Mischief vs. Public Mischief, Counselling an offence, and the Parity Principle
This week on Legally Speaking with Michael Mulligan:
There are two kinds of Mischief offences in the Criminal Code: Mischief, and Public Mischief.
Mischief is defined and prohibited by section 430 of the Criminal Code. This section makes it an offence to, amongst other things, damage or destroy property or to interfere with the lawful use, operation or enjoyment of property. This section applies if someone wilfully damages property by, for example, spray painting graffiti on a wall or blocking access to a business.
Public Mischief is an offence pursuant to section 140 of the Criminal Code. This section makes it an offence to make an intentionally false report to the police, causing them to start or continue an investigation.
The Mayor of Surrey was recently charged with Public Mischief for allegedly making a false report that a protester drove her car over his foot.
As discussed on the show, not every criminal trial that results in an acquittal based on a judge disbelieving a complainant produces a corresponding charge of public mischief. This is because of the need to prove a criminal charge beyond a reasonable doubt and this same standard would apply to a charge of public mischief.
Also on the show, a BC Court of Appeal case dealing with the concept of counselling an offence is discussed.
Counselling an offence involves encouraging someone else to commit an offence. If someone counsels an offence, they become a party to the offence even if they did not do anything else in relation to the offence. For example, if someone encourages other people to block access to a business as a protest, they would be guilty of mischief even if they didn’t block the entrance to the business themselves.
The Criminal Code even makes it an offence to counsel an offence that does not take place.
In the case discussed, however, the accused was charged with counselling the offence of uttering a threat. The evidence only established that the accused asked another person to “intimidate” his estranged wife. Because of how the offence was charged, and because intimidation could involve activity other than uttering a threat, the conviction for uttering a threat was overturned on appeal.
Finally, on the show, the Parity Principle is discussed in the context of a sentence appeal.
The Parity Principle of sentencing is codified in section 718.2 (b) of the Criminal Code: “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.
In the case discussed two men who participated in a home invasion-style robbery were sentenced to 5 and 3 years in jail.
The judge who sentenced the men was led to believe that the man who received the 5-year sentence was on bail at the time of the offence and should therefore receive a longer sentence.
The man who received the 3-year jail sentence was, however, serving a community-based sentence at the time of the offence so this was a similarly aggravating circumstance.
The man who received the 5-year sentence was successful in appealing his sentence based on the Parity Principal and had his sentence reduced to 4 years. There were some aggravating circumstances relating to what this man did during the robbery but not enough to justify a sentence that was 2 years longer than for the other man.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am. It’s also available on Apple Podcasts or wherever you get your podcasts.