Mischief Offence Lawyer in Brampton

In R. v. Van-Luyk, [2018] O.J. No. 4186 the Court held that in respect of the mental element of the offence of Mischief, the prosecutor must prove that the accused intentionally or recklessly caused one or more of the prohibited acts set out in section 430 of the Criminal Code of Canada. In that case, the accused intentionally damaged the victim’s car by deliberately pouring gasoline onto the front of the car. This rendered it dangerous under section 430(2), and interrupted the victim’s lawful use, enjoyment or operation of the car under section 430(3). Thus, the accused was found guilty of Mischief.

Under section 430(2), where a person is convicted for Mischief that causes actual danger to life, they are guilty of an indictable offence and liable to imprisonment for life. On the other hand, the maximum punishment for normal ‘Mischief Under $5000’ is a term of imprisonment not exceeding two years; for ‘Mischief Over $5000’, the maximum term of imprisonment which can be imposed is a term not exceeding 10 years.

For section 430(2)—and thus the potential liability to imprisonment for life—to apply, the actual danger must be the direct result of the Mischief, and not merely incidental to the Mischief. In R. v. Van-Luyk, [2018] O.J. No. 4186, the fact that the accused was caught on camera pouring gasoline directly towards the engine of the car, and attempting to ignite the gasoline, was sufficient for section 430(2) to apply.

On the other hand, in R. v. Garcia, [2019] O.J. No. 4419, the accused was found to have committed Mischief Under section 430(1), but her actions did not fall under section 430(2). Here, the accused intentionally set a fire on her stovetop, costing her landlord $15,890.11 in repairs for damages to the apartment. Since the accused started the fire intentionally, it was found that she knew that damage to the apartment would ensue, or at least she was reckless to that likely consequence. There was therefore no issue as to the mental or physical elements of Mischief. However, due to evidence from firefighters who arrived on scene that the fire was never likely to spread beyond the accused’s apartment, the Court found that there was no actual danger to life, and section 430(2) was thus found not to apply.

In R. v. Adamovsky, [2018] O.J. No. 6390, the accused had converted the shoreline of the property in which his family lived into a beach. The accused was an artist, and wanted to recreate the beachfront of Christian Island. However, that property was not actually owned by his family, and the owners warned him multiple times not to proceed with his art project. The accused finished his conversion of the shoreline, and was convicted of three counts of Mischief, under sections 430(1)(a) and 430(1)(c). On appeal, the accused argued that he should not have been convicted under section 430(1)(a)—i.e. destroying or altering property—as he had actually improved the land. The Court upheld the conviction; the accused’s subjective views as to whether the Mischief caused damage or improved the land was irrelevant. What mattered was the objective damage caused against the owner’s wishes.