritchard, J.

December 2, 2014.

Summary:

During an altercation with his spouse, the accused threw a laptop computer, damaging it. The trial judge convicted the accused of mischief (s. 430(4) of the Criminal Code) in connection with the laptop. The accused appealed. While he admitted damaging the laptop, the accused asserted that there was a reasonable doubt as to whether he had committed the actus reas of the offence with colour of right.

The Saskatchewan Court of Queen's Bench allowed the appeal. The conviction was set aside.

Criminal Law - Topic 214.1

General principles - Common law defences - Colour of right - During an altercation with his spouse, the accused threw a laptop computer, damaging it - The trial judge convicted the accused of mischief (s. 430(4) of the Criminal Code) in connection with the laptop - The accused appealed - While he admitted damaging the laptop, the accused asserted that there was a reasonable doubt as to whether he had committed the offence with colour of right - The Saskatchewan Court of Queen's Bench allowed the appeal - The accused's evidence was that he had purchased the laptop with his money, while his spouse said that the accused had purchased the laptop with her money - The trial judge had not preferred one version over the other but had simply concluded that because each had an interest in the laptop, the accused had committed mischief in damaging it - It was not entirely unreasonable that a person who had purchased a laptop would honestly believe that he owned it and was entitled to dispose of or damage it even if it had been purchased for the spouse's primary use - The laptop was damaged with colour of right - The conviction was set aside.

Criminal Law - Topic 2254

Wilful acts respecting property - Mischief - Defences - Justification or colour of right - [See Criminal Law - Topic 214.1 ].

Cases Noticed:

R. v. Freeman (J.) et al. (2009), 334 Sask.R. 15; 2009 SKPC 36, refd to. [para. 7].

R. v. Hajek, 2009 ONCJ 75, refd to. [para. 17].

R. v. Ferguson (T.J.) (2005), 389 A.R. 366; 2005 ABQB 156, refd to. [para. 20].

R. v. Surette (J.R.W.) (1993), 123 N.S.R.(2d) 152; 340 A.P.R. 152 (C.A.), refd to. [para. 20].

Counsel:

D. Rusnak and J. Niedzielski, for the appellant;

D. Grindle, for the respondent.

This appeal was heard by Pritchard, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Yorkton, who delivered the following judgment on December 2, 2014.