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Mischief to Property

The Charge

Under s. 430 of the Criminal Code, a person is guilty of mischief if they willfully:

  • Destroy or damage property; or
  • Render property dangerous, inoperative or ineffective; or they
  • Interfere with another person’s use, enjoyment or operation of property.

This offence is meant to protect property that belongs to others. Generally, unless there ae aggravating factors present, a conviction for mischief of property valued at over $5000 will subject the accused to being prosecuted by indictment with a maximum jail sentence of two years. If the property is valued at under $5000, the accused can be found guilty of a summary offence and is liable to imprisonment for up to two years jail, less a day. There is no mandatory minimum sentence that is required.

The Code sets out situations where mischief to property has aggravating aspects, which will call for more serious penalties. Where actual danger to life is created by the mischief, the accused, on conviction, is subject to a maximum sentence of life imprisonment. Where the mischief offence is motivated by bias, prejudice or hate based on colour, race, religion, national or ethnic origin, age, sex, gender identity, or disability, the accused is subject to being prosecuted by indictment with a maximum sentence of 10 years in jail.

The Investigation

To prove a mischief charge, police must gather evidence which includes establishing that the property in question belongs to a person other than the suspect. Additionally, police will need to prove that the damage was caused willfully by the suspect i.e., that they intentionally caused the damage. Typical mischief charges include acts such as causing intentional damage to a vehicle by striking it, kicking it, or “keying” it. Mischief also includes acts such as applying graffiti to public or private property or damaging the property of a spouse or other person in a moment of anger.

Because a mischief to property conviction requires intention or at least recklessness, police will typically seek to obtain a confession from their suspect in order to strengthen their case. As experienced property crime lawyers, we are able to help by providing advice to our clients regarding their rights under the Charter, including their right to remain silent.

Recent Successes

R. v. Y.T. – Richmond Provincial Court

Charge: Assault; Assault by Choking.
Issue: Given the rehabilitative steps we were able to guide our client through, whether there was a public interest in proceeding with criminal charges.
Result: After providing Crown counsel with our client's  positive psychological counselling report, Mr. Gauthier  was able to persuade Crown counsel to enter a stay of proceedings. No criminal record.

R. v. B.K. – Vancouver Provincial Court

Charges: Forcible Entry; Assault.
Issue: Given our client's personal circumstances and the circumstances of the alleged incident, whether ther was a substantial likelihood of a conviction and whether it was in the public interest to proceed with the prosecution.
Result: Upon considering the information provided and representations made by Mr. Gauthier, Crown counsel directed a stay of proceedings, brining the matter to an end. no criminal record.

R. v. B.C. – Prince Rupert Provincial Court

Charge: Sexual Assault.
Issue: Whether Crown could prove that the complainant was credible and reliable in this three day trial that involved an allegation of sexual assault.
Result: After Mr. Gauthier vigorously cross examined the complainant, the trial judge accepted Mr. Gauthier's submissions and found our client not guilty. An acquittal was entered. No criminal record; no jail time.

R. v. A.B. – Richmond Provincial Court

Charge: Theft Under $5000.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed with the prosecution.
Result: After considering Mr. Gauthier's representations regarding the evidence and our client's circumstances, Crown withdrew the charge. No criminal record.

R. v. J.C. – Vancouver Provincial Court

Charges: Uttering a threat; Posession of a weapon (knife) for a dangerous purpose.
Issue: Given our client's circumstances and the circumstances of the incident, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to provide Crown with background information about our client and the incident which caused Crown to conclude it was not in the public interest to continue the prosecution. Stay of proceedings. No criminal record.

R. v. M.M. – North Vancouver Provincial Court

Charges: Theft Under $5000 (shoplifting).
Issue: Whether it was in the public interest to proceed with a criminal prosecution in this $900 shoplifting case.
Result: Mr. Mines was able to provide information to Crown counsel about our client's personal circumstances, resulting in Crown referring our client to the Alternative Measures program. No criminal record.

R. v. J.Z. & Q.M. – Insurance Fraud Investigation

Charges: Fraud Over $5,000.
Issue: Whether our client's were responsible for approximately $15,000 in false claims unknowingly made in their names by a health care provider.
Result: Mr. Gauthier was able to settle with the insurance provider. No criminal charges were forwarded against our clients. Mr. Gauthier was also able to assist with the first steps of recovering the funds from the dishonest health care provider. No criminal record.

R. v. V.N. – Surrey Provincial Court

Charges: Sexual Assault (police investigation).
Issue: Whether there was sufficient evidence to support a criminal prosecution.
Result: Mr. Gauthier opposed the police application to extend the time period they could continue to retain seized evidence and he provided advice to our client in steering him through the investigation. The matter concluded with no criminal charges being forwarded to Crown. No criminal record.

R. v. R.T. – Insurance Fraud Investigation

Charge: Insurance Fraud Under $5,000 investigation.
Issue: Given our client's rehabilitation and repayment of disputed claims, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Mines was able to persuade the insurance company to settle the matter on a civil basis. No criminal charges forwarded. No criminal record.

R. v. G. A.G. – Vancouver Provincial Court

Charge: Assault (domestic).
Issue: Whether there was a substantial likelihood of a conviction in this case.
Result: Mr. Mines was able to persuade Crown counsel that, given the lack of cooperation by the complainant, that there was no prospect of a conviction. Crown counsel did not approve any charges and, on Mr. Mines' representations, agreed to cancel the scheduled court date and to direct police to cancel our client's Undertaking to Appear. No criminal record.

R. v. L.M. – Vancouver Provincial Court

Charge: Mischief Over $5000.
Issue: Whether Crown could prove the value of damage alleged to have been caused by our client.
Result: Mr. Mines was able to persuade Crown counsel that because it could not accurately prove the value of damage, and that our client had taken appropriate steps of self-rehabilitation,  Crown elected to not approve any charges. No criminal record.

R. v. H.K. – Port Coquitlam Provincial Court

Charge: Assault.
Issue: Whether it was in the public interest to proceed with a criminal prosecution in this "road rage" case.
Result: Mr. Mines was able to provide information to Crown counsel about our client's personal circumstances and the circumstances of the incident which resulted in Crown staying the charge after our client completed Alternative Measures. No criminal record.
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The Defence

Identification

To prove a mischief charge, the Crown must prove, beyond a reasonable doubt, the identity of the accused. In many circumstances, absent evidence from an eyewitness that is familiar to the accused, proving identity can be more difficult. As experienced defence lawyers, we understand the issues that can arise at trial regarding the frailties of eyewitness identification. For example, it is often very difficult for a person who has only caught a fleeting glimpse of a suspect to be able to identify them with certainty in the aftermath of the incident. In appropriate cases, we will challenge the Crown’s identification evidence, whether its source is from a witness or from forensic sources, such as fingerprints, shoeprints, video, photographs, or DNA.

We are always pleased when clients contact us in the early stages of being charged with a mischief offence. This is because, absent aggravating factors, we can offer these clients the very best potential outcome – the potential of persuading Crown counsel to not approve any charge at all. Depending on the circumstances of the offence and our client, the case may be dealt with extra judicially so that, in the result, there is no conviction and no criminal record.

Alternative Measures

In appropriate cases, we will obtain a full background briefing from our client and provide submissions to Crown counsel requesting that, rather than proceeding with a criminal prosecution, they allow our client into the Alternative Measures Program, which is, literally, an alternative to the court system. Where a person takes responsibility for a relatively minor criminal act, they may be able to avoid a criminal record by agreeing to complete restorative justice conditions such as community work service. As experienced defence lawyers, we are able to make “without prejudice” requests to Crown counsel to have our clients accepted into the Alternative Measures Program in order to avoid a criminal record.

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.

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