Mischief Under $5000 Charges

Punishments, consequences, criminal records, restitution, and getting Criminal Code Section 430(4) charges dropped in Canada

Mischief is a common criminal offence in Toronto often stemming from the damaging of property that an accused does not solely own. In addition to damaging property, charges can also arise from interfering with someone else’s property or denying them access to it. It is also an offence to threaten to cause damage to property you do not own. The owner of the property relating to the mischief charge is usually an individual, a corporation, or a government entity.

Most defendants have never heard of the criminal offense of mischief before they are charged. Nevertheless, it is extremely easy to be charged with this crime and Toronto, Peel, York and Durham Police often press charges in cases involving very little or arguably zero quantifiable damage. Defendants facing a mischief charge risk obtaining a criminal conviction record, probation, and jail.

Receiving a Form 9 "Appearance Notice" or Form 10 "Undertaking"

In cases where the police believe the damage to be less than $5000, the charge of “mischief under $5000” or “mischief under” is laid. If it is later discovered that the damage exceeds $5000 this charge can be later upgraded by the Crown Attorney’s office to "over $5000".

When a person is charged, they will often receive a Form 9 “Appearance Notice”, or a Form 10 "Undertaking" with release conditions. A Form 9 or 10 will normally contain two dates:

1. a fingerprint date (if not already fingerprinted at the Police station prior to release), and;
2. a court date.

Failure to attend the fingerprint date may (and likely will) result in additional charges for Fail to Comply. It will also negatively impact defending the original mischief charge.

You are also required to attend court in person on the date indicated on the Form 9/10. If you hire a lawyer, it may be possible for your lawyer to attend court on your behalf. If the Crown elects to proceed by way of indictment you will need to sign a designation for your lawyer to appear for you. No designation is required in cases where the Crown elects to proceed summarily.

In the Toronto, Newmarket, Brampton, Oshawa and Milton courts, Crowns often look for a sentence of probation and restitution for first time mischief charges in exchange for a guilty plea. The problem is that this will result in a criminal record and conviction for the accused. A better resolution is to have the Crown agree to withdraw or drop the mischief charge in exchange for such things as restitution, community service, counselling, etc. This way, the accused will still be able to produce a clean criminal record check for employment, immigration and travel purposes.

The benefit to hiring a lawyer to represent you is that your lawyer can speak to the Crown and negotiate a resolution that will include the charge being dropped (as opposed to a criminal record and probationary sentence). Without a lawyer, you risk being unnecessarily convicted. In cases with aggravating circumstances or prior criminal convictions there is also a risk of being sentenced to jail time.

Fingerprints, CPIC and records of arrest in mischief s. 430 cases

All persons charged in Canada with mischief will be required to submit their fingerprints and have their photograph (mug shot) taken by the police.

In less serious cases where a Form 9 Appearance Notice document is given, it will contain a date that you must attend the police station for fingerprints. A Form 10 Undertaking will normally contain additional conditions for no contact, not to attend at certain places, or not to possess certain things. If the accused is held for a bail hearing or is taken to the police station to sign an Undertaking prior to release, fingerprints may be taken at the station upon arrest.

For those receiving a Form 9 or 10, the fingerprint date will always precede the court date. There is no way to avoid getting your fingerprints and photograph taken. It does not matter how minor your case is or how innocent you are, you are required to submit your fingerprints if the police decide to charge you.

Once the police obtain your fingerprints, they will store them in their local database and provide a copy to the RCMP to be stored in the national CPIC criminal information system. CPIC will also contain information regarding the charge such as the charging date and its current status (pending, withdrawn, acquitted, convicted + sentence description). CPIC is accessible to all law enforcement agencies in Canada and by U.S. Customs.

If you are later acquitted or the charge is withdrawn, you may be able to have your fingerprints destroyed upon request. TPS requires that you must wait five months from the date of withdrawal or acquittal to make the destruction request and it can often take 12 to 18 months to complete. Other Police forces allow you to apply right away or after one or two years.

Once fingerprint destruction is complete are my records completely clean?

No. The local police will always store a record of your charge and arrest. While Toronto Police state that the CPIC record of the charge and fingerprints is also destroyed, it is unknown whether the CPIC system will continue to indicate that an entry once existed.

Many people also erroneously believe that receiving a pardon completely "clears their record". In reality, CPIC will store a record of the charge and the charge date. It also states that the record is "sealed" and the date of it being sealed. This means that law enforcement agencies like U.S. Customs will still know you were convicted even if you later received a pardon. For withdrawn charges and acquittals it is possible that a similar CPIC record will still remain.

For more information on mischief police and criminal records, see here.

Maximum Punishments and Consequences of Mischief Charges

In Canada, Mischief Under $5000 can be classified as either a summary or indictable offence. Summary offences are less serious than indictable offences. Indictable offences carry the potential of longer prison sentences and are more likely to effect the immigration process (or travel to the U.S.).

Mischief by Indictable

If the Crown proceeds to elect by way of indictment, the maximum potential prison sentence is two years unless the property damaged or destroyed is deemed to be of a cultural/religious nature or computer data. The offender could also be sentenced to period of probation for a maximum of three years upon conviction.

In mischief cases relating to the destruction of property that is deemed to be cultural, religious, or data (computer), the Crown may seek a maximum sentence of 10 years in prison upon conviction. This longer sentence is to deter crimes of hate and computer data destruction mischief cases where the value of damage lost can be tremendous or irreplaceable. 

Mischief by Summary Conviction

If the Crown elects to proceed summarily, the accused faces a maximum possible jail term of six months. The Crown also has six months to charge the accused after the offence is alleged to have occurred. In most cases of Mischief Under $5000 the Crown will elect to proceed summarily. 

It is important to note that jail terms are rare for first time offenders in Mischief Under cases. The more realistic risk for an accused is receiving a criminal record and probationary sentence.

Restitution in Mischief Cases

In the Toronto area, the prosecuting Crown Attorney will likely seek a restitution payment from the accused. This is an amount to compensate the victim for their financial property loss. Restitution amounts are often required in cases of both private and public property damage. While the victim could legally sue the accused in civil court for their losses, judges/courts in the Toronto area tend to prefer restitution orders as part of the sentencing process.

Restitution can be a difficult issue in cases where lawyers negotiate an agreement for the Crown to ultimately withdraw the mischief charges in exchange for restitution (often among other things). If the Crown is agreeable to a withdrawal, they will want restitution to be paid to the victim. Sometimes it is questionable what the actual cost of the damage is. When a fair restitution amount is in question, a defendant's lawyer is sometimes put in a challenging position as it is difficult to negotiate the amount when the Crown Attorney has every right to proceed with the case (not drop it). There is no judicial oversight over whether the Crown proceeds with a charge or not (you can't argue it with a judge).

While in cases where the restitution amount is unclear or a cost assessment seems overly high having a lawyer who has a good relationship with the Crown Attorney’s office is paramount to ensure the charges are withdrawn and the restitution amount is fair and reasonable.

Call us today.
You don't have to jeopardize your future or waste thousands of dollars on excessive legal fees. We provide effective and affordable lawyer representation for those charged with mischief under $5000 in the Toronto area.

Have a skilled criminal lawyer who focuses on mischief charges protect you and your future from the stigma and consequences of a criminal record and conviction.





Are you a lawyer? If you are defending a mischief under or over $5000 related case and are looking for expert advice regarding possible defences, case strategies, and information release management call us at: 647-228-5969.

Please note: We do not accept legal aid certificate cases. All clients are handled on a private retainer only.

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