Mischief

Mischief 2020-09-25T20:33:29+00:00

Your Guide to Mischief Charges by Mischief Lawyers in Kelowna

What is Mischief?

Mischief is the unlawful interference with the property of another person. It is separated into two offences based on the cost of alleged damage: over $5,000 and under $5,000. Mischief can be committed in several ways, from the destruction of property to the obstruction of its lawful use.

The provision for mischief in the Criminal Code of Canada is:

Kelowna mischief lawyers

These four methods of committing mischief are quite broad. The most common types of mischief include damage to property, such as:

  • Spray painting a building,
  • Slashing someone’s tires, and
  • Smashing someone’s window.

However, mischief can also include things like pulling a fire alarm, playing loud music late at night, or refusing to leave someone’s property.

In certain circumstances, mischief may be considered more serious, having more significant penalties. For example, mischief relating to a place of worship, educational institution, daycare, community centre, seniors’ residence, war memorial, or cultural property can result in greater punishment. Additionally, the Criminal Code makes specific mention of mischief in relation to computer data and testamentary instruments which come with higher penalties. Finally, mischief that causes actual danger to life may result in life imprisonment.

Punishment for mischief is generally divided into two categories:

  1. The property is valued at more than $5,000
  2. The property is valued at less than $5,000

When addressing mischief by way of damage to property, the Crown Prosecutor will be required to prove beyond a reasonable doubt that

  • Property was damaged,
  • The damage was caused by you,
  • You did not own the damaged property,
  • You did so wilfully, and
  • The approximate value of the property.

Many people will insist that they did not ‘intentionally’ damage property or ‘intentionally’ interfere with its enjoyment. However, the Court need only be convinced that an accused did so ‘recklessly.’ If the Court determines that you were careless while being conscious of a risk or danger, they will deem the actions ‘wilful’. For example, if a person held a loud party that went late into the night, the Court may find they were aware of the risk of interfering with their neighbour’s enjoyment and find that person guilty.

Investigation of Mischief Charges in Kelowna

An investigation of an alleged mischief charge in Kelowna is typically initiated by the alleged victim (or relative or witness). They contact the Kelowna Royal Canadian Mounted Police (RCMP) Service and report it. The police will request a written or videotaped statement from the complainant and any witnesses and will initiate an investigation.

Kelowna area Police take property crimes very seriously and mischief is no exception. The police will typically engage in a thorough investigation to find sufficient evidence to charge. This may include interviewing all witnesses, reviewing any video surveillance, seizing any evidence involved, photographing the scene, and obtaining receipts for damaged property.

After the police have gathered their evidence, they will arrest you if they believe you are the perpetrator. If you are not present at the scene, police will track you down or issue a warrant for your arrest.

After you have been charged, police will provide a package with all the evidence they collected, known as the “disclosure package,” to the Crown Prosecutor. You will have the right to access this disclosure package to see the evidence against you. Once you retain one of our lawyers, we will assist you in obtaining the disclosure package, and we will review it with you to assess the strengths and weaknesses of the Crown’s case, as well as any legal defences that may be available to you.

Bail Process and Conditions for Mischief Charges in Kelowna

How do I get myself or a loved one out on bail for mischief charges in Kelowna?

If you have been charged with mischief, it is not uncommon for police to release you at the scene on a release order. Police will provide you with a Promise to Appear document outlining your charges, and any appearances you must make. This document may also include conditions that you are required to follow while on release.

However, a formal bail hearing may be required to secure your release, particularly if you have a criminal record, or if the allegations are more serious.

The bail hearing must be held within 24 hours, a period that starts from the moment of arrest or detention rather than the time when you are brought to the district office or Courthouse.

On a weekday, you will be transferred from the district office to the Kelowna Courthouse for your bail hearing. The address of the Courthouse is as follows:

Kelowna Courthouse
1355 Water Street
Kelowna BC V1Y 9R3
(250) 470-6900

If you are arrested after approximately 3 p.m., you will be held at the detachment until the following morning, at which time you will be transported to the Courthouse for your bail hearing. Your hearing will be conducted in front of a Provincial Court Judge.

If you are arrested on Friday after approximately 3 p.m., or if you are arrested on a weekend, your bail hearing will be conducted at the detachment via telephone with a Justice of the Peace from the Justice Centre.

Loved ones are not able to contact you while you are detained. The police will not release any information to friends or family due to privacy laws. Your lawyer is the only person allowed to contact you. Once the police have verified your lawyer’s details, they will pass on information about your whereabouts, if requested.

Because of these difficulties while you are held in custody, it is best to appoint a competent defence lawyer as soon as possible to manage the legal processes and communicate with your loved ones. After an arrest, the police must provide you with the opportunity to call a lawyer in private and, if that happens, stop questioning you.

Once you retain one of our experienced criminal defence lawyers, we will begin working to secure your release on bail. We will immediately do the following:

  1. Call in to the district office where you are being held, or the Kelowna Courthouse if you have been transported, and speak to you.
  2. Contact the Prosecutor assigned to the bail hearing to start negotiating your release.
  3. Order and secure a copy of the police information package that details the allegations against you in advance of the bail hearing. This allows the lawyer to make meaningful representations to the Court about why you should be released on bail.
  4. Conduct either an in-person or teleconference bail hearing to secure your release.

When you attend your bail hearing, the Judge will consider:

  • Is detention necessary to secure your attendance in court?
  • Is detention necessary to protect the public from a substantial risk of re-offence?
  • Is detention necessary in all the circumstances to maintain confidence in the administration of justice?

Although it is unlikely that you will be denied bail for this type of charge, tight restrictions may nevertheless be applied to your release. Rest assured, we will work to not only secure your release but also to ensure the least restrictive set of bail conditions (including the minimum cash deposit).

In order for our lawyers to secure less stringent conditions, the Judge will need to be satisfied that you will attend court as required and that you pose no significant risk of harm to the public. This may sometimes be difficult in a mischief case, but not impossible.

Our lawyers are often successful at persuading the Crown Prosecutor in charge of bail to let our clients out. If we can’t convince the Prosecutor, we can conduct a formal bail hearing and work to convince the Court. Even if you are ultimately detained, we can appeal that decision on very short notice through a bail review, which is conducted at the Supreme Court of British Columbia.

Where can I pay for bail for mischief charges in Kelowna?

If you or a loved one are charged with mischief in Kelowna and granted bail, you may be required to provide a cash deposit to secure release. You can pay bail at any court registry (courthouse) in British Columbia. If you live in Victoria, you can pay bail there for someone detained in Kelowna.

The Kelowna court registry is open from 8:30 – 4:30, Monday to Friday. The contact details of the registry office at the Kelowna Courthouse are as follows:

Kelowna Courthouse
1355 Water Street
Kelowna BC V1Y 9R3
(250) 470-6900

To pay your own bail, you can make a payment after your hearing, assuming you have sufficient funds with you to do so.

How do I change my release conditions for mischief charges in Kelowna?

Release on bail with mischief charges may include restrictions that impact your day-to-day life. This could include conditions to refrain from:

  • Interacting with any alleged victim,
  • Attending the alleged victim’s home or place of work,
  • Leaving your house (i.e. house arrest),
  • Staying out beyond a certain time (i.e. curfew),
  • Breaking any laws,
  • Using drugs or alcohol,
  • Possessing weapons,
  • Visiting certain places, and/or
  • Travelling.

The Judge may also impose some additional conditions such as:

  • Residing where approved,
  • Reporting to probation,
  • Attending counselling, and/or
  • Maintaining or seeking employment.

A variety of factors will be considered when determining your precise restrictions, including:

  • Your criminal history,
  • Your physical and mental condition,
  • The nature of the alleged mischief,
  • The likelihood that you will flee,
  • Your history of drug/alcohol usage,
  • Whether you have stable employment,
  • Whether you have stable living arrangements, and
  • Whether you have ties to the community.

If you have already been released, at least for the short term, it is critical that you make arrangements to abide by your conditions until they can be changed. Breaching the terms of your release can result in further charges or a revocation of your bail, as well as a forfeiture of any cash paid to secure your release. It is important to take these conditions seriously.

Once the matter is in court, we can work with the Crown Prosecutor to alter your conditions. This includes either adding exceptions to some of the conditions or eliminating them altogether.

If your court date is far away and you cannot wait until then, we can arrange to have the matter dealt with sooner. Our first priority is always to stabilize your release conditions. That way, you will not feel pressured to plead guilty because of the restrictive terms of your release. Once the conditions are manageable and minimally intrusive to your daily routine, we can focus 100% of our attention on defending the case.

Penalties for Mischief Charges in Kelowna

In cases of simple mischief charges, the likelihood of going to jail if convicted is relatively low. However, the risk of jail time increases dramatically where:

  • The mischief was directed at specified locations, such as a place of worship, educational institution, war memorial, or community centre;
  • It involved a specific type of property such as computer data or testamentary instrument;
  • It caused actual danger to life;
  • It was a “hate crime;”
  • The value of damage is over $5,000; or
  • There are prior convictions.

If any of these factors are present in your case, the Crown will almost always seek a jail sentence.

Because the penalty for mischief depends on the value of the property, there is a wide array of potential sentences if you are found guilty. The penalties can range anywhere from a discharge (i.e. a finding of guilt, but no criminal conviction), to a fine and/or probation, to a period of jail time.

The Criminal Code of Canada outlines the maximum allowable punishment for mischief as follows:

  • For property valued over $5,000 or to a specified type of property: Not more than 10 years of jail time.
  • For property valued under $5,000: Not more than 2 years of jail time.

The potential sentences available to you will depend on a variety of factors, including the extent of damage to or interference with property, the relationship between you and any alleged victim, your criminal history, and other applicable personal factors.

In addition to the penalties above, a conviction for mischief, even of a small degree, can have wide-ranging negative consequences on your future:

  • Mischief may affect your reputation in the community or with social groups;
  • Potential employers may refuse or terminate your employment if their business involves handling money or the use of valuable property; and/or
  • Your friends, family and peers may view you as unworthy of their trust.

Therefore, even if you intend on accepting responsibility for this type of offence, it is worthwhile to explore your options and consider all the possible penalties. Often, good representation can result in no criminal record. Furthermore, a community-based sentence may be obtained even where the Crown is seeking jail time.

Rest assured, our lawyers will work hard to defend you so that you are not saddled with the consequences that stem from a criminal conviction for mischief. In fact, we can canvass a range of sentencing options with the Prosecutors that will either leave you with no criminal record or impose minimal restrictions on your liberty after sentencing. To learn more about potential non-criminal resolutions, please visit our Resolutions page, or read our FAQ on resolutions and other sentencing options.

Kelowna mischief lawyers

Defending Mischief Charges in Kelowna

What are the best defences to mischief charges in Kelowna?

In mischief cases, the defences that may be available to you depend on the facts of your case. In general, the best defences are:

  • Factual Innocence: This is usually the strongest defence because the facts and the evidence do not support you being there, damaging or interfering with the property, or other basic elements of the offence. This could include:

No mental intent: A common defence available in mischief cases is that you did not intend to damage or interfere with the property. A basic example would be if you accidently spilled paint on a neighbour’s driveway.

You owned the property: If the property is legally yours, you cannot be convicted of damaging or interfering with it, unless you were engaging in fraud. Therefore, if you are able to establish that you had a proprietary or possessory interest in the property, you may be able to defend yourself against the charges. Documents proving ownership of the property will likely be of significant assistance in raising this defence.

Identity: In some circumstances where the offence was not recorded by surveillance footage, or the footage is poor quality, you may be able to raise an identity defence. For example, authorities could have made a mistake in identifying you as the perpetrator based on the poor quality of the footage. In order to effectively raise this defence, you may need corroborative evidence, such as an alibi to where you were at the time of the offence.

  • Violation of Constitutional Rights: The Canadian Charter of Rights and Freedoms sets out your rights before and after your arrest. If the police fail to abide by these rights, it could aid in your defence.
  • “Colour of Right”: This defence may arise when you honestly believed you had a lawful right to property, when in reality you did not. For example, if you honestly, but mistakenly believed that you purchased a home and began to renovate, even though the sale did not go through. In order to raise this defence, you will need to establish a factual basis to show that you honestly and reasonably believed in this particular state of affairs.
  • “Obtaining or Communicating Information”: This defence may arise when you only interfered with the use or enjoyment of property in order to convey or receive information. For example, a neighbour entering adjacent property to discuss repairs to a shared fence.

The Crown is required to prove that you not only damaged or interfered with property that was not lawfully yours, but that you intended to do so. While the Crown must prove beyond a reasonable doubt that you committed the offence, you may bear some responsibility in raising certain defences at trial.

The availability and strength of any defence depends entirely on the specific facts of your case. Our lawyers have significant experience assessing the availability and strengths of various potential defences in mischief cases, as well as presenting any and all available defences to the Court at trial. Even if you believe that you will be found guilty, it is important that you obtain a legal opinion about defences that may be available to you.

How can I help defend mischief charges in Kelowna?

If you have been charged with mischief in Kelowna, the following can help your lawyer build a strong defence:

  • Provide your lawyer with a statement about what happened;
  • Collect and maintain all documents and records about the event;
  • Gather a list of witnesses that may support your version of events; and
  • Log any relevant texts, emails, phone calls or photographic evidence.

As soon as you are released on bail, you should start to gather any information that may be of use to your lawyer. What information is relevant will depend on the facts in your case. If you are uncertain what information may be relevant, you should contact one of our lawyers immediately to create a plan of action for gathering information.

If you are truly proactive about the matter, consider doing the following:

  • Secure proof of employment;
  • Secure reference letters;
  • Enroll in counselling (anger management/substance abuse/parenting);
  • Secure a record of prescriptions; and
  • Secure a record of any mental health conditions you suffer from.

These steps can be very helpful for building an effective defence (or convincing the Prosecutor to drop the charges altogether).

What can a lawyer do to help me defend against mischief charges in Kelowna?

As we start preparing your defence by examining police actions and the evidence against you, there are certain defence strategies that can be used to aid your cause, including:

  • Assembling documents, photographs, texts, etc. that contradict the allegation and support your defence;
  • Gathering evidence from witnesses that support your version of events;
  • Identifying mistakes in the actions of the police, such as Charter breaches;
  • Uncovering administrative/systemic errors, such as “Jordan delay,” non-disclosure, lost or destroyed evidence, etc.; and
  • Finding weaknesses or “holes” in the Crown’s case that may make it difficult or Impossible for them to establish the elements of the offence.

Further Reading

Below are a few notable cases dealing with various aspects of mischief charges:

In R v Harding, 1991 ABCA 59, a group of people entered a hospital and blocked access into rooms where abortions were being performed. They were charged with mischief due to their actions obstructing the lawful use of the property. The Court determined that the colour of right defence requires a legal belief, not a moral one.

In R v Surette, (1993) 82 C.C.C. (3d) 36 (NSCA), the accused won a vehicle in a lottery which he registered in his wife’s name. After a marital dispute he wilfully damaged the vehicle and was charged with mischief. The Court determined that due to his honest and reasonable belief that he had total interest in the vehicle, and could therefore damage it if he wished, he was entitled to an acquittal on the grounds of colour of right.

In R v Maddeaux, (1997) 6 C.R. (5th) 176 (ONCA), the accused was convicted of mischief for playing loud music, disturbing his upstairs neighbour. In rendering its decision, the Court defined “use or enjoyment” of an apartment as including cooking, eating, cleaning, resting, sleeping, listening to radio and watching television. “Operation” was considered to normally refer to commercial, institutional, or industrial enterprise. Any wilful interference with one of these activities may result in a mischief conviction.

In R v Livingston, 2018 ONCJ 231, the accused, who was the former chief of staff to the Ontario Premier, deceived the authorities and ordered his staff to wipe all sensitive and confidential data from the computers in the Premier’s office. He was then charged with mischief involving computer data. Due to the “serious affront to democratic ideals,” he was sentenced to four months in prison.

What’s Next?

Most of the information above relates to simple mischief cases, which can still be complex and fact-specific. Charges that involve a unique type of property, difficult-to-value property, or a mischief act that causes actual danger to life can involve further complexities.

We have tried our best to provide a general outline of what you can expect if you find yourself in this situation, but this is just the tip of the iceberg.

To learn more about how we can help, please contact our team of Mischief Lawyers. We will conduct a thorough review of your situation and tailor a precise strategy that targets your successful defence.

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