FIRST OFFENDER? DEFEND MISCHIEF CHARGES. 416-DEFENCE.

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. 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.

Presently, 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 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.

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.

Having a complete understanding of the Elements of the Criminal Offence, Your Rights and the Consequences associated with a Criminal Record is necessary before any legal decisions are made.

CP24: Sentencing Hearing for Chair Girl.

CP24: Woman rescued from Crane in Toronto released on Bail on April 28, 2017.

Frequently Asked Questions

What is Mischief?
What is the Punishment for a Mischief Conviction?
-Mischief Relating to Religious Property, Educational Instruments, Etc.
-Mischief Relating to War Memorials
-Mischief Relating to Cultural Property
-Mischief Related to Computer Data
What is Not Considered Mischief?
How Does the Crown Prove a Mischief Charge?

Additional Resources

Assault
Assaulting a Peace Officer
Sexual Assault Law in Canada
Consequences of a Criminal Record
Domestic Abuse
First Offenders
Immigration Consequences
Keeping Charges Private
Travel & US Waivers
Vulnerable Sector Screening
Elements of a Crime
Your Rights

What is Mischief?

Section 430(1) of the Criminal Code states that every person who willfully destroys or damages property, renders property dangerous, useless, inoperative or ineffective, obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property, or obstructs,  interferes with any person in the lawful use or enjoyment of their property, is guilty of the offence of mischief. In addition to mischief involving physical property, subsection 1.1 of section 430 states every person who willfully destroys or alters computer data, renders computer data meaningless, useless or ineffective, obstructs, interrupts or interferes with the lawful use of computer data or obstructs, interrupts or interferes with a person in the lawful use of computer data or denies access to computer data to a person who is entitled to access it is guilty of the offence of mischief.

What is the Punishment for a Mischief Conviction?

The punishments associated with a criminal mischief conviction may vary quite widely depending on the subject of the mischief. In cases where the mischief caused actual danger to the life of another person, upon conviction, the accused will be guilty of an indictable offence and liable to a maximum term of life imprisonment. In cases where the mischief was committed in relation to property with a value exceeding $5,000 or property that is a testamentary instrument, the accused will be guilty of a hybrid offence upon conviction. Should the Crown elect to proceed by indictment that accused will be liable to a maximum of ten years’ imprisonment. Should the Crown elect to proceed summarily the accused will be liable to a maximum of two years less a day imprisonment and/or $5,000 fine.

Mischief Relating to Religious Property, Educational Instruments, Etc.

According to section 430(4.1), anyone who commits an act of mischief in relation to a property that is described in paragraphs ((4.101)(a) to (d) as outlined below), if the commission of the offence was motivated by bias, prejudice or hate based on colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability, is guilty of a hybrid offence. In cases where the Crown elects to proceed by indictment the accused will be liable to a maximum of ten years’ imprisonment. In cases where the Crown proceeds summarily, the accused will be liable to a maximum of two years less a day imprisonment.

Properties that will be included in this section (listed in paragraphs (4.101)(a) to (d)) include: (1) A building or structure, or part of a building or structure that is primarily used for the purpose of religious worship, including churches, mosques, synagogues, temples, or any other object associated with religious worship that is located in or on the grounds of any of the buildings listed above, or a cemetery. (2) A building or structure, or part of a building or structure, that is primarily used by an identifiable group (as outlined in s. 318(4)) such as a school, college or university, daycare centre, or any object associated with that institution that is located on the grounds of such a building or structure. (3) A building or structure, or part of a building or structure, that is primarily used by an identifiable group (as outlined in s. 318(4)) for administrative, social, cultural or sports activities or events, including community centres, arenas, town halls or playgrounds, or any object associated with such an institution and located on the same property or grounds as the building or structure. (4) A building or structure, or part of a building or structure, that is primarily used by an identifiable group (as outlined in s. 318(4)) as a residence for senior citizens or any object associated with such a residence and located on the same property or grounds as the residence.

Mischief Relating to War Memorials

As outlined in section 430(4.11) of the Criminal Code, every person who commits an act of mischief in relation to a building or structure, or part of a building or structure that serves primarily as a monument honouring those who died as a result of a war, including war memorials and cenotaphs, or any object associated with such a monument, located on the same grounds as the building or structure serving as a monument, or a cemetery, is guilty of a hybrid offence. Regardless of how the Crown elects to proceed, there will be a minimum punishment of a $1,000 fine for a first offence, a minimum of fourteen days’ imprisonment for a second offence and a minimum of thirty days’ imprisonment for each subsequent offence. Should the Crown elect to proceed by indictment, the accused, upon conviction will be liable to a maximum of ten years’ imprisonment. Should the Crown elect to proceed summarily, the accused, upon conviction will be liable to a maximum term of two years less a day months’ imprisonment.

Mischief Relating to Cultural Property

As outlined in section 430(4.2) of the Criminal Code, every person who commits an act of mischief in relation to a piece of property that is defined as cultural property under Article 1 of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, done at The Hague on May 14, 1954, as set out in the schedule to the Cultural Property Export and Import Act, is guilty of a hybrid offence. Should the Crown elect to proceed by indictment, the accused will be liable, upon conviction, to a maximum of ten years’ imprisonment. In cases where the Crown elects to proceed summarily, the accused will be liable, upon conviction, to a maximum two years less a day imprisonment and/or a $5,000 fine.

Mischief Related to Computer Data

Section 430(5) of the Criminal Code, states that every person who commits an act of mischief in relation to computer data is guilty of a hybrid offence. In more serious cases where the Crown elects to proceed by indictment, the accused will be liable, upon conviction, to a maximum of five years’ imprisonment. In less serious cases where the Crown elects to proceed summarily, the accused will be liable, upon conviction, to a maximum of two years less a day imprisonment and/or a $5,000 fine.

Additionally, section 430(5.1) of the Criminal Code states that every person who willfully commits an act or willfully omits to do an act that they are under a duty to do, if the act or omission in question constitutes mischief causing actual danger to the life of another person, or constitutes mischief in relation to property or computer data, is guilty of a hybrid offence. In cases where the Crown elects to proceed by indictment, the accused, upon conviction will be liable to a maximum of five years’ imprisonment. If the Crown elects to proceed summarily the accused will be liable, upon conviction, to a maximum of two years less a day imprisonment and/or a $5,000 fine.

What is Not Considered Mischief?

It is important to mention that not all activities that may be included in the sections above will be considered mischief offences. According to section 430(6) of the Criminal Code, a person is not guilty of the offence of mischief within the meaning of section 430 due only to the fact that they have stopped working as a result of a failure on the part of his employer and himself to agree upon any matter relating to his or her employment, he or she stops work only as a result of a failure on the part of his or her employer and a bargaining agent (often a union) acting on his or her behalf to agree on any matter relating to his or her employment or he or she stops working as a result of his or her taking part in a combination of workmen or employees for their own reasonable protection as workmen or employees. These types of activities are protected by labour laws in Canada and thus will not result in a criminal mischief charge.

In addition, section 430(7) of the Criminal Code states that no person commits the offence of criminal mischief within the meaning of this section by reason only that he or she attends at or near or approaches a dwelling-house or place for the purpose only of obtaining or communicating information. This means simply coming onto someone’s property to knock on their door and engage in communications with those inside will generally not lead to a criminal mischief charge.

How Does the Crown Prove a Mischief Charge?

As with any criminal offence, the burden of proof lies on the Crown to prove, beyond a reasonable doubt, that the accused committed the crime that they are charged with. To prove that an accused is guilty of mischief the Crown must prove that they committed one of the acts listed in s. 430. Additionally the Crown must also prove that the accused committed the act intentionally, as indicated by the word “willfully” in s. 430(1) of the Criminal Code. Proving simply that the accused caused damage to property will not suffice for a criminal mischief conviction. It is important to note that mischief is a general intent offence. This means that the Crown need not prove that the accused intended for the specific type of damage that occurred. The Crown need only prove that the accused intended, through their unlawful actions, to cause damage of some sort.

Quick Facts

What is a Charge of Mischief?

A person can be charged with mischief in many circumstances. The most common form of mischief is related to the destruction of property. Many times people are charged with mischief related to vandalism or damaging physical property.

What is the Penalty for Mischief?

Generally the consequences for a mischief allegation will depend on the amount of property damaged and whether there were aggravating factors. Most people are not sentenced to jail for mischief, however, more serious types of mischief related to endangering life can have a custodial sentence.

How to Defend Mischief?

Mischief charges can sometimes be challenging to defend because they are often caught on camera. Certain people often record themselves for social media fame and simultaneously eliminate many viable defences. Defending mischief allegations will depend on the extent of the evidence and whether restitution was made.

How do you Prove Mischief?

The Crown is required to prove both the physical and mental component of the offence. Many times the Crown can prove the physical act because property has been damaged or the behavior was caught on camera. However, the Crown will also be required to prove the intention to commit the unlawful act.

Can I go to Jail for Mischief?

In some cases, yes. The sentences imposed on those convicted of mischief offences can differ significantly from one case to the next depending on the severity of the damage and the type of property damaged. Maximum custodial sentences for mischief offences range from two years less a day imprisonment to life imprisonment where human life has been endangered.

How does the Crown Prove Mischief?

To prove a mischief charge, the Crown must prove that the accused committed one of the acts listed in section 430 of the Criminal Code. The Crown must also prove that the accused intentionally committed the act. The Crown is not required to prove that the accused intended for the specific type of damage that was caused, only that they intended to cause damage.

What is Domestic Mischief?

Domestic mischief is mischief occurring in a domestic relationship. To be considered mischief, the property that was damaged cannot be solely owned by the accused, the property must be jointly owned. An example of domestic mischief is an individual punching a hole in the wall of a home jointly owned by them and their domestic partner.

What is Mischief in Relation to Data?

Mischief in relation to data is outlined in section 430(1.1) of the Criminal Code. An individual is guilty of this offence when they intentionally destroy, alter, damage, render meaningless, ineffective or useless, or interrupts, obstructs or interferes with the lawful use, or a person’s lawful use of data, or denies access to a person who is entitled to access.