Mischief to Data (Offence)

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Mischief
s. 430(1.1), (5) 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)* (* varies)
Minimum	None
Maximum	2 years incarceration (other) 10 years incarceration (test., over $5k, data) Life (endanger life)
Reference
Offence Elements Sentence Digests

Overview

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(1.1), (5) [mischief to data]	Hybrid Offence(s)		(* only if Crown proceeds by Indictment)	(under 14 years max)

Offences under s. 430(1.1), (5) [mischief to data] 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(1.1), (5)[mischief to data]	Template:ReleaseProfileAll

When charged under s. 430(1.1) [mischief to data], 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.

Fingeprints and Photos

A peace officer who charges a person under s. 430 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(1.1) [mischief to data]

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

Offence Wording

430.
...

Mischief in relation to computer data

(1.1) Everyone commits mischief who wilfully

(a) destroys or alters computer data;

(b) renders computer data meaningless, useless or ineffective;

(c) obstructs, interrupts or interferes with the lawful use of computer data; or

(d) obstructs, interrupts or interferes with a person in the lawful use of computer data or denies access to computer data to a person who is entitled to access to it.

...

Mischief in relation to computer data

(5) Everyone who commits mischief in relation to computer data

(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.

...

Definition of computer data

(8) In this section, computer data has the same meaning as in subsection 342.1(2).
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

		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(5)	mischief to data	"...did commit mischief in relation to data by wilfully [describe act, including whether it include the destruction, alteration of computer data...] contrary to section 430(5) of the Criminal Code." [1] [2]

Proof of the Offence

Proving mischief in relation to data under s. 430(1.1) should include: ☐ the underlying elements to mischief to property; and ☐ the culprit does any of the following: ☐ destroys data; ☐ alters data; ☐ "render data meaningless, useless or ineffective"; ☐ "obstructs, interrupts or interferes" with ☐ "the lawful use of data"; or ☐ "any person in the lawful use of data or denies access to data to any person who is entitled to access thereto."

Interpretation of the Offence

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.

Mistake of Proper Policy

Mistaken understanding of the proper use policy may provide for a defence.

"Colour of Right"

• see Colour of Right

Computer Data

342.1
...

Definitions

(2) In this section,
...
“computer data” means representations, including signs, signals or symbols, that are in a form suitable for processing in a computer system;
...
“computer system” means a device that, or a group of interconnected or related devices one or more of which,

(a) contains computer programs or other computer data, and

(b) by means of computer programs,

(i) performs logic and control, and

(ii) may perform any other function;

...
R.S., 1985, c. 27 (1st Supp.), s. 45; 1997, c. 18, s. 18; 2014, c. 31, s. 16.

– CCC

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.

– 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, 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 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.

– CCC

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

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

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 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 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
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.

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

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 430 (2), (3), (4.1), (4.11), (4.2), (5), or (5.1)	For conviction under s. 430(2) [mischief causing danger to life] , a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b). If an offence under s. 430(3), (4.1), (4.11), (4.2), (5), (5.1) is prosecuted by indictment, a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).
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 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.

History

• History of Mischief Offences

See Also

• Mischief to Cultural Property (Offence)
• Mischief to Data (Offence)

References

• Pre-Trial and Trial Motions Checklist