Canadian Criminal Law/Offences/Mischief

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Mischief
s. 430 of the Crim. Code
Election / Plea
Crown Election Hybrid
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)
Maximum 6 months jail or $5,000 fine
Indictable Dispositions
Avail. Disp. same as summary
Maximum life (endanger life)
10 years jail (testamentary, over $5,000, or data)
2 years (other)
References
Offence Elements
Sentence Principles
Sentence Digests


Summary[edit]

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.

Legislation[edit]

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.

Mischief in relation to data
(1.1) Every one commits mischief who wilfully

(a) destroys or alters data;
(b) renders data meaningless, useless or ineffective;
(c) obstructs, interrupts or interferes with the lawful use of data; or
(d) obstructs, interrupts or interferes with any person in the lawful use of data or denies access to data to any person who is entitled to access thereto.

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.

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.

Idem
(4) Every one who commits mischief in relation to property, other than property described in subsection (3),

(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.

...

Idem
(5) Every one who commits mischief in relation to 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.

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.

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.

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

Proof of Offence[edit]

Mischief Under $5,000 and Over $5,000
The Crown should prove as part of its case:

  1. identity of accused
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. Proof of ownership by someone other than accused [1]
  5. the accused damaged the property
  6. the manner in which the damage occurred
  7. the damage was wilfully or recklessly
  8. the state of the property before damage
  9. the state of the property after damage
  10. value of property damaged
  11. no colour of right

Mischief s. 430(2): causes actual danger to life
In addition to the elements for mischief, the crown should also prove:

  1. the manner in which lives were endangered

Mischief s. 430(1.1): in relation to data
In addition to the elements for Mischief, the crown should also prove:

  1. does any of the following:
    1. destroys data;
    2. alters data;
    3. "render data meaningless, useless or ineffective";
    4. "obstructs, interrupts or interferes" with
      1. "the lawful use of data"; or
      2. "any person in the lawful use of data or denies access to data to any person who is entitled to access thereto."
  1. see R. v. Power (1995), 141 N.S.R. (2d) 161, 403 A.P.R. 161 (N.S.S.C.).

Interpretation[edit]

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

"Enjoyment under s. 430(1)(d) is viewed from a subjective stand-point referring to the pleasure taken from the use of the property.[3]

  1. R. v. Quickfall 1993 CanLII 3509 (QC CA), (1993), 78 C.C.C. (3d) 563, at p. 566 (Q.C.A.)
  2. R. v. Jeffers, 2012 ONCA 1at 18-23
  3. R. v. Nicol, 2002 MBCA 151 (CanLII)

Danger to Life (430(2))[edit]

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.

  1. R v Nairn (1955), 112 C.C.C. 272, (1955) N.J. No. 4 (NFLD C.A.), at page 273

In Relation to Data (430(1.1))[edit]

Mischief in relation to data can underlie a charge of unauthorized use of a computer.

Ownership[edit]

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. Forsythe (1986), 70 A.R. 294 (C.A.)
  2. Williams v. Phillips (1957), 41 Cr.App.R. 5 (C.A.); Pace, [1965] 3 C.C.C. 55 (N.S.C.A.)

Case Digests[edit]