section 430(1)

INTRODUCTION AND BRIEF DESCRIPTION

Section 430 of the Criminal Code of Canada sets out the offence of mischief

SECTION WORDING

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.

EXPLANATION

The offence of mischief encapsulates situations where property is damaged by an accused. The Criminal Code distinguishes the punishments available based on the financial amount of property that has occurred. Typical situations in which mischief charges arise included young offender graffiti type situations, domestic assault disputes where one party temporarily seizes the property of the other such as a cellular phone or set of car keys, or scenarios wherein a person causes damage to a wall or furniture item as a result of anger. While a wide range of punishments are available at law, it is not atypical for a first time offender who is able to pay restitution to receive a conditional discharge for the offence. That said, for facts that include a repeat offender or significant property damage, jail sentences can and do get imposed.

COMMENTARY

Section 430 sets out the criminal offence of mischief and provides four ways in which the crime can be committed. First, pursuant to subsection (a), the actus reus of mischief can be committed by anyone who "...destroys or damages property." This is a relatively straightforward actus reus mechanism. Typical examples would be smashing a bus shelter, keying a car, smashing a TV. Subsection (b) sets out a slightly more nuanced actus reus of "...rendering property dangerous, useless, inoperative or ineffective." Examples of this would include removing the battery from a car engine or remote control, disconnecting cables on an electronic device, or disassembling an item such that it is no longer capable of performing its intended purpose. Subsection (c) sets out another form for the actus reus of mischief, specifically, any act that "...obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property." This mechanism is quite common in the Criminal Courts. It is not uncommon for an individual to be charged with mischief against jointly held property. Thus, an accused who breaks the remote control cannot resort to the defence that they destroyed their own property, if the property is jointly owned. In this respect, subsection (c) deals with interference with lawful use and enjoyment of property. Examples would include temporarily stealing your spouse's cellular phone, keys or other property. Finally, subsection (d) sets out the actus reus of mischief by way of "obstructing, interrupting or interfering with any person in the lawful use, enjoyment or operation of property." This is drafted somewhat more broadly than subsection (c) and relates to interference with the person in their use and enjoyment of property as opposed to the object itself. The section is a hybrid offence, enabling the Crown to elect to proceed by way of summary conviction of by indictment. The punishments available are found at section 430(3). Notably, subsection 430(2) provides that in cases where the mischief causes actual danger to life, a potential life sentence can be imposed.

STRATEGY

It is not unusual for the police to have pictures of the allegedly damaged property, as well as a witness statement attesting to the fact that the property was damaged by the accused. One of the fertile areas of attack is via the term "wilfully." That is, the Crown must prove that the property was damaged wilfully. This will typically be dependent on witness testimony, which would be subjected to cross examination. Thus, even with pictures demonstrating the damaged nature of the property, and accused could still argue that the property was damaged accidentally, or inadvertently. Consider a situation where in the heat of an argument, a picture frame is damaged. If the facts are such that the frame fell in the midst of a melee, then the argument would be that the frame was merely damaged accidentally, and thus the mens rea component has not been met. Similarly, depending on the facts of the case, the defence could argue that the property in question was already damaged, or that the Crown hasn't proven that the property was not already in that condition prior to the accused's involvement.

QUESTIONS AND ANSWERS

Q.

Can I be convicted of mischief to my own property?

A.

If property is jointly held then yes, you can be convicted of mischief to your own property. For example, a husband and wife own a television. In a fit of rage, the husband damages the television screen. While it is true that it is "his" TV, it is also true that it is "her" TV. Thus, he has destroyed his own property, but he has also committed mischief in relation to her property. Thus, a conviction would be entered in such a scenario.

Q.

If I pay for the damage will they withdraw the charge?

A.

The willingness and ability to pay for property that you have damaged is an important consideration for any Crown contemplating the appropriate sanction for the crime of mischief. While repayment - known as restitution - is an important factor, it is not the only factor. Typically, paying for the damages you have caused, if a first offence and moderate facts, can go a long way towards negotiating a milder resolution. However, the Crown will also consider the public interest in prosecution beyond simply repayment, and often the public interest militates in favor of greater sanctions beyond merely payment for the damage.

RELATED CASES

The Manitoba Court of Appeal holds that damage is an essential element of the actus reus for a charge of mischief. A failure on the part of the Crown to show that the property in question was actually damage will be fatal to a conviction. At paragraph 17 the Court holds: "The actus reus element of the offence of mischief to property pursuant to s. 430(1)(a) of the Code (the wilful destruction or damage to property) is complete when one damages property. It is an offence of general intent. R. v. Toma (2000), 147 C.C.C. (3d) 252, 2000 BCCA 494. The judge found that K.R.T. threw the shovel at the car several times. There was very little evidence concerning damage to the car. The judge made no finding of damage to the car. Without damage there is no mischief to property pursuant to s. 430(1)(a)."
After a night of drinking, the accused entered into an abandoned property and proceeded to throw flowerpots and plants onto the floor and carpets, ripping coat-hooks from the wall, removing frozen meats from the freezer, and damaging pictures and light fixtures within the unit, causing a substantial amount of damage. The accused testified that he had suffered a blackout during the episode. The question for the Court was whether the offence of mischief was a general or specific intent offence. The court held that mischief was a general intent offence, and thus the requisite mens rea of the offence is intentionally or recklessly causing the damage. The defence of self-induced intoxicate thus, did not apply.

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