Toronto Mischief Lawyer
Mischief offences arise from a wide range of conduct. Protests, neighbour disputes, house parties, and noise complaints might all lead to criminal mischief charges. Before pleading guilty to a criminal mischief, you should consult with Toronto criminal defence lawyer Brian Weingarten to discuss your rights and possible defences.
What is Criminal Mischief and What are the Potential Penalties?
The Criminal Code essentially divides mischief charges into two categories, those that address real property, and those that address data. Section 430 of the Criminal Code provides:
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.
(1.1) Everyone commits mischief who wilfully
(a) destroys or alters data;
(b) renders data meaningless, useless or ineffective;
(c) obstructs, interrupts or interferes with the lawful use of data; or
(d) obstructs, interrupts or interferes with any person in the lawful use of data or denies access to data to any person who is entitled to access thereto.
The maximum penalty for mischief in relation to property is two years in prison if the matter proceeds by way of indictment. However, if the mischief causes an actual danger to life, the maximum penalty is life imprisonment. This more serious form of mischief frequently arises in cases of food or drug tampering.
The maximum penalty for mischief in relation to data is 10 years in prison if the matter proceeds by way of indictment.
Can I be Found Guilty of Mischief Against My Own Property?
Generally speaking, an accused cannot commit mischief against his own property. The Crown must tender evidence to demonstrate that the property belonged to someone other than the accused. However, a mischief charge may be laid against an accused that destroys their own property if the property is subject to another individual’s rights. Mischief charges can be laid where one spouse damages shared matrimonial property, as there is a joint interest in the property. A mischief charge may also be laid if the property is damaged or destroyed with intent to defraud another individual.
What Degree of Damage Must Exist Before A Mischief Charge Can Be Laid?
The Ontario Court of Appeal recently addressed the question of the scope of damaged required to support a criminal mischief charge. The Court explained that the damage to property must be more than a minor inconvenience. The Crown is required to demonstrate that the usefulness of the property has been impaired, all be it temporarily.
What is the Colour of Right Defence to a Mischief to Property Charge?
Section 429 of the Criminal Code sets out a potential defence to a mischief to property charge. The section states:
(2) No person shall be convicted of an offence under sections 430 to 446 where he proves that he acted with legal justification or excuse and with colour of right.
The section does not excuse the ignorance of the law. In order to take advantage of the “justification or colour of right” defence, an accused must able to demonstrate that they sincerely believed in the existence of a particular set of facts, which if true, would entitle the accused to act in the manner in which he did. For example, an accused might tender evidence to demonstrate that they sincerely believed that they were entitled to possess a particular parcel of property, where in reality, the title to the land should have been registered to a neighbour.
Is Drunkenness a Defence to Mischief?
An accused cannot rely on his or her intoxicated state as a defence to a mischief to property charge. The Courts have held that Mischief is a general intent offence, rather than a specific intent offence. A general intent offence is one where the intention only relates to the performance of the prohibited act in question. By contrast, a specific intent offence requires the performance of the prohibited act, as well as some additional intent or purpose going beyond the merely performance of the prohibited act.
The Supreme Court of Canada has held that drunkenness does not apply to general intent offences, such as mischief to property.