Consequences of a First-Time Criminal Mischief Charge in Ontario

If you’ve been charged with criminal mischief for the first time in Toronto, it’s essential to know what the charge means, what criminal procedures will follow, the potential consequences of a conviction, and how you can reduce the impact of these consequences by pushing for the charges to be dropped.

Otherwise, you could be saddled with harsh penalties and a lifelong criminal record that follows you everywhere you go. That’s a big price to pay for an honest mistake or a lapse of judgement, especially if you’ve never faced any criminal charges before.

Here’s what you need to know about a first-time criminal mischief charge…

Many defendants of criminal mischief charges do not see their actions as criminal at all and are surprised at having to answer a criminal charge in court.

Section 430 (1) of the Criminal Code is quite unspecific when it comes to criminal mischief, providing law enforcement in Ontario with wide scope for pressing charges against suspects:

430 (1) Every one commits mischief who wilfully

1. destroys or damages property;
2. renders property dangerous, useless, inoperative or ineffective;
3. obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
4. obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property

The severity of punishments for a criminal mischief charge is graded by the value of the alleged property damage: either over or under $5,000.

The most common reasons for criminal mischief charges

The types of actions that can lead to first-time criminal mischief charges are wide-ranging. The most common examples in the Ottawa area result from damage to another individual’s property—due to:

• Road rage
• Parking lot disputes
• Disputes with neighbours
• Disputes between family members
• Disputes between tenants and landlords
• Romantic partner disputes (or their exes)
• Drunken behavior
• Revenge for perceived wrongdoing
• Tagging/graffiti
• School and workplace pranks

However, sometimes no physical damage to property is caused and the police can still press criminal mischief charges. The above definition (d) “obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property” is open to interpretation and provides leeway for police officers to press charges without any physical property damage.

For instance, sometimes, the police will arrest and charge an individual with criminal mischief for improper behavior in public, such as running onto the field at a baseball game.

Any individual arrested for criminal mischief can expect a standard criminal procedure as they enter the criminal justice system in Ontario.

Mischief is not a summary offence. The Crown can choose to proceed summarily but at a minimum, it is considered a Crown-elect indictable offence. Otherwise, it is a straight indictable offence, which is more likely if the value of the damage is over $5,000. The police have a legal right to fingerprint and take photographs of suspects, helping them to check for and investigate other crimes.

Many people have the same names and dates of birth so fingerprinting confirms identification and ensures the right individual is charged.

The police may provide a first-time defendant with a Form 9 Appearance Notice or Form 10 Undertaking with a court date, fingerprint, and conditions for their release—if they are confident that the individual will show up. Alternatively, the police will fingerprint the individual at the police station while under arrest.

First-time defendants are generally released either by this process or, if more serious, with a bail release with a court date—but not before being fingerprinted, photographed, and attending court.

Besides electronic copies of full hand/palm/fingerprints and mug shots (photographs taken from both sides and in front), the police will photograph any distinctive markings on an individual, such as tattoos, scars, body piercings or other identifying features.

Other information that the police may collect includes documentation of unique identifiers such as place of birth, color of hair/eyes, known aliases, etc.

All information will be forwarded by the fingerprinting team to the federal RCMP CPIC database, which is accessible to all law enforcement agencies in Canada, the U.S., the UK, Australia, and New Zealand.

Because mischief is considered a moral turpitude offence and has an indictable classification, the consequences beyond the time spent incarcerated can be severe.

Even a first-time criminal mischief charge has serious potential consequences. These not only include the threat of incarceration but also future problems associated with travel (to the U.S. and other countries) as well as career and immigration status issues.

Mischief under $5,000 is considered a Crown-elect indictable offence with a maximum penalty of two years in prison when prosecuted by indictment. If prosecuted summarily, the offence carries a maximum of six months in jail.

For mischief over $5,000, a maximum penalty of 10 years in prison applies to an indictment.

Because of the potential severity of the penalties even for a first-time offence, a criminal defence lawyer will work actively to either have the mischief charges dismissed (dropped) or to limit the consequences by downgrading the charges or having the case proceed summarily rather than by indictment.

In the best-case scenario, the charges are dismissed. This means that the defendant is not prosecuted and will not receive a conviction. This is sometimes possible in exchange for the accused undertaking certain tasks, such as:

• Making a payment of restitution
• Agreeing to undergo counselling (e.g., for anger management or alcohol use)
• Making charitable donations
• Agreeing to enter into a peace bond
• Writing a letter of apology

Of these, the two most effective strategies to mitigate a mischief case are usually to agree to counselling and/or make a restitution payment to a party that has suffered a financial loss from the accused’s actions.

However, the decision whether to drop the charges rests entirely with the Crown Prosecution— and dropping charges is not done lightly if it is not in the public interest to do so.

Even if the charges are dropped, your lawyer will need to ensure all police information records that can be destroyed are destroyed. This will include fingerprints, photographs, and any other information stored in the federal CPIC database.

If you are facing criminal mischief charges for the first time and have no prior criminal record, you have more chance of leniency and flexibility being shown in your case, especially if you are represented by a seasoned criminal defence lawyer who can negotiate on your behalf.

For legal advice about a criminal mischief charge, speak to one of our criminal defence lawyers in Ottawa during a free consultation.