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Defend mischief Charges

Crime Statistics

In 2021, Statistics Canada reported in their Incident-based crime statistics, by detailed violations across jurisdictions in Ontario. There were 54,513 cases of mischief in Ontario. Toronto accounted for more than half of hate-motivated mischief incidents in the province. Though mischief is a common offence, hate-motivated mischief is less frequent and appears to have an upward trend in Toronto.

Mischief Under $5000 Incidents in 2021
Unfounded Incidents of Mischief
Number of Adults Charged in Ontario
Hate Motivated Mischief Incidents

Our Experience

The Firm is experienced in handling high-profile mischief allegations in Toronto, navigating the severity of charges based on the offence’s nature and context. We’ve successfully resolved numerous cases before trial, ensuring our clients avoid a criminal record. Notably, in R. v. M.S. [2014], we achieved a complete withdrawal of all mischief counts for a “streaker” at the Toronto Blue Jays Home Opener. Additionally, we’ve defended young individuals, such as art students, caught tagging or spray painting public property.

The Firm has handled a number of property crimes in Toronto. 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. It was alleged the accused was intoxicated at the time, disturbing other patrons and damaging property. He was charged with Mischief Under $5000 and there was surveillance putting him at the scene. The Firm was able to raise certain mental health issues and negotiate a resolution with the casino which led to the withdrawal of the charges.

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. The Crown attempted to recover the emergency response costs from the accused who was caught on video surveillance committing the act while intoxicated. The Firm was also able to protect his license in the process since he was a member of the Ontario College of Teachers.

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. The driver was under investigation for impaired driving and was angry at being in custody. She was caught on video in the cell damaging police property, attempting to flood her cell with the toilet. Although a minor charge, it aggravated the defence and complicated the number of charges to be defended.

Stages of the Criminal Justice System

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In 2018, after nearly 2 years of litigation, the Firm secured a withdrawal of Arson – Disregard for Human Life in its R. v. A.T. [2018], where the offender was facing up to life imprisonment after an extensive investigation between Toronto Police and the Toronto Fire Marshall. It was alleged the accused nearly burnt down an apartment building in Toronto with 75 units and caused over $100,000.00 in damage. The Firm defeated the allegation by challenging the Crown expert witness and Fire Marshall’s conclusions about the source and origin of the fire. This particular case is an extreme example of mischief a the potential harm these behaviours can cause to the public. The Firm was also able to protect the accused from civil damages which were initially being sought against her for the damage she allegedly caused.

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Frequently Asked Questions

What will Happen after you are Charged with Mischief in Toronto?

Mischief offences under the Criminal Code carry a wide range of penalties, depending on the nature of the mischief. The nature of the mischief committed will also impact how the accused’s case will proceed through the justice system. Typically, when an individual is accused of committing an offence, including a mischief offence, the police will launch an investigation into the matter to determine if there is enough evidence to lay a charge. Police will lay the charge if there is some evidence that would suggest the accused is guilty and could be convicted. If they believe there is some evidence against the accused, they will lay the charge and the file will be transferred to the Crown’s office to be prosecuted.

Once the file reaches the Crown’s office, the Crown will review it during a two-stage process. The first process is called vetting. During the vetting process the Crown will review the disclosure material to remove any sensitive information including contact information of the complainant and any witnesses in the case. Next, the Crown will screen the file, determining what sentence they would offer if the accused pled guilty. The screening process will assist the accused in getting a better understanding of the possible outcomes of their case.

Once the Crown has completed the vetting and screening process, the disclosure material will be made available to the accused. This could be just before the first appearance date, but often comes after. Once disclosure is received, the accused and/or their lawyer should review it for potentially deficiencies in the Crown’s case as well as potential defences for the accused. It is advisable to consult with legal counsel when reviewing disclosure material to ensure nothing is missed. After disclosure is analysed, it will be time to discuss the case with the Crown during what are known as Crown pre-trial negotiations. In some cases, the case may be resolved during the pre-trials. If a resolution cannot be reached, the file will be set down for a trial.

What Are Some Penalties for Mischief?

Different types of mischief have different types of penalties. There are no mandatory minimums aside from subsection 430(4.11), which is mischief regarding war memorials. If a person commits a mischief under subsection 430(4.11), they may be subject to a minimum penalty of $1,000 fine (without a prior record), 14 days in prison (with one prior conviction), or 30 days in prison (with two or more convictions.) If mischief relating to war memorials was prosecuted by indictment, the maximum penalty is ten years, while the maximum penalty for summary conviction is two years less a day.

Most offences under section 430 of the Criminal Code are hybrid offences that do not have a minimum penalty. Mischief over $5,000 (subsection 430(4)) if prosecuted by indictment is two years maximum incarceration. If proceeded by summary conviction, the maximum penalty is two years less a day and/or a $5,000 fine for mischief other than testamentary instruments or value exceeding $5,000, mischief over $5,000, mischief to computer data, and mischief by omission. If the mischief caused danger to life, it is a straight indictable offence and may be subject to life incarceration.

Consequences of a Criminal Record

What are Some Ancillary Orders Associated with Mischief in Toronto?

Most ancillary orders associated with mischief are ordered on the discretion of the judge. For example, a non-communication order while offender is in custody (s. 743.21) may be entered by the judge if the judge decides that the offender should not contact any witness, victim, or any other party while in custody. A restitution order pursuant to section 738 may be available upon the order of a judge to replace the value of the property.

A DNA order is an order by the Court to collect an offender’s DNA sample and enter it into the national database. This helps police eliminate suspects and arrest future offenders. The entering of a DNA order is decided based on whether the offence is a primary designated offence or a secondary designated offence. Offences that are designated as primary are usually crimes that the Crown has a high public interest in prosecuting. The offences of mischief causing danger to life, mischief by omission causing risk to life and mischief of value exceeding $5,000 are secondary designated offences. This means that the judge has the discretion on whether to enter a DNA order.

Does the Value or Type of Property Matter?

The value or type of the property does matter in cases of mischief. Following from the above, different types of mischief are prosecuted and sentenced differently. The way the mischief occurs (such as mischief by omission of duty) also matters. The Court will consider all relevant factors of the case and the unique circumstances of the offender before entering a sentence. The higher the value of the damage caused, the more likely it is that the court will impose a higher penalty. Similarly, where the property damaged has high cultural or religious significance, the court may impose a more severe penalty.

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Recent Cases

Her Majesty the Queen v. Mathieu Coderre, 2022 ONSC 528

In the Ontario Supreme Court of Justice case of R. v. Coderre, the appellant pled guilty to mischief under $5,000. The complainant had parked in an underground parking garage and left her car’s rear several feet out of the spot. The appellant had the parking spot next to the complainant’s and vandalized her car. All four of the complainant’s tires were slashed, the drivers’ side gas door was ripped off, white sauce and pasta were smeared all over the front grill and driver’s side window and scratched the message “move car” into the paint on the side of the car. In addition, he smeared more pasta sauce on the other windows, and wrote “I am an idiot” in the vehicle’s rear window. The total monetary worth of the damage is estimated to be around $800.

The appellant had a suspended sentence with probation, the defence appealed for a conditional discharge. The appellant argued that the principle of restraint should be emphasized. However, the appellate Court did not agree, as sentencing principles should be weighed by the discretion of the trial judge. The appeal was dismissed, and the appellant’s suspended sentence with 12 months’ probation was upheld.

R. v. Popova, 2023 ONCJ 331

In the Ontario Court of Justice case of R. v. Popova, the defendant pled guilty to arson disregard human life, failure to comply with a release order, and mischief. During the autumn of 2022, the defendant set fire and damaged multiple properties, including properties where she was on a release order not to attend.

The defendant has no prior record, struggled with Polysubstance Use Disorder, and Substance Induced Psychosis. She was under the influence when she committed the offences. She has skills, significant work experience, some education, and family support.

The Court considered the aggravating factors of: starting 11 fires in two days, around residential areas where vulnerable persons lived, she did not warn anyone about the fires, created numerous dangerous situations with the fires, and was out on bail when the offences were committed. The Court also considered the offender’s personal circumstances and mitigating factors of the first-time offence, the guilty plea, and family support. The offender was sentenced to a conditional sentence of 14 months, a 3 year probation order, as well as the ancillary orders of a DNA order and a weapons prohibition for 10 years.

R. v. Elliott, 2020 ONCJ 134

In the Ontario Court of Justice case of R. v. Elliott, the accused pled guilty to one count of mischief under $5,000. She had written an Islamophobic phrase on the front door of a bakery owned by people from Iran. When arrested, the offender immediately confessed and expressed sincere remorse.

The Crown submitted that the aggravating factors in this case would require a three month conditional sentence. However, the Court also must recognize the mitigating factors of the first-time offence, the guilty plea, and the sincere remorse. The accused had wished to apologize to the victims but was forbidden by the authorities to do so. The accused suspect that she was not in a proper state during the commission of the crime, as her hormones and her mental state were erratic due to her changing medication. The primary aggravating factor, however, was the hate behind the mischief. The Court emphasized the harm this type of hateful conduct can cause, as well as the possible ramifications of further hate. As this aggravating factor emphasized the principle of denunciation, the Court sentenced the offender to a conditional sentence of house arrest for one month, followed by 18 months’ probation. In addition, she was ordered to perform 30 hours of community service.

About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.