How being charged with mischief under or over $5000 can negatively impact a person’s immigration status in Canada

There are many forms of mischief charges. Even in its most basic form, mischief under $5000 is a Crown elect indictable offence punishable by up to two years in a federal prison. This means it is a crime that may ultimately lead to immigration applications being denied or individuals already in the country ultimately being deported.

In Canada offences are classified into summary and indictable offences. In the U.S. this is comparable to a misdemeanor and felony. While many resources inaccurately describe mischief under $5000 as a “summary” offence it is not. The indictable nature of the offence is codified under Section 430 (4)(a) of the Criminal Code of Canada which reads:

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Source: https://laws-lois.justice.gc.ca/eng/acts/c-46/section-430.html

When you are charged with mischief under it is an indictable offence. This is why the Police can fingerprint you. While it is true that the Crown may elect to proceed summarily under Section (b), they do not always do so. Even if they elect summarily, it was still an indictable offence at the time you were charged which can negatively impact an accused’s immigration status and travel to the U.S.

Someone else said it wasn’t indictable but a summary offence?

There is a lot of misinformation out there which is why we post the actual legislation itself along with the Government of Canada source. Is the person saying it is a summary offence an actual lawyer licenced by the LSO? Anyone who says mischief is a summary offence is wrong and should not be relied on for criminal legal advice. 

Since mischief is an indictable offence this means that when you are charged with it you will be fingerprinted and have your mugshot taken by the Police. This information will be shared with Immigration, Refugees and Citizenship Canada (IRCC) via the RCMP CPIC database and can be taken under consideration when they evaluate your immigration application for:

1. Tourist Visas
2. Student Visa
3. Work Permit Applications
4. Permanent Residence Applications
5. Citizenship Applications

Each immigration category has different requirements with regards to criminality both in terms of being simply charged with an indictable offence (which mischief is) and being convicted and sentenced.

The good news is that most of the time there are remedies to the potential immigration problems that are associated with mischief charges. Having handled close to 2000 criminal cases, approximately 50% of our clients are in the immigration system so we know what to expect and how to proactively remedy problems that can occur. It is extremely important to us that our clients are able to continue their lives in Canada uninterrupted as they have invested a tremendous amount of time, energy, and resources into coming here to begin with. It would be extremely unfortunate for this to go to waste because of a one time mistake that likely happened as a result of temporary anger or intoxication.

Police informed Immigration, Refugees and Citizenship Canada (IRCC) of my arrest for mischief under or over $5000

It is normal for the Police when arresting a non Canadian citizen for an indictable offence to report the arrest to IRCC (formerly known as Citizenship and Immigration Canada (CIC)). The Police may or may not inform the accused that they are calling IRCC. If the accused is determined to be illegally in the country they will be brought to an immigration detention center to await a hearing date or be released with a date for a hearing. If they are in the country legally but are charged with an indictable offence such as mischief then IRCC is notified as the immigrant’s status and future applications are contingent on what happens with the charges. Even if the individual is a permanent resident (PR) IRCC may be notified of the charges so they can respond in the event the individual’s case results in them being deemed ineligible to remain in Canada.

It is important that the immigrant’s lawyer make certain specific requests of the Crown Attorney, work to avoid a conviction and ensure their client has all the proper paperwork potentially required in advance so their client avoids problems with IRCC. This applies to both their current status and future applications.

If I am charged with mischief will IRCC evaluate my application differently depending on what country I am from?

No. It doesn’t matter if you are from India, China, Russia, the European Union, Australia or anywhere else IRCC is supposed to evaluate each case on its individual merits and facts. We have clients from virtually all countries who have gone through the exact same thing you have. To our knowledge none of them have been deported or refused a change or renewal to their immigration status in Canada.

In terms of the charges themselves many immigrant clients are surprised that their behaviour is considered a serious criminal offence in Canada. Particularly in domestic cases (husband/wife or other relationship disputes) this may be something that is considered normal or “no big deal” back home. While in their home country the Police may not respond at all or just simply talk to the parties, here it is a serious crime resulting in lengthy separations, a possible criminal record, and deportation. It is very easy to be criminally charged in Canada and many immigrants and non-immigrants alike find this out the hard way. For those from other cultures sometimes it is even more shocking.

Please note that mischief charges may also cause issues travelling to the United States as it is considered a moral turpitude offence (malicious destruction of property), for more information on this please see here.

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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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