WHAT ARE DEFENCES TO MISCHIEF UNDER $5000?
The best defence in any criminal case will depend largely on the particular facts of the case. A common way to defend a mischief charge is to argue that the property that was damaged belonged solely to the accused. This is called the Colour of Right defence and essentially means the accused had the right to damage or destroy the property. To successfully utilize this defence the accused must satisfy the Court that the property belonged solely to the accused. In situations where the accused mistakenly believed they had a right to damage or destroy the property, this defence may also be successful. In those situations, the accused must satisfy the Court that the accused had a genuine belief that the property belonged to them at the time it was damaged or destroyed.
It should be noted that the Colour of Right defence will not be successful if the property was property located inside a matrimonial home. Regardless of who paid for the property, property that is stored inside a matrimonial home will be considered jointly owned by both members of the couple. Damaging or destroying property inside a matrimonial home is considered domestic mischief and is discussed in more detail in the next section. Further, the Colour of Right defence will not be successful if the mischief that was committed was intended to defraud. For example, an individual who damages their vehicle to collect insurance funds will be guilty of both insurance fraud and mischief, regardless of the fact that they may have been the sole owner of the vehicle.
Another possible defence for a mischief allegation is to argue that the damage done was so insignificant that a criminal conviction is not warranted in the circumstances. This defence will only be possible where the damage that was done was non-existent or minimal. This defence can similarly be used in when the allegations of mischief involve property that has been interfered with or rendered inoperative. In these situations, the defence may argue that a conviction is not warranted because the interference caused only a minor inconvenience. This defence will only be available where the charge is mischief under $5,000.
When a mischief charge results from an interaction between a non-platonic couple, it will often be considered a domestic violence incident by police and the Crown. In many cases, there are no other allegations of violence. A mischief charge in the context of a domestic relationship can occur when property belonging to both individuals has been damaged or destroyed. In situations where the couple is married, virtually anything inside the matrimonial home will be considered matrimonial property. If this property is damaged by one of the individuals without the consent of the other individual, the first individual has committed the offence of domestic mischief. In situations where the couple are not married, domestic mischief will occur where one individual damages or destroys something belonging to the other individual. It is important to note that virtually any intimate relationship between two individuals, whether serious or casual will be considered a domestic relationship by police and the Crown. The individuals do not have to cohabitate to be considered to be in a domestic relationship.
In most jurisdictions in Ontario, when a criminal incident has been classified as a “domestic” incident, it will be dealt with differently than non-domestic incidents. Many courthouses have domestic courtrooms that deal with only domestic related offences. Further, the Crown Attorney’s Office in many jurisdictions has developed specialized procedures for dealing with domestic incidents and in some areas Special Crown Attorney’s are assigned to handle all domestic cases.
Due to these specialized procedures, police often have very little discretion regarding whether or not to lay charges. Those who have been charged will often have onerous conditions placed upon their release. Bail conditions for those who have been accused of a domestic related incident will almost always include a no contact order between the accused and the alleged victim. This means that the couple will not be able to communicate with one another until the case has resolved or until otherwise ordered by the Court. In addition to more onerous release conditions, Crowns tend to prosecute domestic offences more rigorously than non-domestic offences.
Defending Domestic Mischief Charges
The best defence in any case will always depend largely on the facts of that particular case and the position the Crown has taken. In any case the Crown will review the facts of the case at the outset to determine how serious the allegations are and the best way to proceed.
In addition to learning the facts of the case the Crown will also look at the aggravating and mitigating factors present and use these factors to help in their determination of how to proceed. Common aggravating factors include; the severity of the damage caused, the value of the damage cause, whether or not the items that were damages were irreplaceable or sentimental, prior criminal history, lack of remorse and whether or not children were present at the time. Common mitigating factors include; lack of prior criminal history, exhibiting remorse, accused’s willingness to attend counseling or therapy to address their issues, youthfulness, potential immigration, education or employment consequences that may result if a conviction is entered, whether or not the accused was alone during the incident and the victim indicating to the Court that they do not fear the accused and wish to regain contact.
In some situations where the accusations are less serious or where there are mitigating factors present, the Crown may agree to withdrawal the charges if certain conditions can be met by the accused. Generally, these conditions involve the accused attending counselling or therapy to address the underlying issues that caused them to offend. If the Crown is ultimately satisfied that the accused has addressed their underlying issues, they may agree to withdrawal the charges.