Criminal Cruft #2: Mischief

Common Mischief

The offence of "mischief" is overbroad but Parliament has managed to also make it overcomplicated. Judging by its name you would think it would be a law against the shenanigans of Saturday-morning cartoon villains, but the reality is much less interesting. (There is also an offence for "public mischief" which is equally dry but not what I want to talk about here.)

The law against mischief is found at section 430 (1) of the Criminal Code. It covers destruction of property, damage to property, rendering property dangerous, rendering property unusable, interference with the use of property, and interference with the enjoyment of property. That is supposed to be a succinct paraphrase of the offence and it still drags on. You could be excused for thinking that it covers all the mischief a criminal could possibly do to property, but that doesn't stop the Code from having another 3 mischief offences.


Mischief Against Data

The first of these is mischief against data. "Data" is defined as any information or concept that is usable by a computer. I assume this extra section exists because intangibles like computer data are not necessarily included in the legal concept of "property". That is a stretch since property usually includes intellectual and other intangible property nowadays. However, even if that were not the case and someone managed to corrupt your porn collection, the police could still charge that guy with: 1) interfering with the use; 2) interfering with the enjoyment; or 3) interfering with the operation of the property known as "your computer," all three of which are recognized versions of common mischief.


Mischief Against Religious Property

The other two superfluous mischief offences are mischief against religious property and mischief against cultural property.

Mischief relating to religious property occurs if someone motivated by hatred towards a religion, race, or origin commits mischief against a church, mosque, synagogue, or other building primarily used for religious worship. So if you try to distract someone in church by tapping on the glass because you hate them because they are from Norway then that is a different offence then tapping on the glass to distract them because you hate them because those Norwegians happen to be jerks.

Apparently the laws against mischief and hate propaganda are not enough to deal with mischief that is a hate crime so we need another law. That way the police can charge you with all three! (Plus they will probably want to throw in charges for criminal harassment while they are at it.) Meanwhile, one of the sentencing principles in section 718.2 of the Criminal Code already directs judges to take any evidence that a crime was motivated by hate into consideration, but don't rely on that because a judge is paid a quarter of a million dollars each year not to exercise her discretion.


Mischief Against Cultural Property

To know what mischief against cultural property is you have to look at the definition of cultural property. It is not found in the Canadian Criminal Code but instead it is in Article 1 of the "Convention for the Protection of Cultural Property in the Event of Armed Conflict" signed at The Hague on May 14, 1954. The definition turns out to be very extensive with everything from monuments to books covered, but the key part is that the object or building must be "of great importance to the cultural heritage of every people."

Now, I complained earlier that the definition of mischief is overbroad, but the standard for property to qualify as "cultural property" has to be too stringent. What piece of Canadian property has great importance to the cultural heritage of every people? I mean, Niagara Falls is nice but I don't think the Mongolians, the Hutus, or the Incas would say it is of great importance to any of their cultures.

Because of this overreaching definition of cultural property, this subsection of the Criminal Code is effectively useless. I did a quick search on CanLII for cases containing the strings "mischief" and "cultural property" but none of the cases it turned up were about the offence, so I can only assume that this charge is never laid.

In conclusion, the government could cut out the laws against mischief targeting religious and cultural property without losing anything except verbiage. I would recommend cutting out the offence for mischief against data as well after making it clear that property includes electronic property like health records. The Crown will still have the expansive definition of common mischief to fall back on.