Domestic Mischief Charges under Section 430 of the Criminal Code

Mischief charges involving individuals in non-platonic relationships are classified as domestic violence offences which almost always result in contact between the two parties being banned and harsh prosecution under Ontario Crown Attorney policies

Mischief is a criminal offence that is often classified as a form of domestic violence by Toronto area Crown Attorneys. Many of these cases involve no allegations of assault or threats but simply that property was damaged that was not completely owned by the accused. In cases of married spouses, any damage to matrimonial property can support a domestic mischief charge. In cases of unmarried couples who are dating, seeing each other, or in a relationship, the accused is alleged to have damaged property owned by the “victim” such as a cell phone, motor vehicle, window, door, computer, furniture etc.

What does "domestic" mean in Canadian criminal law?

There is no specific definition of a “domestic” charge in the Criminal Code. It is a classification that is assigned by the Police, the Crown Attorney’s office, and the courts that refers to cases where a non-platonic relationship exists between the accused and the complainant/”victim”. This includes married couples, boyfriend/girlfriend relationships, people seeing each other/hooking up, and all forms of same sex relationships. The parties do not need to live together or be in a long term monogamous relationship for the case to be considered a domestic. Any non-fully platonic relationship is sufficient to meet the classification.

Cases that involve parents and children, brothers and sisters, and other family relationships where individuals may live together or are related should not be classified as domestic violence offences.

Why does it matter if the charges are classified as a domestic?

The reason the classification is relevant is because there are specific policy procedures in place with regards to prosecution of domestic offences. Special Crown Attorneys and sometimes special courts are assigned to deal with domestic violence cases in the Toronto area. Not only are the police left with virtually no discretion but to press charges (even for something as simple as a broken remote control), the Crown Attorney’s office must follow strict guidelines as well which means “domestics” are prosecuted more heavily and last longer than non-domestic cases.

The “victim”/complainant is not the decision maker

Just because the complainant/”victim” later changes their mind about wanting the person charged does not mean the charges will be withdrawn (dropped). While the victim’s input is a relevant consideration, they are not the decision maker with regards to prosecution. The Crown Attorney represents the Government and the greater public interest in prosecuting crime, not the victim directly. In domestic cases, the Government takes the view that they are protecting the victim from future violence by keeping the parties apart (despite their wishes) even if only property was damaged (mischief) as a result of the incident.

The release conditions for the accused are often onerous and difficult to manage

Domestic cases are also different because the accused (and the “victim”) are often unable to have contact/communication with each other once the charges are laid. If the accused is released on a Form 10 (Undertaking Given to a Peace Officer or Officer in Charge) it will almost always include an abstain from communicating directly or indirectly with the “victim” or from going to the family home (if the parties happened to live together prior to the incident) in clause (c) of the document. For couples who share finances, parenting, and other joint responsibilities this is a tremendous inconvenience to their family.

If the accused is held for bail, the Crown will likely only consent to their release from jail if a similar contact/communication ban is put in place (via a Form 11 - Release Order). Ultimately the accused does not have to consent to these terms however practically speaking their refusal will almost always lead to additional time in custody. These release conditions can usually be varied eventually however it is not a quick or easy process.

The negative impact of mischief charges seems particularly harsh in domestic classified cases

For a domestic mischief case, where there is no injury because the accused chose to take his/her anger out on objects instead of their spouse, it is very difficult for both the defendant and the complainant to accept that they cannot communicate with one another. Sometimes the complainant/”victim” is not even at home when the damage to the property happened. The negative effects of any domestic case are difficult to accept but mischief cases are particularly hard because only property was damaged and no physical assault has taken place.

Often the “victim” had no idea of the incredible impact to their life and family prior to calling 911 and wrongly assumed the police would attend at the residence or place of the incident and try to mediate or calm their partner down. In cases where alcohol is involved, the person calling the police normally believes they will, at worst, take their spouse/partner to the police station for the night and let them go free in the morning when they are sober.

The reaction of the Police and the criminal justice system to many caught in it seems disproportional to the actual damage caused in many domestic mischief cases which often involve easily repairable damage to:

1. Cell Phones
2. Computers
3. Motor vehicles
4. Windows, walls, and doors of houses, condos, and apartments
5. Furniture and appliances
6. Dishes
7. Plants
8. TV Remote Controls

Most people charged for domestic mischief offences are first time offenders who have never been arrested, charged, or in trouble with the law before.

Unlike seasoned criminals who know that property damage is a serious crime, first time domestic offenders usually have no idea that a simple 911 call can result in the forced separation of the relationship and a potential life ruining criminal record, jail, etc. for the accused. The vast majority of people who are charged for domestic mischief have no prior criminal record. By the time they are arrested it is too late.

The complainant will often search for options to “drop” the charges but they are no longer in control of the case. The decision to drop the charges is solely up to the Crown Attorney who is bound to follow very strict domestic policies, even for mischief cases that ultimately resulted in no injuries whatsoever.

How to get domestic charges withdrawn

In any domestic case, a lawyer has two primary responsibilities:

1. Attempting to get the no contact/communication clause varied to allow the parties to reconnect; and,


2. To attempt to have the charges withdrawn and avoid a criminal record/jail.

Sometimes the Crown Attorney will agree to withdraw the charges against the accused if they are willing to undertake counselling for the underlying issues that resulted in the offence. This can include relationship, anger management, and alcohol/drug counselling in domestic cases depending on the facts of the case.

Both the aggravating and mitigating factors will be assessed by the Crown Attorney in deciding whether it is in the public interest to prosecute the case. The most common aggravating factors (those that make the case worse/more serious) in domestic mischief cases include:

1. The extent and total value of the damage caused
2. If the property damage involve irreplaceable items such as computer data, pictures, or other sentimental items
3. The background of the relationship and comments made by the accused (both in person and through electronic devices)
4. Whether a child was present at the time the property was damaged
5. A history of prior 911 calls, charges, or an existing criminal record

Mitigating factors (that can help the case) include:

1. No prior record
2. A low cost to repair the damaged property
3. The accused being alone at the time of the offence
4. No history of prior aggressive or violent behaviour
5. The complainant/”victim” giving input saying they are not in fear of the accused, wish to regain contact, and do not want them to be prosecuted and potentially go to jail or get a criminal record
6. The presence of a good career, education, etc. that would be jeopardized if the accused received a criminal record
7. Potential immigration consequences to the accused
8. The accused needing to travel the United States for work or family being jeopardized by a potential conviction
9. The willingness of the accused to attend counselling, perform work in the community, and do other things to rehabilitate themselves

A lawyer must work to minimize the aggravating factors and promote the mitigating ones. Furthermore they must analyze the disclosure to determine the weaknesses in the case which will factor in their client’s favor. They must also try to deal with the Crown Attorney that is most likely to conclude that it is not in the public interest to prosecute their client.

As every courthouse in the GTA works differently in this regard, it is important that your lawyer have specific case experience at the courthouse that your case is being heard.

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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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