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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. vs. A.L. – North Vancouver Provincial Court

Charges: Impaired Driving Causing Death; Impaired Driving Causing Bodily Harm.
Issue: What would be the appropriate sentence, considering the aggravating (high speed, MVA record  & high BAC) and the mitigating factors (genuine remorse).
Result: Rather than a sentence in the range of 8 years, Mr. Mines was able to persuade Crown counsel and the Court, to impose a sentence of 40 months jail, and a 7 year driving prohibiton. 

R. vs. L.T. – Vancouver Provincial Court

Charges: Assault with a Weapon; Uttering Threats.
Issue: Whether the identification evidence was strong enough to support a conviction of our client, who allegedly assaulted and threatened a taxi driver.
Result: Upon Mr. Gauthier pointing out weakness in the evidence relating to  identification of the suspect, Crown counsel entered a stay of proceedings. No criminal record.

R. vs. L.W. – Vancouver Provincial Court

Charges: Aggravated Assault; Breach of Undertaking; Assault police officer; Mischief to property.
Issue: Given the seriousness of the facial injuries to the complainant and the ensuing assault of the arresting police officer, whether a lengthy prison sentence was appropriate.
Result: Mr. Gauthier was able to steer our client through an extensive program of rehabilitation and, after gearing Mr. Gauthier's submissions in a contested hearing, the Court granted our client a conditional sentence of only 3 months, followed by 2 years probation. No jail.

R. vs. L.W. – Vancouver Provincial Court

Charges: Aggravated assault; Assault police officer; assault.
Issue: Notwithstanding that the usual range of sentence is approximately 3 years for aggravated assault, whether a conditional sentence (house arrest) was appropriate.
Result: Mr. Gauthier persuaded Crown to jointly recommend a non-jail sentence. After hearing our submissions, the trial judge granted our client a 3 month conditional sentence, followed by a 2 year probation order.

R. vs. T.J. – North Vancouver Provincial Court

Charge: Theft Under $5000.Issue: Whether there was substantial likelihood of a conviction.
Result: Mr. Gauthier provided information and made representations to Crown counsel which ultimately led Crown to agree that there was no reasonable likelihood of a conviction. Stay of proceedings. No criminal record.

R. vs. M.S. – Burnaby RCMP Investigation

Charges: Assault, mischief under $5000.
Issue: Whether it was in the public interest to proceed with the criminal prosecution.
Result: Mr. Mines was able to persuade the investigating  RCMP officer to allow our client tp apologize to the complainant through Restorative Justice. Police did not seek to have any criminal charges approved. No criminal record.

R. vs. I.K. – Vancouver Provincial Court

Charge: Fraud Over $5000.
Issue: Whether our client would be sentenced to a jail for this $10,000 fraud from his employer.
Result: Notwithstanding that our client had a previous criminal conviction for a similar breach of trust offence, Mr. Gauthier was able to persuade Crown counsel to not seek a jail sentence. After hearing Mr. Gauthier's submissions, the Court sentenced our client to a term of house arrest. No jail.

R. vs. K.Y. – Vancouver Provincial Court

Charges: Assault by choking (x2); assault (x2); mischief under $5000.
Issue: Whether it was in the public interest for the Court to enter a conviction against our client.
Result: Mr. Mines was able to persuade Crown counsel to proceed on only one count of common assault and to stay all remaining charges. After hearing Mr. Mines' submissions, the court granted our client a conditional discharge and placed him on probation for 12 months.No criminal conviction.

R. vs. T.F. – Vancouver Provincial Court

Charges: Theft Under $5,000, Obstructing a Peace Officer, Uttering Threats.

Issue: Whether a jail sentence was appropriate in all the circumstances.

Result: Mr. Johnston was able to direct our client to the appropriate community supports with respect to his rehabilitation. Given the positive change in our client's circumstances, the sentencing judge accepted Mr. Johnston's submission that a community based sentence was appropriate rather than the 60 jail sentence sought by the Crown. No jail.

R. vs. B.K. – Port Coquitlam Provincial Court

Charge: Assault.
Issue: Whether it was in the public interest for our client to be granted a conditional discharge.
Result: Mr. Gauthier was able to persuade Crown counsel to make a joint submission without the necessity of our client being required to complete counselling. After hearing Mr. Gauthier's submissions the court granted our client the discharge. No criminal conviction.

R. v. R.L. – New Westminster Supreme Court

Charge: Sexual Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to continue with the prosecution in this retrial after a deadlocked jury decision.
Result: upon considering all of Mr. Mines' representations, Crown counsel entered a stay of proceedings. No jail. No criminal record.

R. vs. J.H. – Richmond Provincial Court

Charge: Sexual Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to continue with the prosecution in this retrial after a deadlocked jury decision.
Result: upon considering all of Mr. Mines' representations, Crown counsel entered a stay of proceedings. No jail. No criminal record.

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.