Frequently Asked Questions
What are the Best Defences to Mischief?
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Elements of a Crime
What are the Best Defences to Mischief?
When developing a defence for any criminal offence, the most important thing is to understand the elements that the Crown must prove to gain a conviction and the evidence in the possession of the Crown. With this information, the defence can create a strategy to undermine the Crown’s theory of the case by poking holes in their evidence. By poking enough holes in the correct places, the defence creates reasonable doubt.
If you have been charged with a mischief offence the best defence is going to depend largely on the facts of the case. Every defence must be uniquely tailored to the specific situation. There are three commonly used defences that will help an accused beat a mischief charge. These defences include accident, colour of right, and identity.
Mischief is a specific intent offence. This means that for an accused to be guilty of the offence they must have intended to interfere or cause damage with property that did not belong to them. This is indicated by the word “willingly” in section 430 of the Criminal Code. As such, to gain a conviction the Crown must prove, beyond a reasonable doubt, that the accused interfered or caused damage intentionally.
Where the accused caused damage by accident, the defence may argue that the accused lacked the necessary intent to be guilty of mischief. The defence need not present any evidence bolstering this claim, however doing so is advisable. An accused who was reckless as to whether their actions would cause damage to someone else’s property may not use this defence.
Colour of Right
Another defence that may be used in mischief cases if the colour of right defence. Colour of right is a defence that may be used in certain property related offences including theft and certain mischief offences. An individual may use the colour of right defence where they honestly believed they had a legal right to the property at issue in the criminal case. For example, if an individual deleted computer data with an honest belief that the files lawful belonged solely to them, and that they had a right to destroy them, they may use the colour of right defence.
To successfully use this defence the accused must show that they held an honest belief that they had a legal right to the property. Where property is owned by more than one individual, an accused cannot use this defence. Property inside a matrimonial home is considered jointly owned and so an individual who destroys matrimonial property may not use this defence. An accused who believed they had a moral right, rather than a legal right, to the property will not be able to use this defence.
The defence of identity may be used in any criminal case. This defence simply argues that the accused is not the individual who committed the alleged crime. In every criminal matter, the Crown must prove basic elements of the offence including the identity of the offender, the jurisdiction in which the offence was committed, and the approximate date and time of the alleged offence. The identity defence attacks the Crown’s ability to prove that the accused was the individual who committed the offence.
To successfully advance this defence, the accused must present evidence to the Court that shows that they are not the individual who committed the offence. When advancing this type of defence, it is always helpful, if possible, to present an alternative suspect to the Court, though this is never necessary.
If you have been charged with mischief or another related offence it is important to protect your rights from the very beginning. Donich Law can ensure your rights are protected throughout the court process. We will review your disclosure to better understand the evidence in the possession of the Crown and then use that information to develop the best defence strategy for the situation. We regularly defend individuals charged with a wide array of offences and routinely secure favourable outcomes for our clients.