Mischief to Property (Offence)
|s. 430 of the Crim. Code|
|Election / Plea|
summary proceedings must initiate within 12 months of the offence (786(2))
|Avail. Disp.||Discharge (730)|
Conditional Sentence (742.1)
|Maximum||2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)|
|Maximum||2 years incarceration (other)|
10 years incarceration (test., over $5k, data)
Life (endanger life)
Offences relating to mischief are found in Part XI of the Criminal Code relating to "Wilful and Forbidden Acts in Respect of Certain Property".
Mischief concerns the interference with another person's property. Most typically this involves property damage such as vandalism. Section 430 describes several forms of the offence of mischief.
The offences can be grouped into mischief involving the damaging of property, mischief involving the interference with the use of property, mischief involving the interference with electronic data, and mischief causing danger to life.
|Crown Election||Defence Election
|s. 430(3) [mischief of value exceeding $5,000]||Hybrid Offence(s)||(* only if Crown proceeds by Indictment)||(under 14 years max)|
|s. 430(4) [mischief other than testamentary instruments or value exceeding $5,000]||Hybrid Offence(s)
|s. 430(5.1) [act or omission causing risk to life]||Hybrid Offence(s)||(* only if Crown proceeds by Indictment)||(under 14 years max)|
|s. 430(2) [mischief causing danger to life]||Indictable Offence(s)|
Offences under s. 430(4) [mischief other than testamentary instruments or value exceeding $5,000] are absolute jurisdiction offences under s. 553(a) and so does not have a defence election of court. It must be tried by a provincial court judge.
by Peace Officer
by Judge or Justice
s. 508(1), 512(1), or 788
s. 498, 499, and 501
a Judge or Justice
on a Release Order
s. 515 to 519
|Direct to Attend |
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
|s. 430(3) [mischief of value exceeding $5,000] or
s. 430(4) [mischief other than testamentary instruments or value exceeding $5,000]
|s. 430(2) [mischief causing danger to life]|
When charged under s. 430(3) [mischief of value exceeding $5,000] or (4) [mischief other than testamentary instruments or value exceeding $5,000], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
When charged under s. 430(2) [mischief causing danger to life] , the accused can be given a judicial summons without arrest. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
- Fingerprints and Photos
A peace officer who charges a person under s. 430 [mischief] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
- Publication Bans
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
- Offence Designations
|AG Consent Required||Serious Criminality|
s. 36 IRPA
|s. 430(2) [mischief causing danger to life]|
|s. 430(3) [mischief of value exceeding $5,000]||(by indictment only)|
|s. 430(4) [mischief other than testamentary instruments or value exceeding $5,000]
s. 430(5.1) [act or omission causing risk to life]
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Testamentary Instruments $5,000 and Above
Dangerous Act or Omission
Draft Form of Charges
|"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"AND FURTHER at the same time and place aforesaid, he [or she]..."|
|Code Section||Subject of Offence||Draft Wording|
|430||"..., contrary to section 430 of the Criminal Code.|
Proof of the Offence
Proving mischief to property under s. 430(3), (4) should include:
Proving mischief to testamentary instruments under s. 430(3) should include:
Proving mischief causing actual danger to life under s. 430(2) should include:
Interpretation of the Offence
Mischief include any case where the usefulness or value of the property has been impaired, at least temporarily. However, this has been found not necessarily to include things like posters on lamp posts.
The mens rea for mischief is either intention or recklessness.
"Enjoyment under s. 430(1)(d) is viewed from a subjective stand-point referring to the pleasure taken from the use of the property."
There is some division on whether "enjoyment" has a narrow meaning as it relates to "conduct in relation to property rights" or a more expansive view that includes "action of obtaining from property the satisfaction that the property can provide". British Columbia has sided on the more expansive definition.
It is not an essential requirement that the Crown prove the monetary value of the thing damaged as the offence will apply equally where the property is simply rendered dangerous.
Danger to Life (430(2))
Under section 430(2), a "danger to life...must be the physical outcome of the damage to the property and not merely incidental to the means". The danger must be the direct result of the act.
The accused must subjectively intend to endanger life of another person. Recklessness is insufficient for a conviction on s. 420(2) but is sufficient for a conviction under s. 430(5.1).
The owner of the property is not a relevant factor unless the accused owned it. The identity of the owner is not an essential element. Thus, the property can include trash or garbage.However, there must be at least some evidence that the property does not belong to the accused.
Mischief to Data (430(1.1) and (5))
Mischief in relation to data can underlie a charge of unauthorized use of a computer.
Where charged in reference to the theft of data will not be valid as data cannot be stolen.
The deletion of a person's text messages from their phone without consent may constitute mischief to data.
The mens rea for mischief to data is not satisfied by mere recklessness.
- R v Maurer, 2014 SKPC 118 (CanLII), per Metivier J
- R v Charlton, 2014 QCCQ 4789 (CanLII), per Poulin J
R v Livingston, 2018 ONCJ 25 (CanLII), per Lipson J, at para 84 ("Attempted mischief to data requires actual intent and purpose and not just recklessness. Although s. 429(1) provides that the completed offence can be made out with recklessness, recklessness does not suffice for liability grounded in attempt. That is because s. 24 of the Criminal Code, the provision creating the offence of attempt, requires an intent to commit the offence and a purpose of carrying out that intention:...")
Participation of Third Parties
- Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).
A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.
- On Finding of Guilt
s. 606(4.1), (4.2)
|Victim Notice |
of Impact Statement
|s. x [x]|
For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 430), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".
Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.
Sentencing Principles and Ranges
- Maximum Penalties
Offences under s. 430(3), (4), (4.1), (4.11), (4.2), or (5) are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration under s. 430(4) [mischief other than testamentary instruments or value exceeding $5,000], 5 years incarceration under s. 430(5.1) [omission], or 10 years incarceration under s. 430(3) [mischief of value exceeding $5,000], (4.1) [mischief to religious property], (4.2) [mischief to cultural property], (4.11) [mischief to war memorials] or (5) [mischief to data]. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) under s. 420(3) [$5,000 and above], 430(4) [under $5,000], (4.2) [mischief to cultural property], (5) [mischief to data] and s. 430(5.1) [act or omission causing risk to life] or 18 months incarceration under s. 430(4.1) [religious property] and (4.11) [mischief to war memorials].
Offences under s. 430(2) [mischief causing danger to life] are straight indictable. The maximum penalty is life incarceration.
- Minimum Penalties
There are no mandatory minimums, except for convictions under s. 430(4.11) which require a minimum penalty is $1,000 fine (no prior convictions) or 14 days jail (second conviction), or 30 days jail (third or more convictions).
- Available Dispositions
s. 718.3, 787
|s. 430(3), (4), (4.1), (4.2), (5) or (5.1)||any|
|s. 430(4.11) [mischief to war memorials]||any|
|s. 430(2) [mischief causing danger to life]||N/A|
All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).
- Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
Persons convicted of mischief under $5,000 who have no prior record will frequently receive a probationary period with either a suspended sentence or conditional discharge.
- see also: Mischief (Sentencing Cases)
Ancillary Sentencing Orders
- Offence-specific Orders
|DNA Orders||s. 430 (2), (3), (4.1), (4.11), (4.2), (5), or (5.1)||
|Delayed Parole Order||s. 430(2) [mischief causing danger to life]||
- General Sentencing Orders
|Non-communication order while offender in custody (s. 743.21)||any||The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.|
|Restitution Orders (s. 738)||any||A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.|
|Victim Fine Surcharge (s. 737)||any||A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).|
- General Forfeiture Orders
|Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))||any||Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.|
|Fine in Lieu of Forfeiture (s. 462.37(3))||any||Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.|
|Forfeiture of Weapons or Firearms (s. 491)||any||Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.|
|Forfeiture of Offence-related Property (s. 490.1)||any||Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.|
Record Suspensions and Pardons
Convictions under s. 430 are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".