TORONTO MISCHIEF DEFENCE LAWYER

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TORONTO MISCHIEF LAWYER

The Firm frequently handles High Profile allegations of mischief in Toronto. The severity of a mischief charge depends on the nature of the offence and the context in which it occurred. We have resolved a number of mischief allegations, often well in advance of trial and without a criminal record, achieving the best results. The Firm has defended a number of high profile mischief allegations, including its R. v. M.S. [2014], where it secured a withdrawal of all counts of mischief for a “streaker” at the Toronto Blue Jays Home Opener. The Firm has also defended a number of young people, including Art students, who have been apprehended tagging or spray painting public property.

A security guard chases down a streaker on the field as the Toronto Blue Jays play against New York Yankees during fifth inning AL baseball action in Toronto on Friday, April 4, 2014. THE CANADIAN PRESS/Peter PowerPresently, the offence of mischief is governed by s. 430 of the Criminal Code and differs substantially from the previous offence as it was described in the former s. 387. 387(1) defined mischief in relation to property and prohibited mischief to public and private property. When charged under s. 387(3), it was essential to identify and prove the property as public property. Now, the distinction between public and private property no longer exists.

The Firm has handled a number of property crimes in Toronto. In its R. v. P.S. [2016], the Firm secured a withdrawal of all charges of Mischief against the young offender who was charged with throwing a rock through a Mercedes windshield. The Firm secured a withdrawal of all counts of Mischief in its R. v. F.S. [2014], where the offender was caught spray painting parking signs in Toronto. It further secured a withdrawal of Mischief in its R. v. D.D. [2015], where the accused was caught slashing car tires. In the Firm’s R. v. C.M. [2015], the Firm secured a withdrawal where the accused threw water at slot machines at Toronto’s Woodbine Race Track.

The Firm has also defended allegations of Mischief in the context of other charges. In its R. v. K.C. [2015], the Firm defended a female with Impaired Driving charges who was subsequently charged with Mischief for clogging the toilet at the police station. In its R. v. A.W. [2017], the Firm secured a withdrawal of Mischief where a Toronto Teacher was caught using a fire extinguisher and pulling the Fire Alarm in a Toronto Condo, ultimately consuming nearly $5000.00 of Toronto Fire resources.

Frequently Asked Questions

What is the Difference Between Mischief Under $5,000 and Mischief Over $5,000?
What if the Damage was Caused Accidentally?
Can you still be Charged with Mischief Without Damaging Property?
Is Intoxication a Defence to Mischief?
What is the Difference between Mischief and Theft?

What is the Difference Between Mischief Under $5,000 and Mischief Over $5,000?

Section 430 of the Criminal Code sets out that mischief charges are classified as Mischief under $5,000 or Mischief over $5,000. The elements of the offence that the Crown must prove are the same for both, except for the monetary value of the mischief caused. For Mischief under charges, the Crown must prove the mischief in relation to property was under $5,000; and for Mischief over charges, the Crown must prove the mischief in relation to property was over $5,000.

The two offences also differ in terms of penalty. Section 430(3) sets out that Mischief over $5,000 is punishable by up to ten years imprisonment when the Crown proceeds by indictment. Comparatively, Section 430(4) sets out that Mischief under $5,000 is punishable by up to two years imprisonment when the Crown proceeds by indictment.

What if the Damage was Caused Accidentally?

If the damage was caused accidentally then the Crown will not be able to prove guilt beyond a reasonable doubt.

Section 430 of the Criminal Code expressly states that mischief is committed when an individual “willfully” engages in a prohibited act enumerated under Section 430(1). It is an express requirement that the actions of the accused person be “willful.” Wilful action requires that an individual knew his or her actions would cause damage. Therefore, accidental damage will not meet the standard of willfully damaging property.

Can you still be Charged with Mischief Without Damaging Property?

Yes, it is possible to be charged with mischief without damaging property. Section 430(1) sets out that there are four ways an individual can commit mischief. The first way is by destroying or damaging property. However, it is also possible to be charged with mischief if you:

  • Render property dangerous, useless, inoperative or ineffective;
  • Obstruct, interrupt or interfere with the lawful use, enjoyment or operation of property; or
  • Obstructs, interrupt or interfere with any person in the lawful use, enjoyment or operation of property.

Is Intoxication a Defence to Mischief?

No, intoxication is generally not a defence to mischief.

Mischief is a general intent offence, meaning the Crown only needs to prove the intention relates to the performance of the prohibited act in question. The Supreme Court of Canada ruled in Daviault that intoxication can only be a defence to a crime requiring general intent if the intoxication is so extreme that it creates an absence of awareness, akin to automatism or insanity.

There will only be evidence of such extreme intoxication in very few cases. The burden is on the accused to establish extreme intoxication on a balance of probabilities.

What is the Difference between Mischief and Theft?

The difference between mischief and theft is that theft requires someone to take or fraudulently convert the property of another person, whereas mischief concerns interference with another person’s property. With theft, an individual is actually taking or fraudulently converting property for his or her own use. Comparatively, with mischief a person does not actually take property from someone else; rather they are interfering with their property, most commonly by causing damage to that property through acts like vandalism. Mischief varies in levels of severity, from mischief causing actual danger to life to simple property damage.

Both mischief and theft require an individual to intend their actions. However, mischief is a general intent offence, whereas theft is a specific intent offence. Section 322(1) of the Criminal Code states that a person must intend to take or fraudulently convert property to be guilty of theft. Similarly, Section 430(1) of the Criminal Code states that every one who commits mischief must do so willfully.

However, the two offences also differ in terms of penalties. For the most serious type of mischief, causing actual danger to life, an individual can be imprisoned for life. Other forms of mischief can be proceeded by summary indictment or are punishable by up to ten years imprisonment when the Crown elects to proceed by indictment. Comparatively, theft is punishable by a term of imprisonment not exceeding ten years if the Crown proceeds by indictment. It is also possible for theft to be prosecuted summarily.

We handle a range of mischief and hate crime allegations, specifically in the context of young offenders.

416-DEFENCE | 416-333-3623

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