Mischief Over $5,000 in Ontario

The short answer

Mischief over $5,000 means wilfully damaging property, or interfering with its use, where the property is worth more than $5,000 (s. 430(3)). It carries a maximum of 10 years in jail when the Crown proceeds by indictment. Even so, many of these cases end without jail, especially when the damage is paid for early and properly documented. The value of the damage is often the first issue to test, because it decides which level of the charge applies.

What mischief is

Under s. 430(1) of the Criminal Code, mischief includes wilfully doing any of the following:

• Damaging or destroying property.
• Making property dangerous, useless, inoperative or ineffective.
• Obstructing, interrupting or interfering with the lawful use, enjoyment or operation of property.
• Interfering with a person who is lawfully using or enjoying property.

"Wilfully" includes recklessness. Under s. 429(1), that means knowing your act will probably cause damage and carrying on anyway, without caring whether the damage happens. Mischief also covers interfering with computer data, which has its own rules explained in our guide to mischief to computer data.

How "over $5,000" is decided

The Crown must prove that the value of the property was more than $5,000. Value can be measured in different ways, such as the cost of repair or the value of the property itself, and repair estimates are often challenged by the defence.

For example, scratching a luxury car can lead to a repair bill over $5,000, even though the damage looks minor.

If the Crown cannot prove the value was over $5,000, the charge becomes mischief under $5,000, which carries much lower penalties. See mischief under $5,000.

Testing repair estimates

Repair estimates are usually prepared by a body shop, contractor or other business chosen by the complainant. They may include work that was not caused by the incident, such as old damage, upgrades or full replacement when a repair would have been enough. Some estimates also include taxes, rental costs or other expenses that do not reflect the value of the damage itself. Asking for photographs, invoices and a second estimate can make a real difference to the charge.

What the Crown must prove

What happens after you are charged

1. Release: Most people are released by police with a court date and conditions, such as staying away from the property or the owner.
2. Disclosure: The Crown provides its evidence, which usually includes photographs, repair estimates, video and witness statements.
3. The Crown's election: The Crown decides whether to proceed summarily or by indictment.
4. Your election: If the Crown proceeds by indictment, you can choose your trial court, including a trial with a jury in the Superior Court of Justice.
5. Resolution or trial: Many cases resolve through restitution and a negotiated outcome, while others go to trial on intent, value or identity.

Penalties

Over $5,000

• By indictment: The maximum is 10 years in jail.
• On summary conviction: The maximum is 2 years less a day, a fine of up to $5,000, or both.

Actual danger to life

• By indictment only: The maximum is life in prison (s. 430(2)).

There is no minimum sentence for ordinary mischief, so a discharge may be available. See mischief sentences, restitution and diversion.

Repair and restitution

The court must consider a restitution order in every case (s. 737.1), and it can order you to pay for the damage (s. 738). Paying for the damage before your court date, with receipts or another record of payment, often improves the result. However, arrange payment through your lawyer, so that it is documented properly and does not read as an admission of guilt.

Defences

• Accident: The damage was not wilful or reckless.
• Colour of right: You honestly believed you had a legal right to do what you did (s. 429(2)).
• Value: The evidence does not prove that the value was over $5,000.
• Identity: The video or witnesses do not clearly show that you were the person involved.

Effects beyond the sentence

Because mischief over $5,000 carries a maximum of 10 years, a conviction can make a permanent resident inadmissible to Canada for serious criminality under s. 36 of the Immigration and Refugee Protection Act. A conviction can also appear on background checks for employment and can cause problems when you try to enter the United States.

Possible outcomes

What to do now

• Follow your release conditions exactly, including any order to stay away from the property.
• Keep photographs of the property and any messages about the incident.
• Ask for copies of video early, because doorbell and store footage can be erased within days.
• Do not pay the complainant directly before you receive legal advice.

Mischief to vehicles

Many mischief over $5,000 charges involve vehicles, because modern cars are expensive to repair. Paint, sensors, cameras and glass can all add up quickly, even when the damage looks small. When a vehicle is involved, the defence can ask for the full repair invoice, photographs taken before the repair and the vehicle's prior damage history, since these records often show that some of the cost was not caused by the incident.

How we can help

We can test the repair estimates, look closely at the evidence of intent, and work toward restitution and a resolution that protects your record. Call (647) 223-1980 for a free consultation. We accept Legal Aid Ontario certificates.

Frequently asked questions