What are defences to mischief?
Under the Criminal Code of Canada, there are many forms of mischief related to property. The most common form of mischief is as a result of vandalism such as graffiti, breaking windows or minor property damage. Despite the relatively minor sounding offence of “mischief”, the offence can carry significant penalties including up to 10 years in prison, a criminal record and impacts on employment opportunities.
In order for an accused to be convicted of mischief, the Crown must prove beyond a reasonable doubt that the accused intentionally committed one of the acts listed in section 430 of the Criminal Code. Simply proving that the accused caused the damage is not sufficient for a mischief conviction. Generally, the Crown must prove:
- Identity of the accused
- Jurisdiction (city and province where act occurred)
- The accused caused the mischief
- Proof of ownership by someone other than the accused
- The damage caused was done willfully or recklessly
- The state of the property before the damage
- Value of the property (above or below $5,000)
If the Crown is unable to prove the essential elements of the offence, the will not be able to secure a conviction. Many times, identity will be a significant issue if there are no witnesses or if the witness only saw the culprit for a fleeting moment.
A full defence to mischief is if the damage was caused by accident. In order to be convicted, the Crown must prove that the accused intended to or was reckless in causing mischief.
Another defence is “colour of right”. This is a defence in which the accused held an honest belief that he or she was legally permitted to conduct the act.