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ASSAULT | AGGRAVATED ASSAULT |
SEXUAL ASSAULT | MISCHIEF |
ASSAULT CAUSING BODILY HARM

1. What are the ways in which a person can commit mischief?

2. What is damage, in this context?

3. What is property, in this context?

4. Can an accused be convicted of mischief for deeds done against property which the accused has a partial interest in?

5. Can an accused be convicted of mischief for deeds done against property which the accused has a total interest in?

6. Does the fact that an accused purchased property automatically means that the accused has a total interest in the property?

7. What is computer data, in this context?

8. What is lawful use of property, in this context?

9. Is it possible to be convicted of mischief for obstructing, interrupting, or interfering with use of property which is in no way lawful?

10. Is it possible to be convicted of mischief for obstructing, interrupting, or interfering with the use of property which is in some ways lawful and in other ways unlawful?

11. What is enjoyment of property, in this context?

12. What are the essential elements of the offence of mischief?

13. What is the actus reus of the offence of mischief?

14. What is wilful conduct, in this context?

15. What is the mens rea of the offence of mischief?

16. How does the actus reus of the offence of mischief interact with the mens rea of the offence of mischief?

17. What is recklessness, in this context?

18. What is an example of recklessness in the context of the offence of mischief?

19. When can a trier of fact convict an accused of mischief for an act or omission likely to constitute mischief causing actual danger to life or to constitute mischief in relation to property or computer data?

20. What is the standard for assessing likelihood to constitute mischief causing actual danger to life or mischief in relation to property or computer data?

21. What type of offence is mischief?

22. What does the fact that mischief is a general intent offence mean?

23. What are circumstances in which a person can not be convicted of mischief?

24. What is the purpose of the exemption from mischief of stopping work in certain circumstances?

25. What is a dwelling-house, in this context?

26. When does the defence to mischief of attending at or near or approaching a dwelling-house or place for the purpose only of obtaining or communicating information apply?

27. What is an example of a legal justification for what would otherwise be mischief?

28. What is a colour of right?

29. How can a defence of colour of right be used?

30. Does the fact that an accused has only a partial interest in property prevent an accused from relying upon colour of right as a defence against a charge of mischief?

31. Can an accused be convicted of mischief for engaging in conduct in one property which in some way interferes with an adjacent property?

32. In what circumstances is videoing property mischief in Ontario?

33. Can an accused be convicted of mischief for shouting with a loud voice during a public meeting so that the meeting's other attendees leave the meeting?

34. Can an accused be convicted of mischief for making a sign useless by removing the sign?

35. Can an accused be convicted of mischief for sending such an excessive amount of fax to a fax machine that the fax machine cannot be used for other purposes?

36. Can an accused be convicted of mischief for placing debris upon property so that the property cannot be travelled through easily?

37. Can an accused be convicted of mischief for placing a tracking device within another person's vehicle which the other person learns about, causing to the other person distress?

38. Can an accused be convicted of mischief for building a barricade at an occupation site used by protestors?

39. Can an accused be convicted of mischief for unlawfully accessing another person's email or social media account?

40. Can an accused be convicted of mischief for changing another person's computer account's password or computer program's account's password without the other person's permission?

41. Can an accused be convicted of mischief for grabbing another person's cellphone while the person is using the cellphone and preventing the other person from using the cellphone?

42. Can an accused be convicted of mischief for wilfully rendering property dangerous by failing to take adequate safety precautions as mandated by the provincial Fire Code?

43. Can an accused be convicted of mischief for unlawfully killing an animal belonging to another person?

44. Can an accused be convicted of mischief for driving a vehicle in such a way that the other drivers on the road are restricted in their ability to perform lawful manoeuvres of driving?

45. Can an accused be convicted of mischief for driving a vehicle in such a way that the traffic on the road is forced to stop?

46. Can an accused be convicted of mischief for harassing a person who is lawfully occupying public property by causing the person to feel scared, thus interfering with the person's use of the property?

47. Can the defence of de minimis apply to a charge of mischief?

48. What if the act for which the accused is being charged with mischief was done due to necessity?

49. What if the act for which the accused is being charged with mischief was done while the accused was suffering from a mental disorder?

​50. What is a mental disorder, in this context?

51. What is a disease of the mind, in this context?

52. What is appreciating the nature and quality of the act or omission, in this context?

53. What is knowing that the act or omission was wrong, in this context?

54. Is expert evidence required in order to advance a defence of NCR?

55. What is a particular way in which an accused can benefit from a defence of NCR in the context of being charged with mischief?

56. What if the act for which the accused is being charged with mischief was done in defence of the accused or another person?

57. What if the act for which the accused is being charged with mischief was done in defence of property?

58. What is the possible punishment for mischief in relation to computer data?

59. What is the possible punishment for mischief in relation to property that is a testamentary instrument or the value of which exceeds five thousand dollars?

60. What is a testamentary instrument, in this context?

61. What is the possible punishment for mischief in relation to property that is not a testamentary instrument or the value of which does not exceed five thousand dollars?

62. What is the possible punishment for mischief, motivated by bias, prejudice or hate based on colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability, in relation to certain property?

63. What is an identifiable group, in this context?

64. Who bears the burden of proving that an act of mischief is motivated by bias, prejudice or hate based on colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability when an accused is charged with mischief motivated by bias, prejudice or hate based on colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability?

65. What is the standard of proof that an act of mischief is motivated by bias, prejudice or hate based on colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability when an accused is charged with mischief motivated by bias, prejudice or hate based on colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability?

66. Can the fact that an act of mischief is motivated by bias, prejudice or hate based on colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability be inferred from the accused's conduct while engaged in the mischief when the accused is charged with mischief motivated by bias, prejudice or hate based on colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability?

67. What is the possible punishment for mischief in relation to certain property commemorating dead people?

68. What is the possible punishment for mischief in relation to cultural property?

69. What is cultural property in this context?

70. What is the possible punishment for mischief that causes actual danger to life?

71. How is mischief that causes actual danger to life defined?

72. Must the accused intend to cause actual danger to life through the mischief for the accused to be convicted of mischief that causes actual danger to life?

73. What happens when an accused, having been charged with mischief that causes actual danger to life, is found not guilty of mischief that causes actual danger to life but guilty of mischief?

74. What is the possible punishment for mischief for an act or omission likely to constitute mischief causing actual danger to life or to constitute mischief in relation to property or computer data?

1. What are the ways in which a person can commit mischief?

EEvery person commits mischief who wilfully destroys or damages property;¹ renders property dangerous, useless, inoperative or ineffective;² obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property;³ or obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.⁴

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Every person commits mischief who wilfully destroys or alters computer data;⁵ renders computer data meaningless, useless or ineffective;⁶ obstructs, interrupts or interferes with the lawful use of computer data;⁷ or obstructs, interrupts or interferes with a person in the lawful use of computer data or denies access to computer data to a person who is entitled to access to the computer data.⁸

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Every person who wilfully does an act or wilfully omits to do an act that it is the person’s duty to do, if that act or omission is likely to constitute mischief causing actual danger to life, or to constitute mischief in relation to property or computer data, is guilty of mischief.⁹

¹ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(1), 430(1)(a).
² "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(1), 430(1)(b).
³ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(1), 430(1)(c).
⁴ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(1), 430(1)(d).
⁵ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(1.1), 430(1.1)(a).
⁶ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(1.1), 430(1.1)(b).
⁷ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(1.1), 430(1.1)(c).
⁸ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(1.1), 430(1.1)(d).
⁹ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 430(5.1), read in context with "R. v. S. D. D., 2002 NFCA 18 (CanLII)" https://www.canlii.org/en/nl/nlca/doc/2002/2002nfca18/2002nfca18.html at paras 26, 51 and "R. v. K.T., 2005 MBCA 78 (CanLII)" https://www.canlii.org/en/mb/mbca/doc/2005/2005mbca78/2005mbca78.html at para 15.

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2. What is damage, in this context?

The damage must be more than negligible and more than a minor inconvenience.¹⁰ To prove damage, the Crown must show that the property’s usefulness or value has been impaired, at least temporarily.¹¹

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Gluing posters to a surface may not cause damage severe enough for a person to be convicted of mischief.¹²

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​The fact that an accused changed property so that the property, subjectively considered, is more beautiful does not prevent an accused from being convicted of mischief on the basis that the accused’s changes to the property damaged the property.¹³

¹⁰ "R. v. Jeffers, 2012 ONCA 1" https://coadecisions.ontariocourts.ca/coa/coa/en/item/10916/index.do at para 19.
¹¹ "R. v. Jeffers, 2012 ONCA 1" https://coadecisions.ontariocourts.ca/coa/coa/en/item/10916/index.do at para 19.
¹² "R. v. Jeffers, 2012 ONCA 1" https://coadecisions.ontariocourts.ca/coa/coa/en/item/10916/index.do at paras 19-21.
¹³ "R. v. Adamovsky, 2018 ONSC 7232 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2018/2018onsc7232/2018onsc7232.html at paras 3-6, 54-58, 77-79.

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3. What is property, in this context?

Property means real or personal corporeal property.¹⁴ Real or personal corporeal property includes livestock and animals owned as pets.¹⁵

¹⁴ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 428.
¹⁵ "R. v. Krajnc, 2017 ONCJ 281 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2017/2017oncj281/2017oncj281.html at paras 16-20, 27-28, 35-37.

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4. Can an accused be convicted of mischief for deeds done against property which the accused has a partial interest in?

When it is mischief to destroy or to damage anything, the fact that a person has a partial interest in what is destroyed or damaged does not prevent the person from being guilty of mischief if the person caused the destruction or damage.¹⁶ A partial interest in property, undermining a defence to a charge of mischief, can be caused by joint ownership.¹⁷ A partial interest in property, undermining a defence to a charge of mischief, can be caused by a mortgage on the property.¹⁸

¹⁶ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 429(3), 429(3)(a), 430(1), 430(1)(a), 430(1.1), 430(1.1)(a).
¹⁷ "R. v. Hajek, 2009 ONCJ 75 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2009/2009oncj75/2009oncj75.html at paras 1, 3, 13, 17, 26, 29-31, 41.
¹⁸ "R. c. Swierkot, 2019 QCCQ 7291 (CanLII)" https://www.canlii.org/en/qc/qccq/doc/2019/2019qccq7291/2019qccq7291.html at para 107, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 429(3), 429(3)(a), 430(1), 430(1)(a), 430(1.1), 430(1.1)(a).

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5. Can an accused be convicted of mischief for deeds done against property which the accused has a total interest in?

When it is mischief to destroy or to damage anything, the fact that a person has a total interest in what is destroyed or damaged does not prevent the person from being guilty of mischief if the person caused the destruction or damage with intent to defraud.¹⁹ A total interest means total ownership.²⁰

¹⁹ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 429(3), 429(3)(b), 430(1), 430(1)(a), 430(1.1), 430(1.1)(a).
²⁰ "R. v. Rodriguez, 1998 ABPC 78 (CanLII)" https://www.canlii.org/en/ab/abpc/doc/1998/1998abpc78/1998abpc78.html at paras 2, 4.

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6. Does the fact that an accused purchased property automatically mean that the accused has a total interest in the property?

Because property, once purchased, can be given to another owner in whole or in part, the fact that an accused purchased property does not automatically mean that the accused has a total interest in the property.²¹

²¹ "R. v. Linardatos, 2005 ONCJ 56 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2005/2005oncj56/2005oncj56.html at paras 25, 50-51, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 429(3), 429(3)(a), 430(1), 430(1)(a), 430(1.1), 430(1.1)(a).

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7. What is computer data, in this context?

Computer data means representations, including signs, signals or symbols, that are in a form suitable for processing in a computer system.²²

²² “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 342.1(2), 430(8).

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8. What is lawful use of property, in this context?

Lawful use of a property can be defined by a by-law,²³ but the fact that a property’s users are subleasing a property from the property’s leaser in defiance of the terms under which the property was leased cannot make the property’s users’ otherwise lawful use of the property unlawful for the purpose of the offence of mischief.²⁴

²³ Cf, "R. v. Janusas, 2010 ONSC 2068 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2010/2010onsc2068/2010onsc2068.html at paras 2, 13-24, 94.
²⁴ "R. v. Manoux, 2017 ONCJ 58 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2017/2017oncj58/2017oncj58.html at paras 1, 3, 7, 37, 53.

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9. Is it possible to be convicted of mischief for obstructing, interrupting, or interfering with use of property which is in no way lawful?

It is impossible to be convicted of mischief for obstructing, interrupting, or interfering with use of property when the property’s only use being obstructed, interrupted, or interfered with is unlawful.²⁵

²⁵ "R. v. Janusas, 2010 ONSC 2068 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2010/2010onsc2068/2010onsc2068.html at paras 2, 13-24, 28, 94, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(1), 430(1)(c), 430(1)(d).

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10. Is it possible to be convicted of mischief for obstructing, interrupting, or interfering with the use of property which is in some ways lawful and in other ways unlawful?

As long as some use of the property is lawful, an accused can be convicted of mischief for obstructing, interrupting, or interfering with the lawful use of property.²⁶

²⁶ "R. v. Janusas, 2010 ONSC 2068 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2010/2010onsc2068/2010onsc2068.html at paras 2, 13-24, 28, 94, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(1), 430(1)(c), 430(1)(d).

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11. What is enjoyment of property, in this context?

Enjoyment of property refers to an action of obtaining from property the satisfaction that the property can provide,²⁷ including enjoyment its ordinary sense.²⁸

²⁷ Cf, "R. v. King, 2024 ONSC 6458 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2024/2024onsc6458/2024onsc6458.html at para 95.
²⁸ Cf, "R. v. King, 2024 ONSC 6458 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2024/2024onsc6458/2024onsc6458.html at para 95.

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12. What are the essential elements of the offence of mischief?

The essential elements of the offence of mischief are that the accused, at the date and place specified, interfered with property in a way specified by the law; that the accused’s conduct was unlawful; and that the accused’s conduct was wilful.²⁹

²⁹ "R. v. Balasooriyan, 2024 ONCJ 478 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2024/2024oncj478/2024oncj478.html at paras 43-45.

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13. What is the actus reus of the offence of mischief?

The actus reus of the offence of mischief is wilfully engaging in conduct, which has a prohibited result, towards property or computer data.³⁰

³⁰ Cf, "R. v. Almeida" https://coadecisions.ontariocourts.ca/coa/coa/en/item/3542/index.do at paras 1-4, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(1), 430(1)(a), 430(1)(b), 430(1)(c), 430(1)(d), 430(1.1), 430(1.1)(a), 430(1.1)(b), 430(1.1)(c), 430(1.1)(d).

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14. What is wilful conduct, in this context?

An accused’s conduct is wilful if the accused’s conduct is intentional rather than accidental.³¹

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An accused’s conduct is wilful if the accused meant to interfere with the property in any way or if the accused knew that the accused would probably interfere with the property in any way but went ahead and engaged in such conduct anyway, being reckless whether such interference with property happened as a result.³²

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Every person who causes the occurrence of an event by doing an act or by omitting to do an act that it is the person’s duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed wilfully to have caused the occurrence of the event.³³

³¹ Cf, "R. v. Parkinson, 2009 CanLII 729 (ON SC)" https://www.canlii.org/en/on/onsc/doc/2009/2009canlii729/2009canlii729.html at paras 13-15.
³² "R. v. J.F.B., 2026 ONSC 264 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2026/2026onsc264/2026onsc264.html at para 33.
³³ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 429(1).

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15. What is the mens rea of the offence of mischief?

The mens rea of the offence of mischief is engaging in conduct, which has a prohibited result, towards property while knowing or being reckless to the fact that such conduct has a prohibited result towards property or computer data.³⁴

³⁴ Cf, "R. v. Almeida" https://coadecisions.ontariocourts.ca/coa/coa/en/item/3542/index.do at paras 1-4, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(1), 430(1)(a), 430(1)(b), 430(1)(c), 430(1)(d), 430(1.1), 430(1.1)(a), 430(1.1)(b), 430(1.1)(c), 430(1.1)(d).

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16. How does the actus reus of the offence of mischief interact with the mens rea of the offence of mischief?

When the Crown proves that an accused voluntarily committed the actus reus of mischief, the mens rea of mischief is satisfied by proof of an intentional, deliberate, or reckless prohibited course of conduct towards property.³⁵

³⁵ Cf, "R. v. King, 2024 ONSC 6458 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2024/2024onsc6458/2024onsc6458.html at para 94, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(1), 430(1)(a), 430(1)(b), 430(1)(c), 430(1)(d).

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17. What is recklessness, in this context?

Recklessness is a form of subjective fault distinct from both negligence and wilful blindness, and refers to the state of mind of an accused who, aware that there is danger that the accused’s conduct could bring about the result prohibited by the criminal law, nevertheless persists despite the risk.³⁶ Culpability for recklessness is justified by the accused’s proceeding despite consciousness of the risk.³⁷

³⁶ "R. v. Fox, 2023 ONCA 674" https://coadecisions.ontariocourts.ca/coa/coa/en/item/21796/index.do at para 25.
³⁷ "R. v. Fox, 2023 ONCA 674" https://coadecisions.ontariocourts.ca/coa/coa/en/item/21796/index.do at para 25.

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18. What is an example of recklessness in the context of the offence of mischief?

An accused who forces another person to move in a crowded space where an object can be destroyed or damaged easily by being bumped into can be convicted of mischief on the basis that the accused recklessly caused the item to be bumped into and damaged.³⁸

³⁸ "R. v. Hannora, 2018 ONCJ 821 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2018/2018oncj821/2018oncj821.html at paras 2, 9-11.

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19. When can a trier of fact convict an accused of mischief for an act or omission likely to constitute mischief causing actual danger to life or to constitute mischief in relation to property or computer data?

A trier of fact can convict an accused of mischief for an act or omission likely to constitute mischief causing actual danger to life or to constitute mischief in relation to property or computer data when the intentional act or omission is likely to constitute mischief causing actual danger to life or to constitute mischief in relation to property or computer data³⁹ and is not required to make a subjective assessment about whether the accused knew that mischief causing actual danger to life or mischief in relation to property or computer data would probably occur.⁴⁰

³⁹ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 430(5.1), read in context with “R. v. S. D. D., 2002 NFCA 18 (CanLII)” https://www.canlii.org/en/nl/nlfca/doc/2002/2002nfca18/2002nfca18.html at paras 26, 51, “R. v. K.T., 2005 MBCA 78 (CanLII)” https://www.canlii.org/en/mb/mbca/doc/2005/2005mbca78/2005mbca78.html at para 15, and “R. v. Gould, 2012 CanLII 10459 (NL SC)” https://www.canlii.org/en/nl/nlsc/doc/2012/2012canlii10459/2012canlii10459.html at para 28.

​⁴⁰ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 430(5.1), read in context with “R. v. S. D. D., 2002 NFCA 18 (CanLII)” https://www.canlii.org/en/nl/nlfca/doc/2002/2002nfca18/2002nfca18.html at paras 26, 51, “R. v. K.T., 2005 MBCA 78 (CanLII)” https://www.canlii.org/en/mb/mbca/doc/2005/2005mbca78/2005mbca78.html at para 15, and “R. v. Gould, 2012 CanLII 10459 (NL SC)” https://www.canlii.org/en/nl/nlsc/doc/2012/2012canlii10459/2012canlii10459.html at para 28.

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20. What is the standard for assessing likelihood to constitute mischief causing actual danger to life or mischief in relation to property or computer data?

Likelihood to constitute mischief causing actual danger to life or mischief in relation to property or computer data is judged on the basis of perception by a reasonable person.⁴¹

⁴¹ "R. v. S. D. D., 2002 NFCA 18 (CanLII)" https://www.canlii.org/en/nl/nlca/doc/2002/2002nfca18/2002nfca18.html at paras 49-50.

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21. What type of offence is mischief?

Mischief is a general intent offence.⁴²

⁴² "R. v. King, 2026 ONCA 522" https://coadecisions.ontariocourts.ca/coa/coa/en/item/24352/index.do at para 26, read in context with "R. v. King, 2024 ONSC 6458 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2024/2024onsc6458/2024onsc6458.html at para 94.

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​22. What does the fact that mischief is a general intent offence mean?

The fact that mischief is a general intent offence means that an accused cannot rely on self-induced intoxication falling short of automatism as a defence to a charge of mischief.⁴³

⁴³ "R. v. King, 2026 ONCA 522" https://coadecisions.ontariocourts.ca/coa/coa/en/item/24352/index.do at para 26, read in context with "R. v. King, 2024 ONSC 6458 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2024/2024onsc6458/2024onsc6458.html at para 94, and read in context with "R. v. Tatton, 2015 SCC 33, [2015] 2 S.C.R. 574" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15397/index.do at para 20.

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23. What are circumstances in which a person cannot be convicted of mischief?

No person commits mischief by reason only that the person stops work as a result of the failure of the person’s employer and the person to agree on any matter relating to the person’s employment.⁴⁴

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No person commits mischief by reason only that the person stops work as a result of the failure of the person’s employer and a bargaining agent acting on the person’s behalf to agree on any matter relating to the person’s employment.⁴⁵

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No person commits mischief by reason only that the person stops work as a result of the person taking part in a combination of workmen or employees for their own reasonable protection as workmen or employees.⁴⁶

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No person commits mischief by reason only that the person attends at or near or approaches a dwelling-house or place for the purpose only of obtaining or communicating information.⁴⁷

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A person shall not be convicted of mischief if the person acts with legal justification or excuse or colour of right.⁴⁸

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Interference with the use or exercise of incorporeal permits or incorporeal options cannot constitute the offence of mischief.⁴⁹

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Persuading a person to refrain from doing something cannot constitute the offence of mischief.⁵⁰

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An accused cannot be convicted of mischief when the property which the accused interfered with is never specified by the Crown and the trier of fact never says what property the accused is guilty of interfering with.⁵¹

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An accused who knocks another person’s glasses off but causes for the glasses damage so insignificant that the glasses were used by the person afterwards with no apparent need for repair cannot be convicted of mischief for obstructing, interrupting, or interfering with the lawful use, enjoyment or operation of glasses.⁵²

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An undetected trespass which causes no damage, due to not obstructing or interrupting the lawful use, enjoyment or operation of the property or of any person's use, enjoyment or operation of the property, cannot serve as a basis to convict an accused of mischief.⁵³

⁴⁴ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(6), 430(6)(a).
⁴⁵ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(6), 430(6)(b).
⁴⁶ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(6), 430(6)(c).
⁴⁷ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 430(7).
⁴⁸ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 429(2), 430(1), 430(1.1), 430(2), 430(3), 430(4), 430(4.1), 430(4.11), 430(4.2), 430(5.1).
⁴⁹ "Doubleview Capital Corp. v. Day, 2016 BCSC 231 (CanLII)" https://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc231/2016bcsc231.html at paras 68-69, 71.
⁵⁰ "Doubleview Capital Corp. v. Day, 2016 BCSC 231 (CanLII)" https://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc231/2016bcsc231.html at paras 68, 70-71.
⁵¹ "R. v. Hilan, 2015 ONCA 455" https://coadecisions.ontariocourts.ca/coa/coa/en/item/13934/index.do at paras 2-6.
⁵² "R. v. Amirjavid, 2024 ONSC 6989 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2024/2024onsc6989/2024onsc6989.html at paras 1, 88-91.
⁵³ "R. v. Beyo" https://coadecisions.ontariocourts.ca/coa/coa/en/item/1449/index.do at paras 25-33.

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24. What is the purpose of the exemption from mischief of stopping work in certain circumstances?

The purpose of the exemption from mischief of stopping work in certain circumstances is to decriminalize labour relations in Canada even though lawful labour activity might interfere with the lawful use and enjoyment of property.⁵⁴

⁵⁴ "R v Pawlowski, 2024 ABCA 342 (CanLII)" https://www.canlii.org/en/ab/abca/doc/2024/2024abca342/2024abca342.html at para 76, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(6), 430(6)(a), 430(6)(b), 430(6)(c).

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25. What is a dwelling-house, in this context?

A dwelling-house means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence⁵⁵ and includes a building within the curtilage of a dwelling-house that is connected to the dwelling-house by a doorway or by a covered and enclosed passage-way⁵⁶ and a unit that is designed to be mobile and to be used as a permanent or temporary residence and that is being used as such a residence.⁵⁷

⁵⁵ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 2.

⁵⁶ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 2.

⁵⁷ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 2.

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26. When does the defence to mischief of attending at or near or approaching a dwelling-house or place for the purpose only of obtaining or communicating information apply?

The defence to mischief of attending at or near or approaching a dwelling-house or place for the purpose only of obtaining or communicating information protects acts done for the purpose of communicating information that would otherwise constitute mischief regardless of whether the intended results of that communication were to interfere with or interrupt the use or enjoyment of another person’s property, even when the communication is unkind, unwise, and may not be the sort of behaviour most in society would engage in or want others to engage in.⁵⁸ This defence does not apply only to communication of information in order to persuade by rational argument.⁵⁹ The fact that the consequences of the communication may be to persuade others to act in a way that interrupts or interferes with someone else’s property is not fatal to this defence’s availability.⁶⁰ If the acts of the accused involve more than mere attending at or near a place for the purpose of communicating information, this defence will not apply.⁶¹

⁵⁸ "R. v. Tremblay, 2010 ONCA 469" https://coadecisions.ontariocourts.ca/coa/coa/en/item/9689/index.do at paras 17, 21.
⁵⁹ "R. v. Tremblay, 2010 ONCA 469" https://coadecisions.ontariocourts.ca/coa/coa/en/item/9689/index.do at paras 13, 17.
⁶⁰ "R. v. Tremblay, 2010 ONCA 469" https://coadecisions.ontariocourts.ca/coa/coa/en/item/9689/index.do at para 17.
⁶¹ "R. v. Tremblay, 2010 ONCA 469" https://coadecisions.ontariocourts.ca/coa/coa/en/item/9689/index.do at para 17.

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27. What is an example of a legal justification for what would otherwise be mischief?

An accused who has a legal right to remove a part from a larger whole and who removes the part from the larger whole without causing unnecessary damage apparently has a legal justification for any damage caused to the larger whole by the part’s removal.⁶²

⁶² "R. v. Long" https://coadecisions.ontariocourts.ca/coa/coa/en/item/360/index.do at paras 1-6.

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28.What is a colour of right?

A colour of right is an honest belief in a state of facts or civil law which, if existing, would be a legal justification or excuse for a person’s conduct.⁶³ The issue, in the context of a defence of colour of right, is whether the accused has an honest subjectively held belief in the accused’s conduct’s permissibility.⁶⁴ The belief must be honestly held,⁶⁵ but the belief does not have to be reasonable,⁶⁶ although the belief’s reasonableness is a factor for a trier to take into account in deciding whether the belief was honestly held.⁶⁷ Colour of right is not excluded by errors of fact and law,⁶⁸ but colour of right cannot be based upon an accused’s ignorance of the Criminal Code’s jurisdiction.⁶⁹

⁶³ "R. v. Tompkins, 2017 ONSC 5524 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2017/2017onsc5524/2017onsc5524.html at para 114.
⁶⁴ "R. v. Kalair and Panchbhaya, 2019 ONSC 3471 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2019/2019onsc3471/2019onsc3471.html at paras 27-30.
⁶⁵ "R. v. J.F.B., 2026 ONSC 264 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2026/2026onsc264/2026onsc264.html at para 33.
⁶⁶ "R. v. J.F.B., 2026 ONSC 264 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2026/2026onsc264/2026onsc264.html at para 33.
⁶⁷ "R. v. J.F.B., 2026 ONSC 264 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2026/2026onsc264/2026onsc264.html at para 33.
⁶⁸ "R. v. Hajek, 2009 ONCJ 75 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2009/2009oncj75/2009oncj75.html at para 44.
⁶⁹ "R. v. Hajek, 2009 ONCJ 75 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2009/2009oncj75/2009oncj75.html at para 44.

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29. How can a defence of colour of right be used?​

In order to put the defence of colour of right into play, an accused bears the onus of showing that there is an air of reality to the defence of colour of right, by which is some evidence upon which a trier of fact, properly instructed and acting reasonably, could be left in a state of reasonable doubt about colour of right.⁷⁰ Once the air of reality test is met, the burden falls upon the Crown to disprove the defence of colour of right beyond a reasonable doubt.⁷¹

​

The inquiry into whether there is an evidential foundation for a defence is referred to as the air of reality test.⁷² The correct approach to the air of reality test is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit.⁷³ When there is an air of reality to a defence, the defence should go to the trier of fact.⁷⁴ A defence which lacks an air of reality should be kept from the trier of fact even when the defence lacking an air of reality represents the accused’s only chance for an acquittal.⁷⁵ A defence possesses an air of reality if a properly instructed jury acting reasonably could acquit the accused on the basis of the defence.⁷⁶ The air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive.⁷⁷ The air of reality test is concerned only with whether a defence should be submitted to the trier of fact for consideration.⁷⁸

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The air of reality test does not assess whether the defence is strong, but assesses whether the evidence discloses a real issue to be decided by the trier of fact.⁷⁹

​

Whether there is an air of reality to a defence is a question of law subject to appellate review.⁸⁰ It is an error of law to put to the trier of fact a defence lacking an air of reality and it is an error of law to keep from the trier of fact a defence that has an air of reality.⁸¹

​

In applying the air of reality test, a trial judge considers the totality of the evidence and assumes the evidence relied upon by the accused to be true.⁸² The evidential foundation can be indicated by evidence emanating from the examination in chief or cross-examination of the accused, of defence witnesses, or of Crown witnesses, can also rest upon the case’s factual circumstances, or upon any other evidential source on the record.⁸³ There is no requirement that the evidence supporting the air of reality be adduced by the accused.⁸⁴

⁷⁰ “R. v. Simpson, 2015 SCC 40, [2015] 2 S.C.R. 827” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15477/index.do at para 32.

⁷¹ “R. v. Simpson, 2015 SCC 40, [2015] 2 S.C.R. 827” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15477/index.do at para 32.

⁷² “R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 50.

⁷³ “R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 49.

⁷⁴ “R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 49.

⁷⁵ “R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 51.

⁷⁶ “R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 2.

⁷⁷ “R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 52.

⁷⁸ “R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 52.

⁷⁹ “R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 54.

⁸⁰ “R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 55.

⁸¹ “R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 55.

⁸² “R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 53.

⁸³ “R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 53.

⁸⁴ “R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 53.

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30. Does the fact that an accused has only a partial interest in property prevent an accused from relying upon colour of right as a defence against a charge of mischief?

The fact that an accused has only a partial interest in property can prevent an accused from relying upon colour of right as a defence against a charge of mischief.⁸⁵ But notwithstanding the fact that a partial interest in property caused by joint ownership provides no defence to an accused charged with mischief, the accused can be acquitted of mischief due to colour of right in the form of the accused’s belief that the accused was entitled to break a door in order to gain admission into a jointly owned dwelling which the accused believed that the accused was entitled to enter.⁸⁶

⁸⁵ "R. v. Linardatos, 2005 ONCJ 56 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2005/2005oncj56/2005oncj56.html at paras 1, 48, 50-51.
⁸⁶ "R. v. Hajek, 2009 ONCJ 75 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2009/2009oncj75/2009oncj75.html at paras 1, 3, 13, 17, 26, 29-31, 41-42, 45, 53-54.

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31. Can an accused be convicted of mischief for engaging in conduct in one property which in some way interferes with an adjacent property?

An accused can be convicted of mischief for engaging in conduct in one property which in some way interferes with an adjacent property.⁸⁷

⁸⁷ See, e.g., "R. v. Orton, 2019 ONCA 334" https://coadecisions.ontariocourts.ca/coa/coa/en/item/17786/index.do at paras 64-74.

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32. In what circumstances is videoing property mischief in Ontario?

Although Ontarian jurisprudence has established that videoing a dwelling openly can constitute mischief⁸⁸ and surreptitious videoing of a dwelling, when detected by a person lawfully using the dwelling, can constitute mischief,⁸⁹ Ontarian jurisprudence says that when the property being videoed is commercial property and therefore has a lesser expectation of privacy, videoing the property is not an act for which a person can be convicted of mischief.⁹⁰

⁸⁸ "R. v. Almeida" https://coadecisions.ontariocourts.ca/coa/coa/en/item/3542/index.do at paras 1-4.
⁸⁹ "R. v. Manoux, 2017 ONCJ 58 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2017/2017oncj58/2017oncj58.html at paras 1, 5, 21-22, 53-54, 78-80.
⁹⁰ "R. v. Klimowicz, 2021 ONSC 2589 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2021/2021onsc2589/2021onsc2589.html at paras 1, 5, 11, 16, 25-28.

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33. Can an accused be convicted of mischief for shouting with a loud voice during a public meeting so that the meeting’s other attendees leave the meeting?

An accused can be convicted of mischief for shouting with a loud voice during a public meeting so that the meeting’s other attendees leave the meeting.⁹¹

⁹¹ "R. v. Rimke, 2005 CanLII 15462 (ON SC)" https://www.canlii.org/en/on/onsc/doc/2005/2005canlii15462/2005canlii15462.html at paras 1, 5, 28-32.

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34. Can an accused be convicted of mischief for making a sign useless by removing the sign?

An accused can be convicted of mischief for making a sign useless by removing the sign.⁹²

⁹² "R. v. Boujikian, 2007 ONCJ 33 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2007/2007oncj33/2007oncj33.html at paras 1, 6, 103.

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35. Can an accused be convicted of mischief for sending such an excessive amount of fax to a fax machine that the fax machine cannot be used for other purposes?

An accused can be convicted of mischief for sending such an excessive amount of fax to a fax machine that the fax machine cannot be used for other purposes.⁹³

⁹³ "R. v. Robbins, 2003 CanLII 26610 (ON SC)" https://www.canlii.org/en/on/onsc/doc/2003/2003canlii26610/2003canlii26610.html at paras 1-2, 22, 53.

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36. Can an accused be convicted of mischief for placing debris upon property so that the property cannot be travelled through easily?

An accused can be convicted of mischief for placing debris upon property so that the property cannot be travelled through easily.⁹⁴

⁹⁴ "R. v. Janusas, 2010 ONSC 2068 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2010/2010onsc2068/2010onsc2068.html at paras 2, 8-11, 21, 94.

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37. Can an accused be convicted of mischief for placing a tracking device within another person’s vehicle which the other person learns about, causing to the other person distress?

An accused can be convicted of mischief for placing a tracking device within another person’s vehicle which the other person learns about, causing to the other person distress.⁹⁵

⁹⁵ "R. v. Daley, 2025 ONCJ 715 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2025/2025oncj715/2025oncj715.html at paras 35-39.

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38. Can an accused be convicted of mischief for building a barricade at an occupation site used by protestors?

An accused can be convicted of mischief for building a barricade at an occupation site used by protestors.⁹⁶

⁹⁶ "R. v. Parkinson, 2009 CanLII 729 (ON SC)" https://www.canlii.org/en/on/onsc/doc/2009/2009canlii729/2009canlii729.html at paras 1-2, 13, 16, 30.

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39. Can an accused be convicted of mischief for unlawfully accessing another person’s email or social media account?

An accused can be convicted of mischief for unlawfully accessing another person’s email or social media account.⁹⁷

⁹⁷ "R. v. Carter, 2013 ONSC 7792 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2013/2013onsc7792/2013onsc7792.html at para 8.

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40. Can an accused be convicted of mischief for changing another person’s computer account’s password or computer program’s account’s password without the other person’s permission?

An accused can be convicted of mischief for changing another person’s computer account’s password or computer program’s account’s password without the other person’s permission.⁹⁸

⁹⁸ "R. v. S.F., 2024 ONSC 6045 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2013/2013onsc7792/2013onsc7792.html at paras 3, 5, 20-26, 96-104.

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41. Can an accused be convicted of mischief for grabbing another person’s cellphone while the person is using the cellphone and preventing the other person from using the cellphone?

An accused can be convicted of mischief for grabbing another person’s cellphone while the person is using the cellphone and preventing the other person from using the cellphone.⁹⁹

⁹⁹ "R. v. J.F.B., 2026 ONSC 264 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2026/2026onsc264/2026onsc264.html at para 66, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(1), 430(1)(c), 430(1)(d).

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42. Can an accused be convicted of mischief for wilfully rendering property dangerous by failing to take adequate safety precautions as mandated by the provincial Fire Code?

An accused can be convicted of mischief for wilfully rendering property dangerous by failing to take adequate safety precautions as mandated by the provincial Fire Code.¹⁰⁰

¹⁰⁰ "R. v. Singh and Singh, 2014 ONSC 4564 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2014/2014onsc4564/2014onsc4564.html at paras 2-4, 95-98, 103-104.

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43. Can an accused be convicted of mischief for unlawfully killing an animal belonging to another person?

An accused can be convicted of mischief for unlawfully killing an animal belonging to another person.¹⁰¹

¹⁰¹ See, e.g., "R. v. D.R., 2018 ONCJ 900 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2011/2011onsc2192/2011onsc2192.html at paras 1-2, 62-63, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(1), 430(1)(a), 430(4).

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​44. Can an accused be convicted of mischief for driving a vehicle in such a way that the other drivers on the road are restricted in their ability to perform lawful manoeuvres of driving?

An accused can be convicted of mischief for driving a vehicle in such a way that the other drivers on the road are restricted in their ability to perform lawful manoeuvres of driving.¹⁰²

¹⁰² Cf, "R. v. Allaudin, 2019 ONCJ 53 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2019/2019oncj53/2019oncj53.html at paras 1, 8, 43, 54, 56, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(1), 430(1)(c).

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45. Can an accused be convicted of mischief for driving a vehicle in such a way that the traffic on the road is forced to stop?

An accused can be convicted of mischief for driving a vehicle in such a way that the traffic on the road is forced to stop.¹⁰³

¹⁰³ Cf, "R. v. Allaudin, 2019 ONCJ 53 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2019/2019oncj53/2019oncj53.html at paras 1, 3, 8, 43, 54-55, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(1), 430(1)(c).

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46. Can an accused be convicted of mischief for harassing a person who is lawfully occupying public property by causing the person to feel scared, thus interfering with the person’s use of the property?

An accused can be convicted of mischief for harassing a person who is lawfully occupying public property by causing the person to feel scared, thus interfering with the person’s use of the property.¹⁰⁴

¹⁰⁴ "R. v. Balasooriyan, 2024 ONCJ 478 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2024/2024oncj478/2024oncj478.html at paras 2, 30-31, 43-47.

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47. Can the defence of de minimis apply to a charge of mischief?

It is apparently possible for the defence of de minimis to apply to a charge of mischief.¹⁰⁵

¹⁰⁵ "R. v. Griffin, 2013 ONCJ 811 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2013/2013oncj811/2013oncj811.html at paras 54-56.

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48. What if the act for which the accused is being charged with mischief was done due to necessity?

The defence of necessity can be used to defend an accused charged with mischief.¹⁰⁶

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The defence of necessity is an excuse.¹⁰⁷ An excuse concedes that the act was wrongful but refrains from convicting the accused because of the dire circumstances surrounding the act’s commission.¹⁰⁸

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Three elements that must be present for the defence of necessity: imminent peril or danger; the accused had had no reasonable legal alternative to the course of action which the accused undertook; and there must be proportionality between the harm inflicted and the harm avoided.¹⁰⁹

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The urgent situation of clear and imminent peril must have disaster imminent or harm unavoidable and near.¹¹⁰ The peril, rather than being merely foreseeable or likely, must be on the verge of transpiring and virtually certain to occur.¹¹¹ When the situation of peril clearly should have been foreseen and avoided, an accused cannot reasonably claim any immediate peril.¹¹² The imminent peril must be evaluated on a modified objective standard which involves an objective evaluation, but takes into account the situation and characteristics of the particular accused.¹¹³ Acute suffering can constitute imminent peril.¹¹⁴

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If there was a reasonable legal alternative to breaking the law, the defence of necessity cannot succeed.¹¹⁵ Because this requirement involves a realistic appreciation of the alternatives open to a person, the accused need not be placed in the last resort imaginable, but must have no reasonable legal alternative, and if an alternative to breaking the law exists, the defence of necessity fails.¹¹⁶ The lack of reasonable legal alternative must be evaluated on a modified objective standard which involves an objective evaluation, but takes into account the situation and characteristics of the particular accused.¹¹⁷

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The proportionality must be measured on an objective standard.¹¹⁸

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The trial judge must be satisfied that there is evidence sufficient to give an air of reality to each of the three requirements of the defence of necessity. If the trial judge concludes that there is no air of reality to any one of the three requirements, the defence of necessity should not be left to the trier of fact.¹¹⁹

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The inquiry into whether there is an evidential foundation for a defence is referred to as the air of reality test.¹²⁰ The correct approach to the air of reality test is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit.¹²¹ When there is an air of reality to a defence, the defence should go to the trier of fact.¹²² A defence which lacks an air of reality should be kept from the trier of fact even when the defence lacking an air of reality represents the accused’s only chance for an acquittal.¹²³ A defence possesses an air of reality if a properly instructed jury acting reasonably could acquit the accused on the basis of the defence.¹²⁴ The air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive.¹²⁵ The air of reality test is concerned only with whether a defence should be submitted to the trier of fact for consideration.¹²⁶

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The air of reality test does not assess whether the defence is strong, but assesses whether the evidence discloses a real issue to be decided by the trier of fact.¹²⁷

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Whether there is an air of reality to a defence is a question of law subject to appellate review.¹²⁸ It is an error of law to put to the trier of fact a defence lacking an air of reality and it is an error of law to keep from the trier of fact a defence that has an air of reality.¹²⁹

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In applying the air of reality test, a trial judge considers the totality of the evidence and assumes the evidence relied upon by the accused to be true.¹³⁰ The evidential foundation can be indicated by evidence emanating from the examination in chief or cross-examination of the accused, of defence witnesses, or of Crown witnesses, can also rest upon the case’s factual circumstances, or upon any other evidential source on the record.¹³¹ There is no requirement that the evidence supporting the air of reality be adduced by the accused.¹³²

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When the accused establishes that the defence of necessity has an air of reality, the burden shifts to the Crown to prove beyond a reasonable doubt that the accused cannot be protected by a defence of necessity.¹³³

¹⁰⁶ See, e.g., "R. v. Ghaffari, 2017 ONCJ 523 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2017/2017oncj523/2017oncj523.html at paras 1-2.
¹⁰⁷ "R. v. Ruzic, [2001] 1 S.C.R. 687, 2001 SCC 24" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1861/index.do at para 29.
¹⁰⁸ "R. v. Ruzic, [2001] 1 S.C.R. 687, 2001 SCC 24" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1861/index.do at para 29.
¹⁰⁹ "R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1836/index.do at para 28.
¹¹⁰ "R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1836/index.do at para 29.
¹¹¹ "R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1836/index.do at para 29.
¹¹² "R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1836/index.do at para 29.
¹¹³ "R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1836/index.do at paras 32-33.
¹¹⁴ "R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1836/index.do at para 38.
¹¹⁵ "R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1836/index.do at para 30.
¹¹⁶ "R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1836/index.do at para 30.
¹¹⁷ "R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1836/index.do at paras 32-33.
¹¹⁸ "R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1836/index.do at para 34.
¹¹⁹ "R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1836/index.do at paras 28, 36.
¹²⁰ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 50.
¹²¹ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 49.
¹²² "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 51.
¹²³ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 51.
¹²⁴ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 2.
¹²⁵ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 52.
¹²⁶ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 52.
¹²⁷ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 54.
¹²⁸ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 55.
¹²⁹ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 55.
¹³⁰ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 53.
¹³¹ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 53.
¹³² "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 50.
¹³³ Such is how I interpret "R. v. Ruzic, [2001] 1 S.C.R. 687, 2001 SCC 24" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1861/index.do at para 100.

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49. What if the act for which the accused is being charged with mischief was done while the accused was suffering from a mental disorder?

No person is criminally responsible for an act committed or an omission made while the person is suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that the act or omission was wrong.¹³⁴ Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility until the contrary is proved on the balance of probabilities.¹³⁵ Proof on a balance of probabilities means that the trier of fact must scrutinize the relevant evidence with care in order to determine whether it is more likely than not that an alleged event occurred.¹³⁶ The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.¹³⁷ When the trier of fact finds that an accused committed the act or made the omission that formed the basis of the offence charged but was at the time suffering from mental disorder so as to be exempt from criminal responsibility, the trier of fact shall render a verdict that the accused committed the act or made the omission but is not criminally responsible on account of mental disorder.¹³⁸ This forms what I refer to as the defence of NCR.

¹³⁴ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 16(1).

¹³⁵ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 16(2).

¹³⁶ “F.H. v. McDougall, [2008] 3 S.C.R. 41, 2008 SCC 53” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6211/index.do at para 49.

¹³⁷ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 16(3).

​¹³⁸ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 672.43.

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​50. What is a mental disorder, in this context?

A mental disorder means a disease of the mind.¹³⁹

¹³⁹ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 2.

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​51. What is a disease of the mind, in this context?

A disease of the mind includes any illness, disorder or abnormal condition which impairs the human mind and its functioning,¹⁴⁰ excluding self-induced states caused by alcohol or drugs and transitory mental states such as hysteria or concussion.¹⁴¹ However, the mere fact that an accused is intoxicated when the offence occurs does not prevent an accused’s disease of the mind from serving as a basis for an accused’s NCR defence.¹⁴²

¹⁴⁰ “R. v. Bharwani, 2025 SCC 26” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21149/index.do at para 53.

¹⁴¹ “R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 753” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7976/index.do at paras 39-40.

​¹⁴² Cf, “R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7976/index.do at paras 37, 69.

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52. What is appreciating the nature and quality of the act or omission, in this context?

Appreciating the nature and quality of the act or omission means more than a mere knowledge of the physical nature of the acts being committed.¹⁴³ Appreciating the nature and quality of the act or omission means an ability to perceive the consequences, impact, and results of an act or omission,¹⁴⁴ and does not refer to an ability to understand the sanctions attaching to the crime’s commission.¹⁴⁵

¹⁴³ “R. v. Abbey, [1982] 2 S.C.R. 24” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2447/index.do at p 31.

¹⁴⁴ “R. v. Abbey, [1982] 2 S.C.R. 24” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2447/index.do at p 33.

¹⁴⁵ “R. v. Abbey, [1982] 2 S.C.R. 24” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2447/index.do at pp 34-35.

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53. What is knowing that the act or omission was wrong, in this context?

“Wrong” refers not only to legal wrongness but also to moral wrongness.¹⁴⁶ The incapability to know that an act or omission was wrong refers not to an abstract or generic understanding but rather to inability in the specific circumstances when the accused did the criminal act or omission,¹⁴⁷ and the accused’s disease of the mind does not need to have convinced the accused that in the circumstances the criminal acts or omissions were made lawful by reasons such as self-defence.¹⁴⁸ An accused may be aware that an act or omission is contrary to law but, because of disease of the mind, at the same time be incapable of knowing that the act or omission is morally wrong.¹⁴⁹

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The accused’s wrongful act must be held by the accused to be morally acceptable according to Canadian society’s standards rather than an individual’s standards in order for the accused with the mental capacity to assess actions’ moral acceptableness to benefit from a defence of NCR,¹⁵⁰ although an accused who lacks the mental capacity to assess whether an action is morally acceptable can also benefit from a defence of NCR.¹⁵¹ This means that when the accused is guided by a moral code different from Canadian society’s in which the criminal act was acceptable, the accused cannot benefit from the defence of NCR even when the accused suffers from a severe mental illness which is linked to the criminal actions for which the accused is facing charges.¹⁵²

¹⁴⁶ "R. v. Szostak, 2012 ONCA 503" https://coadecisions.ontariocourts.ca/coa/coa/en/item/11433/index.do at paras 57-58.
¹⁴⁷ "R. v. Szostak, 2012 ONCA 503" https://coadecisions.ontariocourts.ca/coa/coa/en/item/11433/index.do at para 56.
¹⁴⁸ "R. v. Szostak, 2012 ONCA 503" https://coadecisions.ontariocourts.ca/coa/coa/en/item/11433/index.do at para 56.
¹⁴⁹ "R. v. Worrie, 2022 ONCA 471" https://coadecisions.ontariocourts.ca/coa/coa/en/item/20706/index.do at para 148.
¹⁵⁰ "R. v. Dobson, 2018 ONCA 589" https://coadecisions.ontariocourts.ca/coa/coa/en/item/17002/index.do at para 24.
¹⁵¹ "R. v. Dobson, 2018 ONCA 589" https://coadecisions.ontariocourts.ca/coa/coa/en/item/17002/index.do at para 24.
¹⁵² "R. v. Dobson, 2018 ONCA 589" https://coadecisions.ontariocourts.ca/coa/coa/en/item/17002/index.do at paras 4, 29-30.

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54. Is expert evidence required in order to advance a defence of NCR?

Expert evidence is not required in order to advance a defence of NCR.¹⁵³

¹⁵³ "R. v. Worrie, 2022 ONCA 471" https://coadecisions.ontariocourts.ca/coa/coa/en/item/20706/index.do at para 97.

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55. What is a particular way in which an accused can benefit from a defence of NCR in the context of being charged with mischief?

Evidence can establish that an accused, due to a mental disorder, wrongly believed that the act for which the accused was convicted of mischief was necessary in order to signal police about criminal activity.¹⁵⁴

¹⁵⁴ Cf, "R. v. Cunneen, 2024 ONSC 4541 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2024/2024onsc4541/2024onsc4541.html at paras 9-14, read in context with "R. v. Cunneen, 2025 ONSC 597 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2025/2025onsc597/2025onsc597.html at paras 2, 40-45.

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56. What if the act for which the accused is being charged with mischief was done in defence of the accused or another person?

An accused is not guilty of an offence if the accused believes on reasonable grounds that force is being used against the accused or another person or that a threat of force is being made against the accused or another person;¹⁵⁵ the act that constitutes the offence is committed for the purpose of defending or protecting the accused or the other person from that use or threat of force;¹⁵⁶ and the act committed is reasonable in the circumstances.¹⁵⁷

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In determining whether the act committed is reasonable in the circumstances, the Court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: the nature of the force or threat;¹⁵⁸ the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;¹⁵⁹ the accused’s role in the incident;¹⁶⁰ whether any party to the incident used or threatened to use a weapon;¹⁶¹ the size, age, gender and physical capabilities of the parties to the incident;¹⁶² the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;¹⁶³ any history of interaction or communication between the parties to the incident;¹⁶⁴ the nature and proportionality of the accused’s response to the use or threat of force;¹⁶⁵ and whether the act committed was in response to a use or threat of force that the accused knew was lawful.¹⁶⁶

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This defence of self-defence does not apply if the force is used or threatened by another person for the purpose of doing something that the person required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.¹⁶⁷

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The same three basic issues arise in all cases of self-defence: whether the accused reasonably believed that force or a threat of force was being used against the accused or someone else; whether the subjective purpose for responding to the threat was to protect the accused or other people; and whether the accused’s act was reasonable in the circumstances.¹⁶⁸ These three inquiries can usefully be conceptualized as the catalyst; the motive; and the response.¹⁶⁹

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In the context of self-defence, the accused’s belief must be held on reasonable grounds.¹⁷⁰

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The question is what a reasonable person with the accused’s relevant characteristics and experiences would perceive.¹⁷¹ An honest but mistaken belief can nevertheless be reasonable and does not automatically bar a claim to self-defence.¹⁷² To say that a belief is unreasonable in the context of a self-defence claim is to declare the accused’s act criminally blameworthy.¹⁷³

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Whether an accused can benefit from the defence of self-defence requires determining whether the accused subjectively engaged in the act was undertaken by the accused in order to defend or protect the accused or others from the use or threat of force.¹⁷⁴

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The focus must be upon what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time.¹⁷⁵

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There is no requirement for the Crown to show that an accused’s role in the incident was unreasonable before an accused’s role in the incident may be considered as a factor in determining whether the act committed was reasonable.¹⁷⁶

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When both parties are engaged in aggressive and confrontational behaviour, it is not necessary to find that only one party instigated, provoked, caused, or consented.¹⁷⁷ The accused’s role in the incident includes acts and omissions, decisions taken and rejected, and alternative courses of action which may not have been considered, capturing the full range of human conduct from the helpful stranger and the innocent victim of an unprovoked assault to the initial and persistent aggressor and everything in between, encompassing not only provocative or unlawful conduct but also hotheadedness, the reckless escalation of risk, and a failure to reassess reasonably the situation as the situation unfolds.¹⁷⁸

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The analytical purpose of considering the accused’s role in the incident is the accused’s role in the incident’s relevance to the reasonableness assessment when there is something about what the accused did or did not do which led to a situation when the accused felt the need to resort to an otherwise unlawful act to defend the accused or another.¹⁷⁹ The act’s ultimate reasonableness is coloured by whether the accused caused or contributed to the circumstances which the accused claims compelled the accused to respond.¹⁸⁰ When an accused opts to stand the accused’s ground or advance while armed towards a perceived threat rather than de-escalating or reassessing the situation as new information becomes available, a trier of fact is entitled to account for this role when assessing the accused’s ultimate act’s reasonableness.¹⁸¹ But “role in the incident” is not limited to conduct that would weigh against the reasonableness of the accused’s act and when the accused plays a praiseworthy role in the incident, this may be a compelling factor supporting the conclusion that the accused’s ultimate act was reasonable self-defence.¹⁸²

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A trier of fact can conclude that self-defence is not disproven even though the accused escalated the incident that led to the victim’s death, was mistaken about the existence of the use, of force and used disproportionate force.¹⁸³

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An accused need not wait until the accused reasonably apprehends death or grievous bodily harm before resorting to deadly force.¹⁸⁴

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In order for an accused to use the defence of self-defence, the accused must prove that self-defence has an air of reality, following which the Crown must disprove the accused’s self-defence beyond a reasonable doubt.¹⁸⁵

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The inquiry into whether there is an evidential foundation for a defence is referred to as the air of reality test.¹⁸⁶ The correct approach to the air of reality test is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit.¹⁸⁷ When there is an air of reality to a defence, the defence should go to the trier of fact.¹⁸⁸ A defence which lacks an air of reality should be kept from the trier of fact even when the defence lacking an air of reality represents the accused’s only chance for an acquittal.¹⁸⁹ A defence possesses an air of reality if a properly instructed jury acting reasonably could acquit the accused on the basis of the defence.¹⁹⁰ The air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive.¹⁹¹ The air of reality test is concerned only with whether a defence should be submitted to the trier of fact for consideration.¹⁹²

​

The air of reality test does not assess whether the defence is strong, but assesses whether the evidence discloses a real issue to be decided by the trier of fact.¹⁹³

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Whether there is an air of reality to a defence is a question of law subject to appellate review.¹⁹⁴ It is an error of law to put to the trier of fact a defence lacking an air of reality and it is an error of law to keep from the trier of fact a defence that has an air of reality.¹⁹⁵

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In applying the air of reality test, a trial judge considers the totality of the evidence and assumes the evidence relied upon by the accused to be true.¹⁹⁶ The evidential foundation can be indicated by evidence emanating from the examination in chief or cross-examination of the accused, of defence witnesses, or of Crown witnesses, can also rest upon the case’s factual circumstances, or upon any other evidential source on the record.¹⁹⁷ There is no requirement that the evidence supporting the air of reality be adduced by the accused.¹⁹⁸

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It is possible for an accused to use the defence of self-defence in response to a charge of mischief.¹⁹⁹

​​

¹⁵⁵ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(1), 34(1)(a).
¹⁵⁶ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(1), 34(1)(b).
¹⁵⁷ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(1), 34(1)(c).
¹⁵⁸ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(2), 34(2)(a).
¹⁵⁹ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(2), 34(2)(b).
¹⁶⁰ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(2), 34(2)(c).
¹⁶¹ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(2), 34(2)(d).
¹⁶² "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(2), 34(2)(e).
¹⁶³ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(2), 34(2)(f).
¹⁶⁴ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(2), 34(2)(f.1).
¹⁶⁵ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(2), 34(2)(g).
¹⁶⁶ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(2), 34(2)(h).
¹⁶⁷ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(1), 34(1)(a), 34(1)(b), 34(1)(c), 34(3).
¹⁶⁸ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 37.
¹⁶⁹ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 51.
¹⁷⁰ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 53.
¹⁷¹ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 57.
¹⁷² "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 57.
¹⁷³ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 57.
¹⁷⁴ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at paras 37, 59.
¹⁷⁵ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 65.
¹⁷⁶ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 69, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(1), 34(1)(c).
¹⁷⁷ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 83, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(1), 34(1)(c).
¹⁷⁸ Cf, "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 84, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(1), 34(1)(c).
¹⁷⁹ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 85.
¹⁸⁰ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 87.
¹⁸¹ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 90.
¹⁸² "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 101, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(1), 34(1)(c).
¹⁸³ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 105.
¹⁸⁴ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 104.
¹⁸⁵ "R. v. B.F., 2025 SCC 41" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21301/index.do at para 51.
¹⁸⁶ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 50.
¹⁸⁷ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 49.
¹⁸⁸ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 51.
¹⁸⁹ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 51.
¹⁹⁰ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 2.
¹⁹¹ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 52.
¹⁹² "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 52.
¹⁹³ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 54.
¹⁹⁴ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 55.
¹⁹⁵ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 55.
¹⁹⁶ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 53.
¹⁹⁷ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 53.
¹⁹⁸ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 53.
¹⁹⁹ Cf, "R. v. Williams, 2017 BCPC 230 (CanLII)" https://www.canlii.org/en/bc/bcpc/doc/2017/2017bcpc230/2017bcpc230.html at paras 3-5, 42-44.

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57. What if the act for which the accused is being charged with mischief was done in defence of property?

It is possible for an accused to use the defence of defence of property in response to a charge of mischief.²⁰⁰

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An accused is not guilty of an offence if the accused either believes on reasonable grounds that the accused is in peaceable possession of property or is acting under the authority of, or lawfully assisting, a person whom the accused believes on reasonable grounds is in peaceable possession of property; the accused believes on reasonable grounds that another person is about to enter, is entering or has entered the property without being entitled by law to do so, is about to take the property, is doing so or has just done so, or is about to damage or destroy the property, or make it inoperative, or is doing so; the act that constitutes the offence is committed for the purpose of preventing the other person from entering the property, or removing that person from the property, or preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and the act committed is reasonable in the circumstances.²⁰¹ This defence of defence of property does not apply if the person who believes on reasonable grounds that the person is, or who is believed on reasonable grounds to be, in peaceable possession of the property does not have a claim of right to the property and the other person is entitled to the property’s possession by law.²⁰² This defence of defence of property does not apply if the other person is doing something that the other person is required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.²⁰³

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The defence of defence of property is available when the act that constitutes the offence is committed for the purpose of removing a person who is not entitled to enter the property or preventing that person from taking property.²⁰⁴

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This defence of defence of property has four elements: the accused believes on reasonable grounds that the accused is in peaceable possession of property;²⁰⁵ threat to property; the protective purpose; and reasonable response.²⁰⁶

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Peaceable possession means possession acquiesced in by all other persons, including rival claimants, and not disturbed by any forcible attempt at ouster nor by adverse suits to recover the possession,²⁰⁷ and does not prevent an accused from using the defence of defence of property when the accused, not physically possessing the property, believes that another person is unlawfully using the property.²⁰⁸

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The threat to property must be theft or damage or trespassing.²⁰⁹ Even when an accused’s property was not being threatened, the accused can benefit from the defence of defence of property when the accused believed on reasonable grounds that the property was being so threatened.²¹⁰

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The protective purpose refers to the accused’s motive, a specific intent, which must accompany the act which is alleged to be the offence.²¹¹ The action in question must be subjectively for the purpose of protecting the property against theft, damage or trespass.²¹² But an accused who assaults a trespasser who is in the process of leaving the property is not acting with the purpose of defending property against trespassers.²¹³

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The response’s reasonableness is objectively assessed.²¹⁴ The response’s reasonableness is not measured according to a standard of perfection.²¹⁵ An accused who responds to an actual or alleged threat to property by applying force rather than by first trying to address the problem through talking may be found to not be acting reasonably in the circumstances,²¹⁶ but an accused who responds to what the accused reasonably believes is a theft by seizing the allegedly stolen property from the thief may be acting reasonably rather than engaging in the crime of assault.²¹⁷

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The accused must show that every element of the defence of defence of property has an air of reality,²¹⁸ after which the burden shifts to the Crown to prove beyond a reasonable doubt that at least one element of the defence of defence of property is absent.²¹⁹

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The inquiry into whether there is an evidential foundation for a defence is referred to as the air of reality test.²²⁰ The correct approach to the air of reality test is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit.²²¹ When there is an air of reality to a defence, the defence should go to the trier of fact.²²² A defence which lacks an air of reality should be kept from the trier of fact even when the defence lacking an air of reality represents the accused’s only chance for an acquittal.²²³ A defence possesses an air of reality if a properly instructed jury acting reasonably could acquit the accused on the basis of the defence.²²⁴ The air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive.²²⁵ The air of reality test is concerned only with whether a defence should be submitted to the trier of fact for consideration.²²⁶

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The air of reality test does not assess whether the defence is strong, but assesses whether the evidence discloses a real issue to be decided by the trier of fact.²²⁷

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Whether there is an air of reality to a defence is a question of law subject to appellate review.²²⁸ It is an error of law to put to the trier of fact a defence lacking an air of reality and it is an error of law to keep from the trier of fact a defence that has an air of reality.²²⁹

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In applying the air of reality test, a trial judge considers the totality of the evidence and assumes the evidence relied upon by the accused to be true.²³⁰ The evidential foundation can be indicated by evidence emanating from the examination in chief or cross-examination of the accused, of defence witnesses, or of Crown witnesses, can also rest upon the case’s factual circumstances, or upon any other evidential source on the record.²³¹ There is no requirement that the evidence supporting the air of reality be adduced by the accused.²³²

²⁰⁰ "R. v Beck, 2015 CanLII 47178 (NL PC)" https://www.canlii.org/en/nl/nlpc/doc/2015/2015canlii47178/2015canlii47178.html at paras 3-5, 7, 19, 32-39.
²⁰¹ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 35(1), 35(1)(a), 35(1)(b), 35(1)(b)(i), 35(1)(b)(ii), 35(1)(c)(i), 35(1)(c)(ii), 35(1)(d).
²⁰² "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 35(1), 35(1)(a), 35(1)(b), 35(1)(b)(i), 35(1)(b)(ii), 35(1)(c)(i), 35(1)(c)(ii), 35(1)(d), 35(2).
²⁰³ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 35(1), 35(1)(a), 35(1)(b), 35(1)(b)(i), 35(1)(b)(ii), 35(1)(c)(i), 35(1)(c)(ii), 35(1)(d), 35(3).
²⁰⁴ "R. v. La Force, 2019 ONCA 522" https://coadecisions.ontariocourts.ca/coa/coa/en/item/17958/index.do at para 9, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 35(1), 35(1)(a), 35(1)(b), 35(1)(b)(i), 35(1)(b)(ii), 35(1)(c)(i), 35(1)(c)(ii), 35(1)(d).
²⁰⁵ "R. v. Wickham, 2025 ONCJ 461 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2025/2025oncj461/2025oncj461.html at para 21, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 35(1), 35(1)(a), 35(1)(b), 35(1)(b)(i), 35(1)(b)(ii), 35(1)(c)(i), 35(1)(c)(ii), 35(1)(d).
²⁰⁶ "R. v. P.B., 2023 ONCJ 498 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2023/2023oncj498/2023oncj498.html at para 23, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 35(1), 35(1)(a), 35(1)(b), 35(1)(b)(i), 35(1)(b)(ii), 35(1)(c)(i), 35(1)(c)(ii), 35(1)(d).
²⁰⁷ "R. v. Green, 2017 ONCJ 705 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2017/2017oncj705/2017oncj705.html at paras 75-78.
²⁰⁸ "R. v. P.B., 2023 ONCJ 498 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2023/2023oncj498/2023oncj498.html at paras 7, 19, 23, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 35(1), 35(1)(a), 35(1)(b), 35(1)(b)(i), 35(1)(b)(ii), 35(1)(c)(i), 35(1)(c)(ii), 35(1)(d).
²⁰⁹ "R. v. Green, 2017 ONCJ 705 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2017/2017oncj705/2017oncj705.html at paras 74-75, 80.
²¹⁰ See, e.g., "R. v. Trudeau, 2017 ONCJ 793 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2017/2017oncj793/2017oncj793.html at para 93.
²¹¹ "R. v. Edowen, 2021 ONSC 2157 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2021/2021onsc2157/2021onsc2157.html at para 30.
²¹² "R. v. Green, 2017 ONCJ 705 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2017/2017oncj705/2017oncj705.html at paras 74-75, 80.
²¹³ "R. v. Trudeau, 2017 ONCJ 793 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2017/2017oncj793/2017oncj793.html at paras 93-96.
²¹⁴ "R. v. Green, 2017 ONCJ 705 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2017/2017oncj705/2017oncj705.html at para 74.
²¹⁵ "R. v. Wickham, 2025 ONCJ 461 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2025/2025oncj461/2025oncj461.html at para 42.
²¹⁶ "R. v. Sabourin, 2025 ONCJ 567 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2025/2025oncj567/2025oncj567.html at para 53.
²¹⁷ "R. v. P.B., 2023 ONCJ 498 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2023/2023oncj498/2023oncj498.html at paras 7, 19-23.
²¹⁸ "R. v. Wickham, 2025 ONCJ 461 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2025/2025oncj461/2025oncj461.html at paras 21-22.
²¹⁹ "R. v. Wickham, 2025 ONCJ 461 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2025/2025oncj461/2025oncj461.html at paras 21-23.
²²⁰ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 50.
²²¹ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 49.
²²² "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 51.
²²³ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 51.
²²⁴ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 2.
²²⁵ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 52.
²²⁶ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 52.
²²⁷ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 54.
²²⁸ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 55.
²²⁹ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 55.
²³⁰ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 53.
²³¹ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 53.
²³² "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 53.

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58. What is the possible punishment for mischief in relation to computer data?

Every person who commits mischief in relation to computer data is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years²³³ or is guilty of an offence punishable on summary conviction.²³⁴ A person who is convicted of an offence punishable on summary conviction is liable to a fine of not more than $5,000 or to a term of imprisonment of not more than two years less a day, or to both.²³⁵

²³³ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(5), 430(5)(a).

²³⁴ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(5), 430(5)(b).

​²³⁵ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 787(1).

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59. What is the possible punishment for mischief in relation to property that is a testamentary instrument or the value of which exceeds five thousand dollars?

Every person who commits mischief in relation to property that is a testamentary instrument or the value of which exceeds five thousand dollars is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years²³⁶ or is guilty of an offence punishable on summary conviction.²³⁷ A person who is convicted of an offence punishable on summary conviction is liable to a fine of not more than $5,000 or to a term of imprisonment of not more than two years less a day, or to both.²³⁸

²³⁶ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(3), 430(3)(a).

²³⁷ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(3), 430(3)(b).

²³⁸ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 787(1).

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60. What is a testamentary instrument, in this context?

A testamentary instrument includes any will, codicil or other testamentary writing or appointment, during the life of the testator whose testamentary disposition the testamentary instrument purports to be and after the testator’s death, whether the testamentary instrument relates to real or personal property or to both.²³⁹

²³⁹ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 2.

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61. What is the possible punishment for mischief in relation to property that is not a testamentary instrument or the value of which does not exceed five thousand dollars?

Every person who commits mischief in relation to property that is not a testamentary instrument and the value of which does not exceed five thousand dollars is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years²⁴⁰ or is guilty of an offence punishable on summary conviction.²⁴¹ A person who is convicted of an offence punishable on summary conviction is liable to a fine of not more than $5,000 or to a term of imprisonment of not more than two years less a day, or to both.²⁴²

²⁴⁰ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(3), 430(4), 430(4)(a).

²⁴¹ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(3), 430(4), 430(4)(b).

²⁴² “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 787(1).

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62. What is the possible punishment for mischief, motivated by bias, prejudice or hate based on colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability, in relation to certain property?

Every person who commits mischief in relation to a building or structure, or part of a building or structure, that is primarily used for religious worship - including a church, mosque, synagogue or temple -, an object associated with religious worship located in or on the grounds of such a building or structure, or a cemetery, a building or structure, or part of a building or structure, that is primarily used by an identifiable group as an educational institution - including a school, daycare centre, college or university -, or an object associated with that institution located in or on the grounds of such a building or structure, a building or structure, or part of a building or structure, that is primarily used by an identifiable group for administrative, social, cultural or sports activities or events - including a town hall, community centre, playground or arena -, or an object associated with such an activity or event located in or on the grounds of such a building or structure, or a building or structure, or part of a building or structure, that is primarily used by an identifiable group as a residence for seniors or an object associated with that residence located in or on the grounds of such a building or structure, if the commission of the mischief is motivated by bias, prejudice or hate based on colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years²⁴³ or is guilty of an offence punishable on summary conviction.²⁴⁴ A person who is convicted of an offence punishable on summary conviction is liable to a fine of not more than $5,000 or to a term of imprisonment of not more than two years less a day, or to both.²⁴⁵

²⁴³ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(4.1), 430(4.1)(a), 430(4.101), 430(4.101)(a), 430(4.101)(b), 430(4.101)(c), 430(4.101)(d).

²⁴⁴ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(4.1), 430(4.1)(b), 430(4.101), 430(4.101)(a), 430(4.101)(b), 430(4.101)(c), 430(4.101)(d).

²⁴⁵ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 787(1).

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63. What is an identifiable group, in this context?

An identifiable group means any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability.²⁴⁶

²⁴⁶ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 318(4), 430(4.101), 430(4.101)(a), 430(4.101)(b), 430(4.101)(c), 430(4.101)(d).

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64. Who bears the burden of proving that an act of mischief is motivated by bias, prejudice or hate based on colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability when an accused is charged with mischief motivated by bias, prejudice or hate based on colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability?

When an accused is charged with mischief motivated by bias, prejudice or hate based on colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability, whether a person does an act of mischief motivated by bias, prejudice or hate based on colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability is for the Crown to prove.²⁴⁷

²⁴⁷ See, e.g., "R. v. Ghaffari, 2017 ONCJ 523 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2017/2017oncj523/2017oncj523.html at paras 1-2.

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65. What is the standard of proof that an act of mischief is motivated by bias, prejudice or hate based on colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability when an accused is charged with mischief motivated by bias, prejudice or hate based on colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability?

When an accused is charged with mischief motivated by bias, prejudice or hate based on colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability, the standard of proof that an act of mischief is motivated by bias, prejudice or hate based on colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability, whether a person does an act of mischief motivated by bias, prejudice or hate based on colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability must be proven beyond a reasonable doubt.²⁴⁸

²⁴⁸ See, e.g., "R. v. Ghaffari, 2017 ONCJ 523 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2017/2017oncj523/2017oncj523.html at paras 1-2.

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66. Can the fact that an act of mischief is motivated by bias, prejudice or hate based on colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability be inferred from the accused’s conduct while engaged in the mischief when the accused is charged with mischief motivated by bias, prejudice or hate based on colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability?

When an accused is charged with mischief motivated by bias, prejudice or hate based on colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability, the fact that an act of mischief is motivated by bias, prejudice or hate based on colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability may be inferred from the accused’s conduct while engaged in the mischief.²⁴⁹

²⁴⁹ See, e.g., "R. v. Ghaffari, 2017 ONCJ 523 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2017/2017oncj523/2017oncj523.html at paras 1-2, 13-15.

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67. What is the possible punishment for mischief in relation to certain property commemorating dead people?

Every person who commits mischief in relation to property that is a building, structure or part thereof that primarily serves as a monument to honour persons who were killed or died as a consequence of a war, including a war memorial or cenotaph, or an object associated with honouring or remembering those persons that is located in or on the grounds of such a building or structure, or a cemetery is guilty of an indictable offence or an offence punishable on summary conviction²⁵⁰ and is liable, whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely, for a first offence, to a fine of not less than $1,000,²⁵¹ for a second offence, to imprisonment for not less than fourteen days,²⁵² and for each subsequent offence, to imprisonment for not less than thirty days;²⁵³ if the offence is prosecuted by indictment, to imprisonment for a term not exceeding ten years;²⁵⁴ and if the offence is punishable on summary conviction, to imprisonment for a term of not more than two years less a day.²⁵⁵ A person who is convicted of an offence punishable on summary conviction is liable to a fine of not more than $5,000 or to a term of imprisonment of not more than two years less a day, or to both.²⁵⁶

²⁵⁰ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 430(4.11).

²⁵¹ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(4.11), 430(4.11)(a), 430(4.11)(b).

²⁵² “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(4.11), 430(4.11)(a), 430(4.11)(a)(ii).

²⁵³ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(4.11), 430(4.11)(a), 430(4.11)(b).

²⁵⁴ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(4.11), 430(4.11)(a), 430(4.11)(c).

²⁵⁵ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 430(4.11).

²⁵⁶ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(4.2), 430(4.2)(a).

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68. What is the possible punishment for mischief in relation to cultural property?

Every person who commits mischief in relation to cultural property is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years²⁵⁷ or is guilty of an offence punishable on summary conviction.²⁵⁸ A person who is convicted of an offence punishable on summary conviction is liable to a fine of not more than $5,000 or to a term of imprisonment of not more than two years less a day, or to both.²⁵⁹

²⁵⁷ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(4.2), 430(4.2)(b).

²⁵⁸ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 430(4.2).

²⁵⁹ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 787(1).

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69. What is cultural property in this context?

Cultural property is movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above; buildings whose main and effective purpose is to preserve or exhibit movable cultural property, such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, movable cultural property; and centres containing a large amount of cultural property.²⁶⁰

²⁶⁰ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 430(4.2), read in context with “Cultural Property Export and Import Act (R.S.C., 1985, c. C-51)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-51/FullText.html at s 2.

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70. What is the possible punishment for mischief that causes actual danger to life?

Every person who commits mischief that causes actual danger to life is guilty of an indictable offence and liable to imprisonment for life.²⁶¹

²⁶¹ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 430(2).

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71. How is mischief that causes actual danger to life defined?

The actual danger to life must be the direct result of the mischief, and not merely incidental to the mischief.²⁶²

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​Determining whether the mischief caused actual danger to life requires considering the case’s facts rather than hypothetical scenarios involving the case’s act or acts of mischief.²⁶³

²⁶² "R. v. Van-Luyk, 2018 ONCJ 528 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2018/2018oncj528/2018oncj528.html at paras 57-58.
²⁶³ "R v. Garcia, 2019 ONSC 5045 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2019/2019onsc5045/2019onsc5045.html at paras 36, 61-68.

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72. Must the accused intend to cause actual danger to life through the mischief for the accused to be convicted of mischief that causes actual danger to life?

In Ontario, there is no requirement that the accused intend to cause actual danger to life through the mischief for the accused to be convicted of mischief that causes actual danger to life.²⁶⁴

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In British Columbia, there is a requirement that the accused intend to cause actual danger to life through the mischief for the accused to be convicted of mischief that causes actual danger to life.²⁶⁵

²⁶⁴ "R v. Garcia, 2019 ONSC 5045 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2019/2019onsc5045/2019onsc5045.html at para 36.
²⁶⁵ For an acknowledgment of this principle, see "R. v. Wheldon, 2014 BCPC 119 (CanLII)" https://www.canlii.org/en/bc/bcpc/doc/2014/2014bcpc119/2014bcpc119.html at paras 11-12.

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73. What happens when an accused, having been charged with mischief that causes actual danger to life, is found not guilty of mischief that causes actual danger to life but guilty of mischief?

In Ontario, an accused who is charged with mischief that causes actual danger to life can be convicted of the included offence of mischief when evidence reveals that the mischief did not cause actual danger to life.²⁶⁶

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In British Columbia, an accused who is charged with mischief that causes actual danger to life can be convicted of the included offence of mischief likely to cause actual danger to life when evidence reveals that the accused committed mischief but did not intend to cause actual danger to life.²⁶⁷

²⁶⁶ "R v. Garcia, 2019 ONSC 5045 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2019/2019onsc5045/2019onsc5045.html at paras 36, 61-68.
²⁶⁷ "R. v. Lee, 2011 BCPC 367 (CanLII)" https://www.canlii.org/en/bc/bcpc/doc/2011/2011bcpc367/2011bcpc367.html at paras 1, 24-28, read in context with "R. v. S. D. D., 2002 NFCA 18 (CanLII)" https://www.canlii.org/en/nl/nlca/doc/2002/2002nfca18/2002nfca18.html at paras 26, 51 and "R. v. K.T., 2005 MBCA 78 (CanLII)" https://www.canlii.org/en/mb/mbca/doc/2005/2005mbca78/2005mbca78.html at para 15.

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74. What is the possible punishment for mischief for an act or omission likely to constitute mischief causing actual danger to life or to constitute mischief in relation to property or computer data?

Every person who is convicted of mischief for wilfully doing an act or wilfully omitting to do an act that it is the person’s duty to do, if that act or omission is likely to constitute mischief causing actual danger to life, or to constitute mischief in relation to property or computer data, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years²⁶⁸ or is guilty of an offence punishable on summary conviction.²⁶⁹ A person who is convicted of an offence punishable on summary conviction is liable to a fine of not more than $5,000 or to a term of imprisonment of not more than two years less a day, or to both.²⁷⁰

²⁶⁸ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(5.1), 430(5.1)(a) , read in context with "R. v. S. D. D., 2002 NFCA 18 (CanLII)" https://www.canlii.org/en/nl/nlca/doc/2002/2002nfca18/2002nfca18.html at paras 26, 51 and "R. v. K.T., 2005 MBCA 78 (CanLII)" https://www.canlii.org/en/mb/mbca/doc/2005/2005mbca78/2005mbca78.html at para 15.
²⁶⁹ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 430(5.1), 430(5.1)(b) , read in context with "R. v. S. D. D., 2002 NFCA 18 (CanLII)" https://www.canlii.org/en/nl/nlca/doc/2002/2002nfca18/2002nfca18.html at paras 26, 51 and "R. v. K.T., 2005 MBCA 78 (CanLII)" https://www.canlii.org/en/mb/mbca/doc/2005/2005mbca78/2005mbca78.html at para 15.

²⁷⁰ “Criminal Code (R.S.C., 1985, c. C-46)” (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 787(1).

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