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(1) of the Criminal Code of Canada is an essential provision that protects individuals from damage or destruction of their property. The provision criminalizes any act that amounts to destruction, damage, rendering property useless, dangerous or inoperative, or any act that obstructs, interrupts, or interferes with the lawful use of property or the lawful use of property by a person. As such, the provision promotes property rights and the safety of property owners. The provision applies to various situations, including but not limited to vandalism and sabotage. For instance, if a person defaces a building or intentionally breaks someone's vehicle, they would be guilty of committing mischief. Similarly, if an individual sabotages machinery or equipment, they would be committing an offense under the provision. Moreover, Section 430(1) could apply to more subtle forms of mischief. For example, if an employee deliberately made mistakes while operating machinery with the intention of rendering it inoperative, they could be found guilty of mischief. This provision also encompasses any act that obstructs or interferes with the lawful use of someone's property, including public property such as roads or parks. It is worth noting that the provision requires that the act be willful. In other words, the offender must have intended or known that their actions would cause damage or destruction to property or would interfere with the lawful use of property. This requirement distinguishes mischief from accidental damage or loss, which is not an offense under this provision. The punishment for committing mischief under Section 430(1) varies depending on the severity of the offense. If the mischief causes damage or destruction to property worth more than $5000, the offender can be sentenced to imprisonment for up to ten years. If the price is less than $5000, but more than $1000, the offender can be sentenced to imprisonment for up to two years. If the damage caused is worth less than $1000, the offender can be fined, imprisoned for up to six months, or both. In conclusion, Section 430(1) of the Criminal Code of Canada plays a crucial role in protecting property and promoting the safety of individuals who own or use property. The provision covers a wide range of actions that amount to mischief, including vandalism, sabotage, and obstruction. While the punishment for the offense varies, the courts can impose a severe punishment, including imprisonment, for severe offenses that cause damage or destruction to property. Therefore, this provision is a vital tool in promoting public safety and ensuring the protection of property rights.

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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