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Toronto Criminal Lawyer Mark Zinck

Mischief Defence Lawyer, Toronto


Toronto criminal lawyers routinely defend mischief charges for clients throughout the GTA. Many people are unaware of how easy it is to be charged with mischief charge until it is too late. Mischief charges are a frequently result of 911 calls during domestic disputes.

Definition of Criminal Mischief in Canada

Mischief is the criminal offense of property damage. The Criminal Code of Canada defines the mischief in section 430 to include instances where the accused does any of the following to property that they do not solely own:

(1) destroys or alters 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.

Mischief is one of the most common offences in Canada. There is a distinction between mischief that causes damage above and below $5,000. If the damage cause is found to be beyond $5,000, the accused can be sentenced up to 10 years in prison. The maximum sentence for mischief under $5,000 is two years in prison.

Defending Mischief charges in court

Defending Mischief charges is one of Mark Zinck's primary areas of practice. For our specific site dedicated to defending individuals in Toronto charged with mischief, please see www.TorontoMischiefLawyer.ca

There are several defences available to those charged with mischief offences. Below are some of the most common.

Defence of Identity

In many cases, people are charged with mischief simply because it is reported to the police that "they did it".

The police will then attempt to secure a statement of admission from the accused that they did it, or that they were in the area at the time of the offence, or that they have issues with the property owner, to bolster the case against them.

If the accused is smart, and does not speak to the police, they may have a defence of identity in that it cannot be proved they actually caused the damage. The defence of identity will thus depend on whether there are any eye witnesses or statements by the accused to the police.

Domestic mischief, jointly owned property

In a domestic context, many accused will admit to damaging property that is owned jointly by the couple (marital property).

Perhaps he was angry and put his fist through the wall of the matrimonial home, or smashed some dinnerware or electronics in the house. When the police show up on the door and he tells them he did this, they will charge him with mischief. Mischief is a very common form of domestic charges.

Most accused are unaware that telling this story to the police will result in charges. Further, since they have admitted to the act, the charges become become very difficult to defend (many accused are left having to argue for a discharge in court). Most people are unaware how easy it is to be charged with mischief until it is too late. One call to the police in these circumstances can change a person's life forever.

Property ownership mischief defence

If it can be proven that the damaged property was owned solely by the accused, this is a valid defence to mischief.

It is not illegal to damage your own property. The problem arises so often in the domestic context because the property is arguably owned by both parties.

Lawyers can successful defend mischief charges by introducing evidence showing the defendant to be the sole owner of the property. This can include deeds in only their name, bills of sale, and testimony stating sole ownership (from the accused, the accuser, or third parties). Sometimes the crown will agree to drop the charges if presented with this evidence prior to trial.

If married, is all property jointly owned?

It may be possible to get the court to accept that there is a legal distinction for property that a spouse has a possible claim to because of marriage, and joint ownership. While your wife may have a claim to 50% equity in the matrimonial home in the event of a divorce, it may not legally be considered jointly owned at the time of the dispute.

There is an arguable legal distinction that may support a finding of not guilty. It is notable that such a distinction is relevant in civil cases. For example, creditors can't register claims against a home held solely in the name of a spouse of a debtor.

Mistaken belief in ownership defence

If the accused truly believed that they were the sole owner of the property that was damaged, this may work to support an acquittal for mischief. Mistaken belief of ownership is thus a possible defence.

You will need to provide the judge with clear reasons as to why you believed you were the sole owner of the property.

For example, you smash the windows of a car your boyfriend has given you, and are charged with mischief as a result. You could argue that even though the car was still registered in your boyfriend's name you believed it was your property. In this example, there is also a second, more technical defence that the ownership was transferred despite the lack of title being registered (this is a question of civil property law).

Penalty for Mischief conviction

The penalty for mischief will largely depend on your criminal history, whether it is the only thing you've been charged with, and the specifics of the case.

Most people convicted of mischief will receive probation and have to pay restitution for the amount of damage (if they have financial means).

If there is no criminal record, they may also be granted a discharge allowing them to avoid a criminal record. Sometimes the crown will agree not to prosecute the matter if the facts are minor and restitution has been paid (particularly in instances of jointly owned property and/or with the victim's consent).


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