First Offence Criminal Mischief Charges in Toronto, Ontario

What happens when someone is charged with mischief (over or under $5000) for the first time, what information is taken and shared, and how to get the charges withdrawn (dropped) and avoid travel, career, and immigration problems associated with the charge.

Many people being charged with mischief have never been accused of or charged criminally with anything before in their lives. For first time offenders, it is often a shocking experience because they immediately feel the incredible risk to their lives and future the criminal justice system has put them in. A lot of these individuals never really saw their actions as being “criminal” at the time they committed the offence. Now they are facing jail, a criminal record, immigration problems, and being denied the ability to travel to the U.S. and other countries in the future.

Unfortunately, the definition of mischief in Canada is extremely unspecific and the Police use very little discretion when charging people in the Greater Toronto Area.

The definition of mischief is found in Section 430 (1) of the Criminal Code which reads:

430 (1) Every one commits mischief who wilfully

• (a) destroys or damages property;
• (b) renders property dangerous, useless, inoperative or ineffective;
• (c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
• (d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.

This definition of mischief (for both over and under $5000) encompass such a wide range of illegal activities that it is impossible to list them all. The most common for first timers are damage to property they do not own as a result of road rage, parking lot disputes, disputes with neighbours, family members, landlords, romantic partners (or their exes), showing off (often under the influence of alcohol), and revenge for perceived wrongdoing. Also cases of tagging/graffiti, school and workplace pranks (smoke bombs, toilet papering, etc.) are common for first time offenders.

The police interpret the word “interferes” in clause 430 (1)(c) to charge people with mischief as a result of what they perceive to be as improper behaviour in public or private places. This can range from taking photos of people without consent (also sometimes leading to voyeurism charges), to running onto the field at a baseball game. All of these people get charged with mischief related offences.

The charging procedure: arrest, fingerprinting / mug shot, and compelling the accused to attend court

Those charged with mischief who are not held in custody will either be served by the police with a Form 9 “Appearance Notice” with a fingerprint and court date, or a Form 10 "Undertaking" with a court date, a fingerprint date (if they have not yet been fingerprinted at the police station) and directing them not to associate with certain people or attend at a certain place. If the accused is held for a bail hearing, and is granted bail by the court, they will have a bail release with a court date.

Those charged with mischief who are held for and denied bail will have to await the result of their case in a provincial jail (possibly for months), though it is rare that first time offenders would not be granted bail.

My Form 9 Appearance Notice says I am a person "not yet" charged with an offence. Does this mean I may not be charged?

No. If you have received a Form 9 with a fingerprint date and a court date, you are being charged with the crime listed on the form. The use of the words "not yet" is a legal technicality as you are formally charged when the officer attends at the courthouse and swears a document called the "Information" before a Justice of the Peace. This process happens between the arrest date and the court date. Anyone who has been provided with a Form 9 Appearance Notice has been arrested and is being charged.

Regardless of the method of release, 100% of individuals charged with mischief must be fingerprinted and photographed and attend court (or have their lawyer do so). If they fail to show up for fingerprints or court a warrant will be issued for their arrest and they will get new charges for Failing to Comply.

Why do I have to be fingerprinted and have my mug shot taken if I haven’t been convicted yet?

As mischief charges are either crown elect indictable or straight indictable offences, the Police have a legal right to fingerprint (and take photographs) of those they charge. This helps them investigate other crimes and ensures that the correct individual is being charged. As many people share names and dates of birth, it is important to have biological identification to protect the public. The police will only give an individual a future fingerprint date (Form 9 or sometimes Form 10) if they are completely satisfied of their identity and that they will show up. They also have the option of fingerprinting the person at the police station while they are still under arrest and do so in many cases.

What other information will be collected from me and what can I expect when I go for fingerprints?

The fingerprinting process will include electronic copies of full hand/palm/fingerprints, mug shot or facial picture from the front and side, pictures of any scars or tattoos the person has, documentation of unique identifiers such as place of birth, color of hair/eyes, piercings, known aliases, etc.

The officers who conduct the fingerprinting generally tend to be friendly (as they want you to cooperate) and likely will not ask about the details of your case. It is a good idea to ask them to stamp your paperwork to say that you did appear.

What will the police do with all this personal information they are taking from me?

All of the accused individual’s information along with the charges will be forwarded and added to the federal RCMP CPIC database. This database is accessible to all law enforcement agencies in Canada, the United States, the United Kingdom, Australia, and New Zealand. U.S. Customs will routinely check travelers for a CPIC entry which can lead to being denied admissibility. Mischief, known in the U.S. as malicious destruction of property, is considered a moral turpitude offence (i.e. evil intent). Given its indictable classification (or as they would call a felony), it can cause serious problems at the border.

It is important that your lawyer try to have your case prosecuted summarily if possible which increases the chance it will be seen as equivalent to a misdemeanor. Some forms of mischief however can only be prosecuted by indictment.

What is the maximum punishment for mischief in Canada? How else can these charges impact my life and future?

The maximum punishment will range from 6 months in jail to life in prison depending on the type of mischief the individual is charged with and whether the Crown Attorney elects to proceed summarily or by indictment. While some people describe mischief under $5000 as a summary offence, they are wrong. At a minimum mischief under $5000 is crown elect indictable offence, not a summary offence. Mischief under $5000 carries a maximum penalty of two years in prison when prosecuted by indictment.

Apart from going to jail, those charged with mischief for the first time are primarily concerned with possibly getting a criminal record, not being able to travel to the U.S. and other countries in the future, their immigration status, and employment background checks revealing a criminal conviction record. Many professions such as law enforcement, real estate agents (RICO), car sales (OMVIC), medical physicians, teachers, nurses, accountants, engineers, financial sector jobs, IT jobs, etc. require their employees to not have criminal records and generally not to act in ways that constitute conduct unbecoming.

A lawyer representing a first offence mischief client must actively work to have the charges withdrawn and minimize the negative effects of just being charged itself

While most people in the criminal justice system already have criminal records and not much left to lose, first time offenders face tremendous consequences as everything they have worked for is put on the line. A lawyer must be cognizant that those charged for the first time face far more threats to their employment, travel, and immigration than someone who has already lost these privileges.

Approaching the Crown Attorney and attempting to persuade them that it is not in the public interest to prosecute you is the first step a lawyer should take when their client is charged with mischief. This not only involves doing everything possible to deal with the right Crown Attorney who is most likely be sympathetic to your case (as of 2019, each GTA courthouse works very differently), it also involves ensuring the client has done everything to mitigate the situation.

Two of the most effective upfront strategies to mitigate a mischief case include:

1. Counselling for Anger Management, Alcohol, or general behavioural counselling depending on the nature of the allegation, and;


2. Restitution if a third party has suffered a financial loss as a result of the incident.

Getting the mischief charges withdrawn (dropped) is just the first step. Next a lawyer must actively work to ensure all police information records that can be destroyed are destroyed. This includes fingerprints, mug shot/photographs of the accused, and the information stored in the federal CPIC database.

There is also paperwork and other documentation that should be sought which can help substantially lower the risk of having problems with travel, employment background checks, professional regulatory body applications/proceedings, and Immigration, Refugees and Citizenship Canada (IRCC).

For more information on what a criminal mischief lawyer should do to protect their clients see here.

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 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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