Mischief Lawyers in Canada

The Crown is the prosecutor. A person charged with an offence is presumed innocent until proven guilty, and that is a right in section 11(d) of the Canadian Charter of Rights and Freedoms.

Section 430(1) names four kinds of conduct, each joined by the word or. They are destroying or damaging property, rendering it dangerous, useless, inoperative or ineffective, obstructing, interrupting or interfering with its lawful use, enjoyment or operation, and doing the same to a person in the lawful use, enjoyment or operation of property. Section 430(1.1) lists the same kinds of conduct for computer data: destroying or altering it, rendering it meaningless, useless or ineffective, and obstructing or interfering with its lawful use.

The conduct must be wilful. Under section 429(1), a person who causes an event by doing an act, or by omitting an act that it is their duty to do, knowing that it will probably cause the event and being reckless whether it occurs, is deemed to have caused it wilfully.

Two other rules matter. Under section 430(6), a person does not commit mischief only because they stop work as a result of a failure to agree with an employer on a matter relating to employment, and section 430(7) gives a similar protection to a person who attends at or near a dwelling-house only to obtain or communicate information.

The maximum depends on which part of section 430 applies. Mischief that causes actual danger to life is an indictable offence with a maximum of imprisonment for life (section 430(2)). Mischief in relation to property that is a testamentary instrument, or whose value exceeds $5,000, carries up to ten years on indictment or can be prosecuted by summary conviction (section 430(3)). Mischief in relation to other property carries up to two years on indictment or can be prosecuted by summary conviction (section 430(4)).

Mischief in relation to computer data carries up to ten years on indictment, or summary conviction (section 430(5)). Mischief in relation to certain buildings and objects, such as a place of worship or an educational institution, carries up to ten years on indictment or summary conviction if the mischief is motivated by bias, prejudice or hate based on a ground the section lists. A further subsection deals with a building or structure that serves as a monument to those who died in a war, and it sets minimum punishments: a fine of not less than $1,000 for a first offence, imprisonment for not less than 14 days for a second offence and not less than 30 days for each later one.

Where the law gives a summary conviction option and sets no other penalty, section 787(1) provides a fine of up to $5,000, imprisonment of up to two years less a day, or both. A maximum is a ceiling, not a prediction of the sentence.

Section 429(2) says a person shall not be convicted of an offence under section 430 if they act with legal justification or excuse or colour of right. Colour of right is a legal term, and whether it applies is a question for the court on the evidence.

Section 429(3) deals with ownership. Where it is an offence to destroy or damage anything, the fact that a person has a partial interest in what is destroyed or damaged does not prevent them from being guilty of the offence if they caused the destruction or damage. A total interest does not prevent guilt where the person caused the damage with intent to defraud.

Other issues come from the wording. The Crown must prove the conduct was wilful, that the property or data was what the section describes, and, where the charge depends on value, that the value exceeded $5,000. Who did the act is also a matter of evidence.

Charter rights apply throughout. Section 8 gives everyone the right to be secure against unreasonable search or seizure. Section 10 gives a person on arrest or detention the right to retain and instruct counsel without delay and to be informed of that right. Under section 24(2), evidence obtained in a manner that infringed Charter rights is excluded if admitting it would bring the administration of justice into disrepute.

Under section 730(1), a court may direct that an accused be discharged instead of convicted, where the discharge is in the accused's interests and is not contrary to the public interest. A discharge is not available for an offence with a minimum punishment prescribed by law, or one punishable by imprisonment for fourteen years or for life. A discharge is absolute or on the conditions of a probation order.

Under section 738(1)(a), where there is damage to property as a result of an offence, the court may order restitution in addition to any other measure, in an amount not exceeding the replacement value of the property, less the value of any part that is returned. Whether either measure applies in a given case is for the court.

In Ontario, every charge under the Criminal Code starts in the Ontario Court of Justice, and about 95% of charges are completed there. The Superior Court of Justice generally tries only the most serious indictable offences.

A person who is arrested may be taken before a justice for a release decision. Under section 515, the justice shall make a release order without conditions unless the prosecutor shows cause why detention in custody is justified or why another order should be made. Section 11(e) of the Charter protects the right not to be denied reasonable bail without just cause.

After a conviction on indictment, an appeal goes to the court of appeal under section 675. A person may appeal as of right on a question of law alone. An appeal on a question of fact, or of mixed law and fact, needs leave, and so does an appeal against sentence. A summary conviction appeal in Ontario goes to the Superior Court of Justice sitting in the region, district or county where the case was decided, under sections 812 and 813.

Legal Aid Ontario may pay for a lawyer if the person qualifies and is charged with a crime that could mean jail on conviction, or is 12 to 17 and charged under the Youth Criminal Justice Act. Duty counsel, a lawyer at the courthouse for that day, can advise on rights, ask to delay a court date, act at a bail hearing, help with a guilty plea, speak at sentencing, and meet the Crown, for people who qualify and have no lawyer.

A legal aid certificate pays a roster lawyer, one approved to take legal aid clients, for the length of the criminal case. Applications are online or by phone at 1-800-668-8258.

The Law Society of Ontario keeps a public Lawyer and Paralegal Directory, where a lawyer's licence can be looked up. The Ontario lawyers on this site are listed by city. Nothing on this page ranks or recommends any of them.