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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. C.L. – Civil Fraud Investigation

Charge: Fraud/Theft from employer.
Issue: Whether it was in the public interest to proceed with criminal charges.
Result: Mr. Johnson was able to negotiate repayment on our client's behalf and obtained a civil release from the employer. No charges were forwarded to Crown counsel. No criminal record.

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

Charges: Assault with a weapon; assault causing bodily harm.
Issue: Given elements of provocation, a potential defence of self-defence, and our client's background as a vulnerable woman, whether it was in the public interest for Crown to continue the criminal prosecution.
Result: Mr. mines was able to persuade Crown counsel to enter a stay of proceedings upon our client succesfully completing the Alternative Measures Program. No criminal record.

R. vs. B.L. – New Westminster Supreme Court (jury).

Charges: Assault with a weapon; assault causing bodily harm.
Issue: Given elements of provocation, a potential defence of self-defence, and our client's background as a vulnerable woman, whether it was in the public interest for Crown to continue the criminal prosecution.
Result: Mr. mines was able to persuade Crown counsel to enter a stay of proceedings upon our client successfully completing the Alternative Measures Program. No criminal record.

R. vs. D.D. – Vancouver Provincial Court

Charges: Fraud Over $5000; Theft Over $5000 (from employer).
Issues: Whether Crown counsel could prove the full amount of the alleged theft and whether our client would be sentenced to jail in this breach of trust case.
Result: Mr. Mines was able to persuade Crown counsel that they could only prove a $49,000 theft rather than the $75,000 allegation. After hearing Mr. Mines' submissions, the Court sentenced our client to an 18 month conditional sentence order. No jail.

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

Charge: Assault causing bodily harm.
Issue: Given the information Mr. Gauthier provided to Crown counsel, whether it was in the public interest to proceed with the criminal prosecution.
Result: Crown stayed the proceedings upon our client entering into the Alternative Measures Program. No criminal record.

R. vs. H.K. – Burnaby RCMP Investigation.

Charges: Mischief Under $5000.
Issue: Given the information Mr. Gauthier was able to provide to the RCMP investigator, whether it was in the public interest for police to forward charges to Crown counsel.
Result: Based on the significant collateral consequences that a criminal prosecution would bring to our client, Mr. Gauthier  persuaded police to not forward any criminal charge whatsoever.

R. vs. H.S. – Vancouver Provincial Court

Charge: Assault causing bodily harm.
Issue: Given the information Mr. Gauthier provided to Crown counsel, whether it was in the public interest to proceed with the criminal prosecution.
Result: Crown stayed the proceedings upon our client entering into the Alternative Measures Program. No criminal record.

R. vs. K.J. – ICBC Fraud Investigation

Charges: Insurance (ICBC) Fraud.
Issue: Whether charges would be forwarded to Crown counsel.
Result: Mr. Gauthier  intervened with the ICBC investigator on our client's behalf and was able to clarify and explain the information that ICBC had flagged as being possibly fraudulent. The matter was resolved with no charges being forwarded to Crown counsel. No prosecution; no criminal record.

R. vs. M.H. – Employee Fraud Investigation

Charges: Theft from Employer.
Issue: Whether the complainant would proceed with a criminal complaint when they discovered $65,000 in fraudulent transactions purportedly committed by our client.
Result: Mr. Johnson was able to successfully negotiate a civil settlement on our client's behalf. No police investigation; no charges; no criminal record.

R. vs. A.C. – Richmond Provincial Court

Charge: Assault.
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest to proceed with the criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown counsel to enter a stay of proceedings upon our client completing the Alternative Measures Program. No criminal Record.

R. vs. N.A. – Vancouver Traffic Court

Charges: Speeding (MVA).
Issue: Whether the police officer could prove that our client was speeding, and whether it was in the public interest to proceed with the trial.
Result: Mr. Gauthier was able to provide information to the police investigator that led to the officer withdrawing the violation ticket prior to the trial. The lack of this conviction prevented our client from a significant driving prohibition.

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

Charges: Aggravated assault; assault with a weapon.,br> Issue: Given the information Mr. Johnson was able to provide to Crown counsel, whether it was appropriate to contnue with the prosecution on the approved charges.
Result: Mr. Johnson was able to persuade Crown counsel to proceed on the lesser charge of assault causing bodily harm. After hearing Mr. Johnson's submissions on our client's behalf, the trail judge sentenced our client to a suspended sentence with 24 months probation. Our client was able to avoid a lengthy jail sentence.

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.