Mischief to Cultural Property (Offence): Difference between revisions

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
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	2 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)
Minimum	None
Maximum	10 years incarceration
Reference
	Offence Elements; Sentence Digests;

← Older edit

VisualWikitext

Latest revision as of 13:58, 12 October 2024

This page was last substantively updated or reviewed January 2020. (Rev. # 96590)

< Criminal Law/Sentencing
< Offences

Overview

See also: Mischief to Property (Offence) and Mischief to Data (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".

Pleadings

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)	Preliminary Inquiry
s. 430(4.1) [mischief to religious property], s. 430(4.11) [mischief to war memorials], or s. 430(4.2) [mischief to cultural property]	Hybrid Offence(s)		(* only if Crown proceeds by Indictment)	(under 14 years max)

Offences under s. 430(4.1) [mischief to religious property], 430(4.11) [mischief to war memorials], or 430(4.2) [mischief to cultural property] are hybrid with a Crown election. If prosecuted by indictment, 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(4.1) [mischief to religious property], s. 430(4.11) [mischief to war memorials], or s. 430(4.2) [mischief to cultural property]

When charged under s. 430(4.1), (4.11), (4.2), 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.

Fingerprints and Photos

A peace officer who charges a person under s. 430(4.1), (4.11), (4.2) 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	Serious Criminality Offence s. 36 IRPA
s. 430(4.1) [mischief to religious property], s. 430(4.11) [mischief to war memorials], or s. 430(4.2) [mischief to cultural property]					(by indictment)

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.

[omitted (1.1), (2), (3), (4), (4.1), (4.101), (4.11), (4.2), (5), (5.1), (6), (7) and (8)]
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 (CanLII), (DOJ)

Note up: 430 (1)

Religious Property (430(4.1))

430
[omitted (1), (1.1), (2), (3) and (4)]

Mischief relating to religious property

(4.1) Every one who commits mischief in relation to property that is a building, structure or part thereof that is primarily used for religious worship, including a church, mosque, synagogue or temple, or an object associated with religious worship located in or on the grounds of such a building or structure, or a cemetery, if the commission of the mischief is motivated by bias, prejudice or hate based on religion, race, colour or national or ethnic origin,

(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.

[omitted (4.101), (4.11), (4.2), (5), (5.1), (6), (7) and (8)]
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 (CanLII), (DOJ)

Note up: 430 (4.1)

War Memorials (430(4.11))

430
[omitted (1), (1.1), (2), (3), (4), (4.1) and (4.101)]

Mischief relating to war memorials

(4.11) Everyone who commits mischief in relation to property that is a building, structure or part thereof that primarily serves as a monument to honour persons who were killed or died as a consequence of a war, including a war memorial or cenotaph, or an object associated with honouring or remembering those persons that is located in or on the grounds of such a building or structure, or a cemetery is guilty of an indictable offence or an offence punishable on summary conviction and is liable,

(a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,
(i) for a first offence, to a fine of not less than $1,000,

(ii) for a second offence, to imprisonment for not less than 14 days, and

(iii) for each subsequent offence, to imprisonment for not less than 30 days;

(b) if the offence is prosecuted by indictment, to imprisonment for a term not exceeding 10 years; and

(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than two years less a day.
[omitted (4.2), (5), (5.1), (6), (7) and (8)]
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 (CanLII), (DOJ)

Note up: 430 (4.11)

Cultural Property (430(4.2))

430
[omitted (1), (1.1), (2), (3), (4), (4.1), (4.101) and (4.11)]

Mischief in relation to cultural property

(4.2) Every one who commits mischief in relation to cultural property as defined in Article 1 of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, done at The Hague on May 14, 1954, as set out in the schedule to the Cultural Property Export and Import Act,

(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.

[omitted (5), (5.1), (6), (7) and (8)]
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 (CanLII), (DOJ)

Note up: 430 (4.2)

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
430(4.1) [mischief to religious property]		"..., contrary to section 430(4.1) of the Criminal Code.
430(4.1) [mischief to war memorials]		"..., contrary to section 430(4.111) of the Criminal Code.
430(4.1) [mischief to cultural property]		"..., contrary to section 430(4.2) of the Criminal Code.

Proof of the Offence

Proving mischief in relation to war memorials under s. 430(4.1) should include: ☐ the underlying elements to mischief to property; and ☐ the subject matter of the offence is a war memorial.	Proving mischief in relation to cultural property under s. 430(4.2) should include: ☐ the underlying elements to mischief to property; and ☐ the subject matter is "cultural property as defined in Article 1 of the Convention for the Protection of Cultural Property in the Event of Armed Conflict".

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]

↑ R v Quickfall, 1993 CanLII 3509 (QC CA), 78 CCC (3d) 563, at p. 566 (Q.C.A.), per McCarthy JA and Proulx JA
↑ R v Jeffers, 2012 ONCA 1 (CanLII), 280 CCC (3d) 54, per Laskin JA, at paras 18 to 23
↑ see s. 553(a)
↑ R v Schmidtke, 1985 CanLII 3621 (ON CA), [1985] OJ No 84 (CA), per Robins JA, at p. 4

Enjoyment (430(1))

See also: Mischief to Property (Offence)

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.

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

"Property" under s. 430(3.1)

430
[omitted (1), (1.1), (2), (3), (4) and (4.1)]

Definition of property

(4.‍101) For the purposes of subsection (4.‍1) [mischief relating to religious property, educational institutions, etc.], property means

(a) a building or structure, or part of a building or structure, that is primarily used for religious worship — including a church, mosque, synagogue or temple —, an object associated with religious worship located in or on the grounds of such a building or structure, or a cemetery;

(b) a building or structure, or part of a building or structure, that is primarily used by an identifiable group as defined in subsection 318(4) [advocating genocide – definition] as an educational institution — including a school, daycare centre, college or university —, or an object associated with that institution located in or on the grounds of such a building or structure;

(c) a building or structure, or part of a building or structure, that is primarily used by an identifiable group as defined in subsection 318(4) [advocating genocide – definition] for administrative, social, cultural or sports activities or events — including a town hall, community centre, playground or arena —, or an object associated with such an activity or event located in or on the grounds of such a building or structure; or

(d) a building or structure, or part of a building or structure, that is primarily used by an identifiable group as defined in subsection 318(4) [advocating genocide – definition] as a residence for seniors or an object associated with that residence located in or on the grounds of such a building or structure.

[omitted (4.11), (4.2), (5), (5.1), (6), (7) and (8)]
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 (CanLII), (DOJ)

Note up: 430 (4.‍101)

Defences

430
[omitted (1), (1.1), (2), (3), (4) and (4.1), (4.‍101), (4.11), (4.2), (5) and (5.1)]

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.
[omitted (8)]
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 (CanLII), (DOJ)

Note up: 430 (6) and (7)

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, wilfully to have caused the occurrence of the event.

Colour of right

(2) A person shall not be convicted of an offence under sections 430 to 446 [certain property offences from Part XI] if they act with legal justification or excuse or 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., 1985, c. C-46, s. 429; 2018, c. 29, s. 51

– CCC (CanLII), (DOJ)

Note up: 429 (1), (2) and (3)

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

Offence(s)	Victim Notice of Agreement s. 606(4.1) [SPIO]	Victim Queried for Interest in Agreement s. 606(4.2) [5+ years]	Victim Notice for Restitution s. 737.1	Victim Notice of Impact Statement s. 722(2)
s. 430(4.1) [mischief to religious property], s. 430(4.11) [mischief to war memorials], and s. 430(4.2) [mischief to cultural property]

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

Offence(s)	Crown Election	Maximum Penalty
s. 430(4.1) [mischief to religious property]	summary election	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 430(4.1) [mischief to religious property]	indictable election	10 years incarceration
s. 430(4.11) [mischief to war memorials]	summary election	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 430(4.11) [mischief to war memorials]	indictable election	10 years incarceration
s. 430(4.2) [mischief to cultural property]	summary election	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 430(4.2) [mischief to cultural property]	indictable election	10 years incarceration

Offences under s. 430(4.1), (4.11), (4.2), or (5) are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration under s. 430(4.1) [mischief to religious property], (4.2) [mischief to cultural property], or (4.11) [mischief to war memorials] . 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(4.2) [mischief to cultural property], 18 months incarceration under s. 430(4.1) [mischief to religious property] and (4.11) [mischief to war memorials].

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(4.1) [mischief to religious property], s. 430(4.2) [mischief to cultural property]	any
s. 430(4.11) [mischief to war memorials]	any

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(4.1) [mischief to religious property], (4.11) [mischief to war memorials] or (4.2) [mischief to cultural property]	If an offence under s. 430(4.1) [mischief to religious property], (4.11) [mischief to war memorials], (4.2) [mischief to cultural property] is prosecuted by indictment, a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).

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 His Majesty the King on application of the Crown. NB: does not* apply to summary offences*.
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. NB: does not* apply to summary offences*.

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".

History

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

History of Mischief Offences