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Partner A and Partner B are sitting on the couch watching tv, each of their respective iPhones nearby. One of the screens briefly lights up and a suspicious dm can briefly be read. Allegations of infidelity fly. There is a struggle for the impugned iPhone. The iPhone gets grabbed and thrown against the ground, smashing the screen. Some pushing, wrestling, shoving, screaming ensue. Police are called. The police size up the situation and believe that Partner A has committed the criminal offence of mischief under $5,000 (and possibly more). Partner A gets cuffed, taken to the station, and held overnight for a bail hearing. The iPhone lock screen, despite its many conveniences, has once again led to criminal charges and divorce here in Ontario.
In a domestic relationship context, there is the so-called Triple Crown of common criminal offences: Mischief Under $5,000, Uttering Threats, and Assault. All three offences naturally flow from jealousy and momentary fits of anger, which in a domestic context, are certainly common whether you live in Windsor, Newmarket, Toronto or Ottawa.
The consequences of being convicted of Mischief Under $5,000 can be serious, but even just being charged with Mischief Under $5,000 can have significant implications. For example, if you are charged with Mischief Under $5,000 in relation to your domestic partner, you could be ordered by the court to:
Vacate the family home;
Not communicate in any way with your partner;
Stay a certain distance away from a number of locations, including the family home or anywhere your partner is known to frequent (e.g., work, school, place of worship);
Communicate with your children only through family court order or mutually agreeable third party;
Any other condition required to ensure you attend court and do not pose a risk to the public
Of course, if you are ultimately found guilty, you could end up with a criminal record and be subject to similar court conditions for anywhere from 6-36 months. Even if your charges are withdrawn, you could still be subject further court conditions for 6-12 months through a peace bond.
All of this is to illustrate that even “less serious” charges can have a major disruption on your life.
So what does it actually mean to commit mischief?
The Act of Mischief
Section 430 (1) of the Criminal Code generally lays out two general types of actions that can constitute the offence of mischief – i) actions that can broadly be described as damaging or affecting the physical state of property, or ii) actions that interfere with the lawful use of property by another person or persons. Someone thus commits mischief if he or she:
destroys or damages property
renders property dangerous, useless, inoperative or ineffective;
obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.
The Criminal Intent
Mischief is a general intent offence, meaning the Crown must only prove that an individual voluntarily committed the act that led to the damage (not necessarily the actual outcome).
So, returning to our example, if Partner A whips Partner B’s iPhone against the wall in a fit of rage and breaks the screen, it doesn’t matter if Partner A did not think it would break because it had a screen protector.
If the iPhone smash is ultimately the straw that breaks the camel’s back in your marriage, it goes without say that there will also be major emotional, financial, and lifestyle implications for both you and your partner.
In either criminal or family law scenario above, you need to consult with a lawyer at the earliest opportunity. I practice both criminal and family law. You are welcome to contact me to discuss your situation further.
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