Mischief to Property (Offence)

From Criminal Law Notebook
Jump to navigation Jump to search


Mischief
s. 430 of the Crim. Code
Election / Plea
Crown Election varies
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction varies
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum None
Maximum 2 years incarceration (other)
10 years incarceration (test., over $5k, data)
Life (endanger life)
Reference
Offence Elements
Sentence Digests

Overview

See also: Mischief to Data (Offence) and Mischief to Cultural Property (Offence)

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.

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 430(3) [mischief of value exceeding $5,000] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)
s. 430(4) [mischief other than testamentary instruments or value exceeding $5,000] Hybrid Offence(s)
(Absolute Jurisdiction)
OK Symbol.png X Mark Symbol.png X Mark Symbol.png (Absolute Jurisdiction)
s. 430(2) [mischief causing danger to life] Indictable Offence(s) X Mark Symbol.png OK Symbol.png OK Symbol.png

Offences under s. 430(3) [mischief of value exceeding $5,000] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

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.

Offences under s. 430(2) [mischief causing danger to life] are straight indictable. There is a Defence election of Court under s. 536(2).

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
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]
OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 430(2) [mischief causing danger to life] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

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 cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.

Fingeprints 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 430 [mischief] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Generally

Mischief

430. (1) Every one 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.

...
R.S., 1985, c. C-46, s. 430; R.S., 1985, c. 27 (1st Supp.), s. 57; 1994, c. 44, s. 28; 2001, c. 41, s. 12; 2005, c. 40, s. 3; 2014, c. 9, s. 1; 2017, c. 27, s. 1; 2019, c. 25, s. 162.

CCC

Endangering Life

430.
...

Punishment

(2) Every one who commits mischief that causes actual danger to life is guilty of an indictable offence and liable to imprisonment for life.
...
R.S., 1985, c. C-46, s. 430; R.S., 1985, c. 27 (1st Supp.), s. 57; 1994, c. 44, s. 28; 2001, c. 41, s. 12; 2005, c. 40, s. 3; 2014, c. 9, s. 1; 2017, c. 27, s. 1; 2019, c. 25, s. 162.

CCC

Testamentary Instruments $5,000 and Above

430.
...

Punishment

(3) Every one who commits mischief in relation to property that is a testamentary instrument or the value of which exceeds five thousand dollars

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) is guilty of an offence punishable on summary conviction.

...
R.S., 1985, c. C-46, s. 430; R.S., 1985, c. 27 (1st Supp.), s. 57; 1994, c. 44, s. 28; 2001, c. 41, s. 12; 2005, c. 40, s. 3; 2014, c. 9, s. 1; 2017, c. 27, s. 1; 2019, c. 25, s. 162.

CCC

Under $5,000

430.
...

Idem

(4) Every one who commits mischief in relation to property, other than property described in subsection (3) [mischief to testamentary instrument or property exceeding $5,000],

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.

...
R.S., 1985, c. C-46, s. 430; R.S., 1985, c. 27 (1st Supp.), s. 57; 1994, c. 44, s. 28; 2001, c. 41, s. 12; 2005, c. 40, s. 3; 2014, c. 9, s. 1; 2017, c. 27, s. 1; 2019, c. 25, s. 162.

CCC

Dangerous Act or Omission

430
...

Offence

(5.1) Every one who wilfully does an act or wilfully omits to do an act that it is his 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 data,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.

...
R.S., 1985, c. C-46, s. 430; R.S., 1985, c. 27 (1st Supp.), s. 57; 1994, c. 44, s. 28; 2001, c. 41, s. 12; 2005, c. 40, s. 3; 2014, c. 9, s. 1; 2017, c. 27, s. 1; 2019, c. 25, s. 162.

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"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
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving mischief to property under s. 430(3), (4) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit does any of the following:
    1. "destroys or damages" the property;
    2. "renders property dangerous, useless, inoperative or ineffective";
    3. "obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property"; or
    4. "obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property"
  5. Proof of ownership by someone other than accused [1]
  6. the damage was wilfully or recklessly
  7. the manner in which the damage occurred
  8. the state of the property before damage
  9. the state of the property after damage
  10. value of property damaged: (over $5,000 (s. 430(3)), equal or under $5,000 (s. 430(4)); and
  11. the culprit had no "colour of right".

Proving mischief to testamentary instruments under s. 430(3) should include:

  1. the underlying elements to mischief to property; and
  2. the subject matter is a "testamentary instrument".

Proving mischief causing actual danger to life under s. 430(2) should include:

  1. the underlying elements to mischief to property; and
  2. the prohibited conduct causes "causes actual danger to life";
  3. the culprit had an objective foresight that the prohibited consequence would result from his conduct.
  1. see R v Power (1995), 141 N.S.R. (2d) 161, 403 A.P.R. 161 (N.S.S.C.), 1995 CanLII 4472 (NS SC), per Scanlan J

Interpretation of the Offence

Mischief include any case where the usefulness or value of the property has been impaired, at least temporarily.[1] However, this has been found not necessarily to include things like posters on lamp posts.[2]

Where the subject-matter is under $5,000 in value, the offence is an absolute jurisdiction offence and must be tried in provincial court.[3]

The mens rea for mischief is either intention or recklessness.[4]

  1. R v Quickfall, 1993 CanLII 3509 (QC CA), (1993), 78 CCC (3d) 563, at p. 566 (Q.C.A.), per McCarthy JA and Proulx JA
  2. R v Jeffers, 2012 ONCA 1 (CanLII), per Laskin JA, at paras 18 to 23
  3. see s. 553(a)
  4. R v Schmidtke, [1985] OJ No 84 (C.A.), 1985 CanLII 3621 (ON CA), per Robins JA, at p. 4

Enjoyment (430(1))

"Enjoyment under s. 430(1)(d) is viewed from a subjective stand-point referring to the pleasure taken from the use of the property."[1]

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".[2] British Columbia has sided on the more expansive definition.[3]

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.[4]

  1. R v Nicol, 2002 MBCA 151 (CanLII), per Huband JA
  2. R v Anderson, 2009 ABPC 249 (CanLII), per Wenden J
  3. See R v TW, [1993] BCJ 2031(*no CanLII links)
    R v Wheldon, 2014 BCPC 119 (CanLII), per Gouge J, at para 8
  4. R v Barahona Villeda et al, 2014 BCPC 61 (CanLII), per Rideout J, at para 28

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".[1] 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).[2]

  1. R v Nairn (1955), 112 CCC 272, (1955) N.J. No. 4 (NFLD C.A.), 1955 CanLII 502 (NL SC), per Dunfield J, at p. 273
  2. R v Lee, 2011 BCPC 367 (CanLII), per Challenger J
    see also R v SDD, 2002 NFCA 18 (CanLII), 164 CCC (3d) 1, per Wells CJ


Ownership

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.[1] Thus, the property can include trash or garbage.[2]However, there must be at least some evidence that the property does not belong to the accused.

  1. R v Forsythe (1986), 70 A.R. 294 (C.A.), 1986 ABCA 79 (CanLII), per Kerans JA
  2. Williams v Phillips (1957), 41 Cr. App. R. 5 (C.A.)
    R v Pace, [1965] 3 CCC 55 (NSCA), 1964 CanLII 597 (NS CA), per Ilsley CJ

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.[1]

The deletion of a person's text messages from their phone without consent may constitute mischief to data.[2]

The mens rea for mischief to data is not satisfied by mere recklessness.[3]

  1. R v Maurer, 2014 SKPC 118 (CanLII), per Metivier J
  2. R v Charlton, 2014 QCCQ 4789 (CanLII), per Poulin J
  3. 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:...")

Defences

430.
...

Saving

(6) No person commits mischief within the meaning of this section by reason only that

(a) he stops work as a result of the failure of his employer and himself to agree on any matter relating to his employment;
(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.
Idem

(7) 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.
...
R.S., 1985, c. C-46, s. 430; R.S., 1985, c. 27 (1st Supp.), s. 57; 1994, c. 44, s. 28; 2001, c. 41, s. 12; 2005, c. 40, s. 3; 2014, c. 9, s. 1; 2017, c. 27, s. 1; 2019, c. 25, s. 162.

CCC

Wilfully causing event to occur

429. (1) Every one who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part [Pt. XI – Wilful and Forbidden Acts in Respect of Certain Property (s. 428 to 447.1)], wilfully to have caused the occurrence of the event.

Colour of right

(2) No person shall be convicted of an offence under sections 430 to 446 [certain property offences from Part XI] where he proves that he acted with legal justification or excuse and with colour of right.

Interest

(3) Where it is an offence to destroy or to damage anything,

(a) the fact that a person has a partial interest in what is destroyed or damaged does not prevent him from being guilty of the offence if he caused the destruction or damage; and
(b) the fact that a person has a total interest in what is destroyed or damaged does not prevent him from being guilty of the offence if he caused the destruction or damage with intent to defraud.

R.S., c. C-34, s. 386.
[annotation(s) added]

CCC

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
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

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

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
See also: Property and Fraud Offences (Sentencing)

Sentencing Profile

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 two 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) or 18 months jail 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
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 430(3), (4), (4.1), (4.2), (5) or (5.1) any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 430(4.11) [mischief to war memorials] any X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 430(2) [mischief causing danger to life] N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

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.

Principles

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.

Ranges

see also: Mischief (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
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]
  • Periods of imprisonment of 2 years or more for convictions under s. 430(2) [mischief causing danger to life] are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".
General Sentencing Orders
Order Conviction Description
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 Conviction Description
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.

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

See Also

References