Mischief

Mischief - S. 430 of the Criminal Code of Canada

Summary of the Offence

Mischief is covered in Part XI of the Criminal Code of Canada, under "Wilful and Forbidden Acts in Respect of Certain Property" in s. 430.

The offence of mischief can take several forms, including:

• Damaging property
• Interfering with the use of property
• Interfering with electronic data
• Mischief causing danger to life

In general, mischief involves willfully destroying or damaging property, rendering property useless, dangerous, inoperative, or ineffective, or obstructing, interrupting, or interfering with the lawful use, enjoyment, or operation of property.

How Serious is the Offence?

Most mischief offences under s. 430 are considered "hybrid" offences, meaning the Crown may choose to proceed either by indictment or summarily, depending on the facts and circumstances of the case.

A summary offence is generally less serious both in terms of the crime and the sentence, while an indictable offence covers more serious crimes with heavier penalties.

The only offence under s. 430 that is straight indictable is Mischief Causing Danger to Life, persuant to s. 430(2).

Examples of the Offence

• Vandalism, such as spray-painting graffiti on public or private property.
• Intentionally damaging another's property, such as an individual’s vehicle.
• Intentionally throwing an item at someone else's property and causing damage.
• Destruction or interference with computer data/files.

Elements of the Offence

To secure a conviction for mischief, the Crown must prove both the actus reus (guilty act) and mens rea (guilty mind) of the offence beyond a reasonable doubt.

The Guilty Act (Actus Reus)

For the actus reus, the Crown must prove that actual damage was done to the property.

Mischief includes any case where the usefulness or value of the property is impaired, even temporarily. The Crown does not need to prove the value of the damaged property.

Property is defined under s. 428 of the Criminal Code as real or corporal property. Additionally, s. 430(1)(d) states that “enjoyment” of property is subjective and refers to the pleasure derived from using the property.
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The Guilty Mind (Mens Rea)

The mens rea for mischief is either intention or recklessness (R v Schmidtke, 1985 CanLII 3621 (ON CA)).

Mischief is a general intent crime, meaning the Crown does not need to prove the accused intended to bring about specific consequences. It is sufficient to show the intent to perform the act itself.

The Crown must also prove causation, showing that the accused’s actions directly caused the damage to the property.

Possible Defences

• Legal Authority to Cause the Damage / Colour of Right:
  Under s. 429(2) of the Criminal Code, you cannot be convicted if you had legal authority to cause the damage. For example, if the property belonged to you or you had legal authority to destroy or damage it, this would be a valid defence.
• Mistake of Fact:
  If you had a reasonable and genuine belief in a mistake, and the conduct arose from this incorrect assumption rather than criminal intent, this may be a defence. For example, if you honestly believed the property you damaged was yours.

• Applicable Charter Arguments
  The Charter of Rights and Freedoms outlines your rights before and after an arrest. If the police violated your Charter Rights, this may support your defence. In such cases, it may be possible to exclude some or all of the prosecution's evidence.

Possible Punishment If Convicted

Penalties for willful mischief under s. 430 of the Criminal Code can vary significantly depending on the offence:

• s. 430(2) — Willful Mischief Endangering Life:
  This is a straight indictable offence, with a maximum penalty of life imprisonment.
• s. 430(3) — Willful Mischief, Testamentary Instrument or Property over $5,000.00:
  • If Proceeded Summarily:
    Up to two years less a day imprisonment and/or a $5,000 fine.
  • If Proceeded by Indictment:
    Up to 10 years imprisonment.
• s. 430(4) — Willful Mischief, Other Property:
  • If Proceeded Summarily:
    Up to two years imprisonment and/or a $5,000 fine.
  • If Proceeded by Indictment:
    Up to two years imprisonment.
• s. 430(5) — Willful Mischief, Data:
  • If Proceeded Summarily:
    Up to two years less a day imprisonment and/or a $5,000 fine.
  • If Proceeded by Indictment:
    Up to 10 years imprisonment.