Mischief, Property And Arson Offences Lawyer In Toronto

Mississauga, Brampton And Newmarket Mischief, Property And Arson Offences Lawyer

Commonly Asked Questions

What is mischief to property?
What is the sentence for mischief to property?
What is public mischief?
What is the sentence for public mischief?
What is arson?
What is the sentence for arson?
What are the defences to mischief and arson?
What if I destroy or damage my own property?
What are my Charter rights?
Can the Charter help my defence?
Can I get assistance from Legal Aid Ontario for my case?

Mischief and related offences such as arson are very serious offences that can result in serious jail time. Fighting mischief and related charges such as arson requires a highly skilled and experienced defence lawyer. As a senior criminal lawyer in legal practice for over 38 years, I have the knowledge and the experience to fully understand the charges you are facing and to conduct a thorough review of the evidence against you. I will provide you with an honest and realistic assessment of your case and help you understand what to expect throughout the process.

If your case requires a jury trial, I have the necessary experience, advocacy skills and confidence to convincingly argue your case to the jury.

Call Defence Lawyer Anthony De Marco For A Free Consultation

Contact my Toronto, Ontario, office today to discuss your mischief, property or arson case. I offer a free 30-minute consultation. For your convenience, I offer reasonable payment plans. I also accept Legal Aid in some cases. You can reach me by phone at our office or toll free at 1-888-399-3164 or by e-mail.

What Is The Offence Of Mischief To Property And The Applicable Sentence?

Mischief to property is the offence of destroying or damaging another person’s property, or public property, and includes obstructing, interrupting or interfering with the lawful use, enjoyment or operation of property. The offence of mischief to property also applies to another person’s computer data or public computer data.

Section 430 of the Criminal Code of Canada provides in part as follows:

430 (1) Every one commits mischief who wilfully
1. (a) destroys or damages property;
2. (b) renders property dangerous, useless, inoperative or ineffective;
3. (c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
4. (d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.
(1.1) Everyone commits mischief who wilfully
1. (a) destroys or alters computer data;
2. (b) renders computer data meaningless, useless or ineffective;
3. (c) obstructs, interrupts or interferes with the lawful use of computer data; or
4. (d) obstructs, interrupts or interferes with a person in the lawful use of computer data or denies access to computer data to a person who is entitled to access to it.
(2) Every one who commits mischief that causes actual danger to life is guilty of an indictable offence and liable to imprisonment for life.
(3) Every one who commits mischief in relation to property that is a testamentary instrument or the value of which exceeds five thousand dollars
1. (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
2. (b) is guilty of an offence punishable on summary conviction.
(4) Every one who commits mischief in relation to property, other than property described in subsection (3),
1. (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
2. (b) is guilty of an offence punishable on summary conviction.

Mischief to property includes interfering with another person’s enjoyment of his or her property and may, for example, include interfering with the enjoyment of property by making excessive noise.

What Is The Sentence For Mischief In Relation To Computer Data?

Subsection 430(5) and subsection 430(5.1) of the Criminal Code of Canada provide as follows:

430(5) Everyone who commits mischief in relation to computer data
- (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
- (b) is guilty of an offence punishable on summary conviction.
(5.1) Everyone who wilfully does an act or wilfully omits to do an act that it is their duty to do, if that act or omission is likely to constitute mischief causing actual danger to life, or to constitute mischief in relation to property or computer data,
- (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
- (b) is guilty of an offence punishable on summary conviction.

Mischief In Relation To An Identifiable Group

If a person commits mischief in relation to property and the commission of the offence is motivated by bias, prejudice or hate for an identifiable group, such as a racial group, subsection 430(4.1) creates a separate offence with respect to such mischief. Also, mischief relating to war memorials is made a separate offence by subsection 430(4.11) and mischief in relation to cultural property is made a separate offence by subsection 430(4.2).

Can Someone Be Found Guilty Of Mischief In Relation To One’s Own Property?

A “legal justification or excuse or colour of right” may provide an accused with a defence to mischief. The burden is on the Crown to disprove any legal justification or excuse or colour of right.

Section 429 of the Criminal Code of Canada provides as follows:

429 (1) Every one who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part, wilfully to have caused the occurrence of the event.
(2) A person shall not be convicted of an offence under sections 430 to 446 if they act with legal justification or excuse or colour of right.
(3) Where it is an offence to destroy or to damage anything,
- (a) the fact that a person has a partial interest in what is destroyed or damaged does not prevent him from being guilty of the offence if he caused the destruction or damage; and
- (b) the fact that a person has a total interest in what is destroyed or damaged does not prevent him from being guilty of the offence if he caused the destruction or damage with intent to defraud.

A “colour of right” is an honest belief in a state of facts which, if they existed, would be a legal justification or excuse. The destruction of one’s own property is not an offence unless the offence was committed with the intent to defraud. A mistaken belief that the property belonged to the accused is a defence. If the accused’s property is subject to a mortgage, the accused only has a partial interest in the property and not a total interest in the property.

What Is The Offence Of Public Mischief?

The offence commonly referred to as public mischief is the offence of mischief committed with respect to property that is public property, or mischief that interferes with a person’s use of public property. The offence of public mischief is captured by subsection 430(1)(c) and subsection 430(1)(d). An example of public mischief with respect to the enjoyment of property is an offence that interferes with the activities that might take place on public property and might include preventing someone from using the public property.

There is also a specific offence of public mischief set out in Section 140 of the Criminal Code of Canada which reads as follows:

140 (1) Every one commits public mischief who, with intent to mislead, causes a peace officer to enter on or continue an investigation by
- (a) making a false statement that accuses some other person of having committed an offence;
- (b) doing anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself;
- (c) reporting that an offence has been committed when it has not been committed; or
- (d) reporting or in any other way making it known or causing it to be made known that he or some other person has died when he or that other person has not died.
(2) Every one who commits public mischief
- (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
- (b) is guilty of an offence punishable on summary conviction.

What Is The Offence Of Mischief Endangering Life?

The offence of mischief endangering life refers to the offence set out in subsection 430(2) which is punishable by a maximum penalty of imprisonment for life. The mischief must cause actual danger to life for the offence to be established. Throwing something off a balcony onto a public walkway may or may not establish mischief endangering life depending on the circumstances.

What Is Arson?

Section 433 of the Criminal Code of Canada provides as follows:

433 Every person who intentionally or recklessly causes damage by fire or explosion to property, whether or not that person owns the property, is guilty of an indictable offence and liable to imprisonment for life where
- (a) the person knows that or is reckless with respect to whether the property is inhabited or occupied; or
- (b) the fire or explosion causes bodily harm to another person.

Section 434 of the Criminal Code of Canada provides as follows:

434 Every person who intentionally or recklessly causes damage by fire or explosion to property that is not wholly owned by that person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
434.1 Every person who intentionally or recklessly causes damage by fire or explosion to property that is owned, in whole or in part, by that person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years, where the fire or explosion seriously threatens the health, safety or property of another person.

Section 435 of the Criminal Code of Canada provides as follows:

435(1) Every person who, with intent to defraud any other person, causes damage by fire or explosion to property, whether or not that person owns, in whole or in part, the property, is guilty of
- (a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or
- (b) an offence punishable on summary conviction.
(2) Where a person is charged with an offence under subsection (1), the fact that the person was the holder of or was named as a beneficiary under a policy of fire insurance relating to the property in respect of which the offence is alleged to have been committed is a fact from which intent to defraud may be inferred by the court.

Section 436 of the Criminal Code of Canada provides as follows:

436 (1) Every person who owns, in whole or in part, or controls property and who, as a result of a marked departure from the standard of care that a reasonably prudent person would use to prevent or control the spread of fires or to prevent explosions, is a cause of a fire or explosion in that property that causes bodily harm to another person or damage to property is guilty of
- (a) an indictable offence and liable to imprisonment for a term of not more than five years; or
- (b) an offence punishable on summary conviction.
(2) Where a person is charged with an offence under subsection (1), the fact that the person has failed to comply with any law respecting the prevention or control of fires or explosions in the property is a fact from which a marked departure from the standard of care referred to in that subsection may be inferred by the court.

What Are Possible Defences To Mischief Or Arson?

There are several defences to charges of mischief or arson, including that the accused lacked the necessary intent to commit the offences, that the accused cannot be identified as the perpetrator, and that the commission of an offence did not occur since, for example, a fire occurred as a result of an accident. Sometimes fires occur spontaneously. Proof of arson will therefore usually require expert evidence regarding the cause of the fire.

DNA And Other Forensic Evidence

Forensic evidence, such as DNA evidence, is just one type of evidence that the Crown can try to introduce against a person accused of a crime. The defence can challenge the admissibility of forensic evidence on the basis of relevance, prejudice or that there is a lack of a sufficient scientific foundation to make the evidence reliable and worthy of being admitted, in other words, the forensic evidence is inadmissible because it is based on “junk science”.

Over the years, there have been several types of forensic evidence that have been rejected by the courts in the United States and, to a lesser extent, Canada, including voice print identification, comparative bullet lead analysis and several indicators of arson dependent on visual cues.

Likewise, there are various other types of forensic evidence which are possibly unreliable, such as microscopic hair comparison, and “pattern comparison” evidence such as bite marks, tire marks and handwriting.

Even in cases where the forensic evidence is ruled admissible, the defence can still try to weaken the impact of the evidence by arguing, for example, that the results of the forensic testing were the subject of “motivated perception”. In other words, the scientist who did the testing interpreted the results so as to support his or her expectations or the expectations of the police or Crown prosecutors. The defence can argue, or call evidence to show, that the forensic examiner should have first tested the evidence blindly without knowing anything about the case in order to avoid a subconscious bias. Studies have shown that even the opinion of fingerprint analysts can be affected by the analysts’ preconceived notions about the case. Also, there is always a risk of a false positive. Moreover, if the laboratory that completed the testing, such as the Centre of Forensic Sciences, is known to have made errors on occasion in the past, the defence can argue that the error rates should also be entered in evidence.

In appropriate cases, and where funds permit, the evidence can be re-tested by an independent laboratory for verification.

A good defence lawyer should know the weaknesses of specific scientific techniques or seek out an appropriate defence consulting expert to learn about and present evidence regarding those weaknesses.

**Pre-Trial Charter Applications**

Often, the best defence to a criminal charge involves a challenge to the investigation that resulted in the arrest of the accused or the collection of evidence against the accused. The police are not allowed to breach the rights that are guaranteed to the accused by the Canadian Charter of Rights and Freedoms.

I will investigate any possible Charter breaches by carefully reviewing the Crown disclosure documents, including the documents used by the police to obtain search warrants for the home, car or other property of the accused, and the documents used by the police to obtain production orders, such as for cell phone records and wiretap authorizations.

If I detect any violation of the Charter rights of the accused or violation of acceptable investigative procedures established by the courts, I will proceed with an application asking for the exclusion of evidence from the trial of the accused obtained illegally by the police, including the statements of the accused and other evidence seized during the investigation.

I have an established reputation for success in pre-trial applications. Winning a Charter application will result in the exclusion of evidence if the court determines that not excluding the evidence will bring the administration of justice into disrepute. The exclusion of evidence often results in a finding of not guilty if the Crown’s remaining evidence is insufficient to prove that the accused committed the offence beyond a reasonable doubt.

I have the necessary experience, research skills, writing skills, and advocacy skills to prepare and effectively argue pre-trial Charter applications. The value of legal writing skills cannot be overstated since proceeding with pre-trial Charter applications will require the preparation of several documents including a Notice of Application, an Affidavit, and a Factum setting out the relevant facts and summarizing the relevant case law.

Electing To Have A Preliminary Inquiry

In cases in which a Defendant is exposed to a possible period of 14 years or more in jail, the Defendant will have the right to proceed with a preliminary inquiry in the Ontario Court of Justice and then a trial in the Superior Court of Justice before a court composed of a Judge sitting with a jury or without a jury. In the past, this level of court was referred to as “High Court”.

The completion of a preliminary inquiry is not mandatory. The Defendant has the right to waive the preliminary inquiry and to proceed directly to trial in either the Ontario Court of Justice or the Superior Court of Justice. If the trial is to be completed in the Superior Court of Justice, the waiver of the preliminary inquiry will require the consent of the Crown.

At a preliminary inquiry, the Crown is required to call some evidence upon which a properly instructed jury, acting reasonably, may return a verdict of guilt. This is an easy test for the Crown to meet in the vast majority of cases. Accordingly, it is relatively rare for someone who proceeds with a preliminary inquiry to be discharged with respect to all of the charges which he or she is facing. The real value in having a preliminary inquiry is not in the hope of being entirely discharged, thereby bringing the entire criminal proceedings to an end, but in being able to better prepare the case for trial. The defence lawyer will have an opportunity to cross-examine and test the evidence of the primary Crown witnesses. An experienced and skilled defence lawyer can discover the strengths and weaknesses of the Crown witnesses and commence building an effective defence strategy. A preliminary inquiry is especially valuable for the defence in cases involving young, infirm, unreliable or unsavory Crown witnesses.

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