Hate-Motivated Mischief in Canada: Questions and Answers

Recently, there has been an uptick in discussions about hate-motivated mischief in Canada. This article will answer frequently asked questions about this charge.

Hate-motivated mischief is a type of mischief to property, an offence under section 430(1) of the Criminal Code of Canada.

This provision of the Code prohibits:

• destroying or damaging property;
• rendering property dangerous, useless, inoperative, or ineffective;
• obstructing, interrupting, or interfering with the lawful use, enjoyment or operation of property; or
• obstructing, interrupting, or interfering with any person in the lawful use, enjoyment, or operation of property.

As you may have noticed, this offence includes a broad range of conduct. The most obvious kind of mischief to property is physically damaging something. But it is also an offence to do anything that impairs the use of the property. For example, making a human chain around a store and preventing people from entering might constitute mischief because it prevents the lawful use of that property.

Depending on how much damage you allegedly caused, you will be charged with either mischief under $5,000 or mischief over $5,000.

Section 430(4.1) of the Criminal Code sets out three components of hate-motivated mischief.

First, you must have committed one of the four kinds of mischief to property I explained earlier.

Second, you must have committed the mischief against property primarily used:

• for religious worship;
• by an identifiable group as an educational institution;
• by an identifiable group for administrative, social, cultural, or sports activities or events; or
• by an identifiable group as a residence for seniors.

These four categories capture any associated objects. For instance, damaging desks at a religious school would be the same as damaging the building itself.

Third, the mischief must have been motivated by bias, prejudice or hate against an identifiable group. These groups include people distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability.

The Crown (prosecutor) must prove all three of these components beyond a reasonable doubt. For example, the Crown might prove that you committed mischief at a place of worship. But if the Crown does not prove that you were motivated by bias, prejudice, or hate, you would be guilty only of simple mischief.

Possible defences to hate-motivated mischief include:

• Mistaken identity
• Your conduct didn’t constitute mischief to property.
• You didn’t intend to cause mischief.
• You did not target an identifiable group.
• You did not commit mischief against one of the types of property I noted above.

There is no comprehensive list of defences to hate-motivated mischief, as every case is different.

The possible sentence for hate-motivated mischief spans a wide range, including significant jail time.

Ultimately, sentencing is a very individualized process. If you are found guilty of hate-motivated mischief, the sentence you receive will depend on the unique circumstances of your case.

Most criminal defence lawyers will speak to people charged with criminal offences, such as hate-motivated mischief, at no initial charge. Call (416) 999-8389 now or fill out a consultation request to speak to one of our experienced lawyers who can discuss options, defences, and ways to manage your case.