Toronto Mischief Defence Lawyers

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.

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.