Mischief is defined under section 430 of Canada’s Criminal Code, which says 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, is guilty of mischief. In addition to mischief to physical property, subsection 1.1 of section 430 stipulates that any person who wilfully destroys or alters computer data; renders computer data meaningless, useless or ineffective; or 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 that is entitled to access it guilty of the offence of mischief.
The range of behaviour captured by mischief is very broad. It captures not only physical damage to real property or data, it also captures interference of the lawful use of real property or data : for example, a person who recorded his neighbour’s entire backyard by installing a video recording device in the person’s own backyard was found to be a form of mischief.
Penalties for mischief depend on whether the charges are prosecuted as an indictable or summary conviction offence, property value, and other factors based on type of mischief committed. In general, when mischief is prosecuted as an indictable offence, the maximum punishment is 10 years in prison if the property value over $5,000 and two-years imprisonment for property values under $5,000. The maximum penalty for a summary conviction mischief charge is six months in jail, no matter the property value.
A mischief that causes danger to life carries a maximum sentence of life in prison. Mischief relating to war memorials carries mandatory minimum sentences whether prosecuted by indictment or summary conviction. A first offence conviction comes with a mandatory minimum $1,000 fine; a second offence conviction mandates a minimum 14 days in jail, and subsequent convictions not less than 30 days. The maximum sentence is 10 years imprisonment as an indictable offence and two years in jail as a summary conviction.
Pirating is also a form of mischief, an indicatable offence conviction for unauthorized recording has a five-year maximum sentence if the Crown can prove intent to sell, rent, or commercially redistribute the content, but only two years if such intent is lacking.
A conviction for counselling to commit mischief carries a maximum five-year prison sentence as an indictable offence or two-year maximum as a summary conviction.
How to Defence Mischief
To successfully prosecute mischief charges, the Crown must prove beyond a reasonable doubt that:
- Property was truly damaged or that someone’s use of their property was interfered with.
- The suspect did damage the property or interfere with another’s use of it.
- That the suspect did so willfully or in a reckless manner.
- That the suspect did not own the property.
So, the common defence is to raised a reasonable doubt on who actually damaged or interfered with the property or data; whether the property or data was damaged or interfered with; if so, was the damage or inference was caused intentionally.
Consult with Jake Shen
Mischief is a serious crime that can result in severe penalties. Even if prosecuted as a summary conviction offence, a conviction can result in jail time, fines, and a criminal record; for some individuals, a conviction can also trigger deportation process under the Immigration and Refugee Protection Act. It is crucial for individuals facing criminal charges to be represented by an experienced criminal defence lawyer, such as Jake Shen, who has defended hundreds of clients. Jake, as a former police officer, knows how criminal investigations are conducted by police and can identify areas of potential defence efficiently and effectively.
Please contact Jake if you or a loved one is facing criminal charges.