Toronto Mischief Defence Lawyers

What if I Broke Something by Accident and Was Charged with Mischief?

The arresting police have the discretion on whether to lay a charge or not. Section 430 of the Criminal Code is clear that the accused must have wilfully intended the damage to occur or was exceedingly reckless to be guilty of the offence. If the police have reasonable suspicion that an act of mischief was wilfully committed, they may lay a charge. If however, the accused can show that the damage was accidental, police may decline to lay the charge.

Once a charge is laid, however, the accused must go through the criminal justice system. It is vital for the accused to get counsel at this time and be informed of their section 10(b) rights. At the first available opportunity, such as a pre-trial with the Crown, counsel may raise the possibility that the incident was an accident. To do so successfully, the defence must present some evidence to show this is the case. Furthermore, the explanation must have an air of reality for the Crown to even consider dropping the charge. If the Crown does not accept the accused’s explanation and does not agree to withdrawal the charges, the accused will have to take the matter to trial. The trial judge will then determine whether the accused is guilty of the offence.

Can I be Charged with Mischief for Breaking Something I Own?

Typically, an individual who breaks something that belongs only to them will not be charged with mischief. However, if an item is jointly owned by two or more people, then any party who breaks or destroys the item may be guilty of mischief. This is outlined in section 429(3)(a) of the Code

This situation arises often in domestic mischief cases. For example, a married couple get into an argument, and one parties begins breaking dishes in the kitchen. The police are called and the individual who broke the dishes is placed under arrest for mischief. While the plates belonged to the accused, they also belong to the accused’s spouse. As a result, the accused has committed mischief.

How to Defend Mischief Charges?

One of the most common defences for mischief is that the accused did not have the intention to commit mischief, or accidentally destroyed or damaged property. The wording of the mischief offence within section 430(1) of the Criminal Code is very specific in that the person must “wilfully” damage or destroy the property. If there is no willfulness or recklessness, then the person cannot be convicted of mischief.

Another common defence for mischief and other property-related offences is that the offender sincerely believed that they had legal rights to the property. This is the “colour of right” defence. If an individual owned their property, they have every right to deal with it as they wish. However, if the individual only had partial interest in the property or jointly owned the property with someone else, as enumerated in section 429(3)(a) of the Criminal Code, they may be liable to a charge of mischief.

Is Vandalism Different than Mischief?

Vandalism is the damaging of property. There is no separate offence for vandalism in the Criminal Code. If someone has vandalizing something, they will be charged with mischief. If the vandalism was done by fire, they are charged under the separate section in the Code for arson.

Vandalism is the destruction or damage of private or public property. Depending on the object that is vandalized, the person may be charged with different kinds of mischief. The motive behind the vandalism may also be an aggravating factor. If a piece of cultural or educational property used by an identifiable group is purposefully destroyed and the act was hate-motivated, the Court will emphasize the primary sentencing principles of deterrence and denunciation during sentencing. Hate-motivated crimes are more likely to result in jail time.

Will I Go to Jail for Mischief in Toronto?

There are no mandatory minimum penalties for mischief. As mischief is a non-sexual, non-violent offence, it is less likely to result in jail time. However, a jail sentence is possible, especially where the accused is charged with mischief over $5,000. When sentencing an offender for a crime, the court will consider various factors that are specific to the offender and to the case. The Court will consider the impact the sentence will have on the offender as well as the impact the offender’s crime had on the complainant. In some cases, the complainant may provide a victim impact statement which the Court can rely on when determining the appropriate sentence.

For example, where the item destroyed was particularly valuable, had sentimental value, or were otherwise irreplaceable, the chances of the offender being sentenced to jail increase. When sentencing the offender, the complainant has the opportunity to provide a victim impact statement which will outline this information.