Mischief

WHAT IS MISCHIEF?
Mischief is a very common criminal charge and involves damaging private or public property, damaging or destroying computer data, and includes what may be taken for granted such as graffiti or tagging.
Although you must deliberately commit these acts, being wilfully reckless will be enough to be convicted.
It is not illegal to damage your own property, but if you do so for a criminal purpose, or for example insurance fraud, you can be charged with Mischief and any other charge.
There are a wide range of sentences for various mischief crimes. Mischief offences are “hybrid offences” meaning that the Crown can elect to proceed either summarily or by way of indictment. This will depend on how serious the facts are. In Summary conviction actions, the maximum sentence you face is 2 years less a day.In an indictable offence, you could face any period of time up to life imprisonment, depending on the specific charge.
There is one charge of Mischief under s.420(2) of the Criminal Code, (mischief causing danger to life) which can only proceed by indictment no matter what the facts. This charge carries the most serious sentence in law which would be life imprisonment.
Most other Mischief offences can attract penalties from a mere fine to penalties of up to 2 years less a day while more serious ones carry a maximum of 10 years imprisonment.
In many cases it may be possible to negotiate for the charges to be withdrawn or diverted without any conviction. Everything depends on the charge and the individual circumstances.
CONSEQUENCES OF CONVICTION
Upon conviction, you could face:
- Jail
- Fines
- Probation and other conditions
- Stigma and psychological impact of a conviction
- Criminal record resulting in your record being entered into a national CPIC database and automatically shared with the USA
- Travel restrictions – great difficulty in entering the US and UK
- Problems with immigration, permanent residence, and citizenship applications
- A conviction could result in being barred from attending some educational institutions
- Potential impact on present or future employment
- You could be limited from coaching or working with children or persons in a vulnerable sector
MISCHIEF UNDER THE CRIMINAL CODE
Mischief is defined in section 430(1) of the Criminal Code set out below:
430 (1) Everyone commits mischief who wilfully
(a) destroys or damages property;
(b) renders property dangerous, useless, inoperative or ineffective;
(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.
MISCHIEF – PROPERTY VALUE UNDER $5,000
If the mischief charge is because of property damage, the value of which exceeds $5,000.00,the penalty is:
- Up to 10 years in jail if the Crown proceeds by indictment
MISCHIEF – PROPERTY VALUE OVER $5,000
If the mischief charge is because of property damage which does not exceed $5,000.00, the penalty is:
- Up to 2 years in prison if the Crown proceeds by indictment.
Note: In both Mischief “over $5,000 and Mischief “under $5,000 it is not the value of the damage caused but the value of the property that determines which charge is laid. Therefore, even where the actual damage is less than $5,000 in value, when the value of the “damaged property” exceeds $5,000 dollars, the Crown Attorney has the option to elect to proceed by indictment. Indictable offences carry a maximum of up to 10 years in jail upon conviction.
The majority of mischief cases involve less than $5,000 and are subject to a maximum penalty of two years less a day in jail.
SPECIAL TYPES OF MISCHIEF
MISCHIEF TO COMPUTER DATA
Section 430 (1.1) provides that everyone commits mischief who wilfully
(b) renders computer data meaningless, useless or ineffective;
(c) obstructs, interrupts or interferes with the lawful use of computer data; or
(d) 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 to it.
MISCHIEF CAUSING DANGER TO LIFE
Everyone who commits mischief that causes actual danger to life is guilty of an indictable offence and liable to imprisonment for life.
MISCHIEF TO TESTAMENTARY INSTRUMENT
Everyone who commits mischief in relation to property that is a testamentary instrument or the value of which exceeds five thousand dollars
(b) is guilty of an offence punishable on summary conviction (maximum penalty 2 years less a day)
MISCHIEF TO PROPERTY
Everyone who commits mischief in relation to property, other than property described in subsection (3),
(b) is guilty of an offence punishable on summary conviction.
HATE MOTIVATED MISCHIEF
Everyone who commits mischief in relation to specified properties (4.101)(a) to (d), if the commission of the mischief is 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,
(b) is guilty of an offence punishable on summary conviction
(maximum penalty 2 years less a day)
Properties under this section include Religious and Educational Institutions, Seniors Residences, Places of Religious Worship or cemeteries, and Properties of Identifiable Groups
MISCHIEF TO WAR MEMORIALS
Everyone who commits mischief in relation to property that is a building, structure or part thereof that primarily serves as a monument to honour persons who were killed or died as a consequence of a war, including a war memorial or cenotaph, or an object associated with honouring or remembering those persons that is located in or on the grounds of such a building or structure, or a cemetery is guilty of an indictable offence or an offence punishable on summary conviction and is liable,
(ii) for a second offence, to imprisonment for not less than 14 days, and
(iii) for each subsequent offence, to imprisonment for not less than 30 days;
(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than two years less a day.
MISCHIEF TO CULTURAL PROPERTY
Everyone who commits mischief in relation to cultural property is
(b) is guilty of an offence punishable on summary conviction.
MISCHIEF TO COMPUTER DATA
Everyone who commits mischief in relation to computer data
(b) is guilty of an offence punishable on summary conviction.
MISCHIEF TO COMPUTER DATA ENDANGERING LIFE
It is also an offence if everyone who wilfully does an act or wilfully omits to do an act that it is their duty to do, if that act or omission is likely to constitute mischief causing actual danger to life, or to constitute mischief in relation to property or computer data,
(b) is guilty of an offence punishable on summary conviction.
DEFENCES TO MISCHIEF
There are many general defences to Mischief. There are also many technical defences based on some of the more special types of Mischief. Some general defences would be:
- Lack of intention to cause any Mischief – such as accidental damage – since Mischief is a specific intent offence it requires the “mens rea” or “intention” to cause damage or interference with the property. In such cases recklessness would eliminate this defence. The Crown must prove that you wilfully intended to do mischief, beyond a reasonable doubt.
- Mistake of Fact is a defence concerning an essential element of the case of Mischief. This would be raised to refute any required element of the charge of Mischief which would be necessary in order to prove the Accused guilty. For example, an accused could argue they were mistaken as to the ownership of the property and believed it to be their own.
- It is not mischief to damage your own property so long as you take no steps to defraud another party such as your insurance company.
- A Colour of Right Defence could be raised in a Mischief Charge case by asserting that you had the right to do what you did to the property at the time as you had the ownership rights to the property. The Crown must prove that the other party who claims to own the property did own the property beyond a reasonable doubt.
- Identification Defence – The crown must prove that you were the one that committed the crime beyond a reasonable doubt.
- In addition, all the technical and necessary elements must be proven beyond a reasonable doubt.
- We would assert all Affirmative defences.
- We would also assert all Defences related to your Constitutional Rights under the Charter being respected throughout the criminal process, and, should we uncover any violations, we would vigorously pursue the dismissal of charges against you.
- The Charter sets out all rights and freedoms both before and after arrest. If the police and courts fail to abide by these rights, either wilfully or innocently, We would raise this defence and seek to have your case dismissed or evidence excluded under s. 24 of the Charter.
- The Criminal Code also provides a statutory defence in Section 430 (6) in that no person commits mischief within the meaning of this section by reason only that
(b) he stops work as a result of the failure of his employer and a bargaining agent acting on his behalf to agree on any matter relating to his employment; or
(c) he stops work as a result of his taking part in a combination of workmen or employees for their own reasonable protection as workmen or employees.
- Section 430 (7) further provides an additional defence that no person commits mischief within the meaning of this section by reason only that he attends at or near or approaches a dwelling-house or place for the purpose only of obtaining or communicating information.
- In a case of Hate-motivated mischief it can be argued that the accused had no such intention.
- In a case of destruction of computer data, a person may use the defence that they held a reasonable belief that the data was their property and theirs to do with as they saw fit. Also, they may argue they were directed by their superior in a workplace to destroy certain data.
MISCHIEF WHILE ON DRUGS OR INTOXICATED
The Courts generally take the view that if you have voluntarily consumed alcohol or consumed drugs and then committed mischief that you cannot rely on this defence.
So for example, if while on Drugs or intoxicated you vandalized a vehicle, you would likely be convicted.
OUR DEFENCE STRATEGY
We seek to help any accused avoid the negative effects of a Criminal Record.
We will always encourage the accused, to the best of their financial ability, to reimburse the loss on a “without prejudice” basis if they in fact did damage or interfere with the use of the property.
This will put us in the best position to negotiate with the Crown Attorney to have the Charges withdrawn or diverted based on this “restitution” being made to the victim. In the event that the charge is not withdrawn by the Crown, we will seek a further review with the Senior Crown or a pretrial with a judge to attempt to have an additional consideration into this.
Should the withdrawal of the charge not be an available option, making restitution demonstrates remorse and a willingness to accept responsibility. It will be looked upon more favourably at the time of sentencing by both the Crown and the Judge and will mitigate any sentence you receive.
We build out defence strategy, based on your particular circumstances, the facts in the case, and with your needs and goals in mind. We never give up the presumption of innocence. When the cards seem to be stacked against you and standard defences won’t work, we’ll seek out creative solutions. We are tenacious to find the best outcome for you.
WHAT SHOULD YOU DO NOW?
You should consult an experienced lawyer to discuss your case and see if we would be a good fit for you. We are compassionate. We do not judge you. We are here to defend clients and help them resolve these charges so that they can get back on track with their lives as quickly as possible.
Get started with a consultation
Areas we serve for criminal defence law in Ontario

Ajax

Alliston

Amherstburg

Angus

Arnprior

Aurora

Barrie

Beamsville

Belleville

Binbrook

Bolton

Bowmanville

Bradford

Brampton

Brantford

Burlington

Caledon

Caledonia

Cambridge

Carleton Place

Chatham-Kent

Clarington

Collingwood

Cornwall

Elliot Lake

Elmira

Fergus

Fort Erie

Georgetown

Guelph

Hamilton

Hawkesbury

Ingersoll

Innisfil

Kanata

Kawartha Lakes

Kenora

Keswick

Kingston

Kitchener

Leamington

London

Markham

Midland

Milton

Mississauga

New Hamburg

Newmarket

North Bay

Oakville

Oakville

Orangeville

Orillia

Oshawa

Ottawa

Owen Sound

Paris

Pembroke

Petawawa

Peterborough

Pickering

Port Colborne

Port Hope

Richmond Hill

Rockland

Sarnia

Sault Ste. Marie

Simcoe

St Catharines-Niaraga Falls

St. Thomas

Stratford

Strathroy

Sudbury

Thunder Bay

Tillsonburg

Timmins

Toronto

Uxbridge

Valley East

Vaughan

Wallaceburg

Welland-Pelham

Whitby

Windsor

Woodstock