Public Mischief (Offence)

From Canadian Criminal Law Notebook
Jump to: navigation, search


Public Mischief
s. 140 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 6 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-charge, or Judge
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 six months jail and/or a $5,000 fine
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to public mischief are found in Part IV of the Criminal Code concerning "Offences Against the Administration of Law and Justice".

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 140 [public mischief] Hybrid Offence(s) Yes Yes, if Crown proceeds by Indictment

Offences under s. 140 are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Release

Offence(s) Attendance Notice
Without Arrest

s. 496
Summons
Without Arrest
s. 497
Release By
Arresting Officer
On Attendance Notice
s. 497
Release By
Officer-in-Charge
On a Promise to Appear
Undertaking or Recognizance
s. 498
Release By
a Judge or Justice
on a PTA, Undertaking or Recog.

s. 515
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 140 OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 140, the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515.

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

A peace officer who charges a person under s. 140 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 offences 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
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Public mischief
140. (1) Every one commits public mischief who, with intent to mislead, causes a peace officer to enter on or continue an investigation by

(a) making a false statement that accuses some other person of having committed an offence;
(b) doing anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself;
(c) reporting that an offence has been committed when it has not been committed; or
(d) reporting or in any other way making it known or causing it to be made known that he or some other person has died when he or that other person has not died.

Punishment
(2) Every one who commits public mischief

(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. 140; R.S., 1985, c. 27 (1st Supp.), s. 19.


CCC


Proof of the Offence

Proving public mischief under s. 140 should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit conveyed information to a peace officer, directly or indirectly, by words, writing, or conduct
  5. the information conveyed was a "false statement"
  6. the culprit caused the "peace officer to enter or continue an investigation" by doing one of the following:
    1. "making a false statement that accuses some other person of having committed an offence";
    2. "doing anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself";
    3. "reporting that an offence has been committed when it has not been committed"; or
    4. "reporting or in any other way making it known or causing it to be made known that he or some other person has died when he or that other person has not died."
  7. the culprit intended to mislead.

Interpretation of the Offence

Public mischief consists of causing a peace officer to begin or continue an investigation.

There are largely two "categories" of mischief under s. 140(1)(c). There is false accusations against an anonymous individual so as to evade liability and then there is false accusations against an identified individual for purposes of revenge or punishment.[2]

The report does not need to be made directly to police. Other agents of the state will likely suffice.[3]

Purpose
The purpose of the offence of public mischief is to "protect innocent persons 'from the grievous and fearful consequences that can flow from false accusations".[4]

Section 140(1)(b) intends to "protect the integrity and efficiency of police investigations into crime."[5]

Subject Matter of Diversion
Under s. 140(1)(b) it is not necessary to prove that the diversion was away from the accused himself. Any false statement will do.[6]

"Offence"
"Offence" can mean both Criminal Code offences as well as provincial offences of a penal nature. [7]

"Reporting"'
"Reporting" is not restricted to reporting to police and can include others such as Children's Aid.[8]

Actual Investigation Not Needed
The accused can be convicted of attempted public mischief where the officer receiving the report does not undertake an investigation because the accused is not believed.[9]

Voluntariness Voir Dire Not Necessary
There is no need for a voluntariness voir dire to determine if a statement was made to a police officer in order to make out the offence.[10]

"Statement"
Section 118 defines "statement" as meaning "an assertion of fact, opinion, belief or knowledge, whether material or not and whether admissible or not".

Sufficiency of Charge
Section 585 states:

Sufficiency of count charging perjury, etc.
585. No count that charges

(a) perjury,
(b) the making of a false oath or a false statement,
(c) fabricating evidence, or
(d) procuring the commission of an offence mentioned in paragraph (a), (b) or (c),

is insufficient by reason only that it does not state the nature of the authority of the tribunal before which the oath or statement was taken or made, or the subject of the inquiry, or the words used or the evidence fabricated, or that it does not expressly negative the truth of the words used.
R.S., 1985, c. C-46, s. 585; 1992, c. 1, s. 60(F).


CCC

General Terms Defined
Section 2 defines peace officer.

  1. R v Kovac-Rail, 2000 BCSC 167 (CanLII) at para 18
  2. R v. Delacruz ([2010] O.J. No. 2425 (Ont. S.C.J.) - sentencing, not a pronouncement of an essential element (-ed.)
  3. R v Delacruz, (2009) 249 CCC (3d) 501 (ONSC) per Baltman J, aff'd at 2013 ONCA 61 (CanLII) at para 28
  4. Delacruz, supra (ONSC) at para 11
    R v JJ, [1988] O.J. No. 1247 at para 14
  5. R v Thompson, 2016 NSPC 75 (CanLII) at para 32
  6. Thompson, ibid. at para 32
  7. R v Howard (1972), 7 CCC 2d 211 (Ont.CA), 1971 CanLII 370 (ON CA)
  8. R v Delacruz, 2013 ONCA 61 (CanLII) upholding (2009) 249 CCC (3d) 501 (ONSC)
  9. R v Whalen (1977), 34 CCC (2d) 557 (BCPC)(*no link)
  10. R v Stapleton (1982), 66 CCC (2d) 231(*no link)

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
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

Sentencing Profile

Maximum Penalties

Offence(s) Crown
Election
Maximum Penalty
s. 140 [public mischief] Summary Election six months jail and/or a $5,000 fine
s. 140 Indictable Election 5 years custody

Offences under s. 140 are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is six months jail and/or a $5,000 fine.

Minimum Penalties
These offences have no mandatory minimum penalties.

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. 140 any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK 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

The primary purpose is not simply avoiding the police from "wast[ing] their time", but it is in the "danger that innocent persons might be prosecuted and lose their livelihoods".[1]

  1. R v Ambrose, 2000 ABCA 264 (CanLII) at para 24

Ranges

see also: Public Mischief (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
DNA Orders s. 140

General Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has 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 mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (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.

See Also

References