What is mischief? A look at a common charge being levied against Ottawa protesters

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VANCOUVER — Some of the most high-profile organizers of protests against government and COVID-19 mandates in Ottawa are facing charges that include mischief and counselling to commit mischief. What does that actually mean? Here's a look at the significance of mischief charges and the consequences the people charged may face:

WHAT IS A MISCHIEF CHARGE?

A mischief charge under the Criminal Code is extremely flexible, covering a wide range of possible offences from interfering with computer data to mischief endangering life or causing death.

The most common use of mischief in the context of protests relates to interference with someone's rights either to work or access property or tools, said Martin Peters, a Vancouver criminal lawyer.

WHAT IS COUNSELLING TO COMMIT MISCHIEF?

Counselling involves leading or telling someone to commit mischief.

WHAT ARE THE CONSEQUENCES OF CONVICTION?

Kicking a wall could result in a fine, while mischief to a war memorial or blocking significant portions of downtown could see up to 10 years of jail time, Toronto criminal lawyer Karen McArthur said.

In the most severe cases the maximum sentence is life imprisonment, Peters said.

While Peters said counselling to commit mischief should carry similar consequences to mischief itself, McArthur said this case could see prosecutors push for harsher penalties.

The counselling charge could be taken more seriously, as it puts organizers like Tamara Lich and Chris Barber in a leadership role of "an organization that had lots of tentacles," she said.

HOW DOES ONE TYPICALLY ARGUE FOR OR AGAINST A MISCHIEF CHARGE?

The case is typically a four-step process, according to McArthur. First the accused is charged, then the accused asserts his or her charter rights to free expression and peaceful assembly. Then the Crown would argue why those rights don't trump all others and then a judge would make a ruling.

HOW SIGNIFICANT ARE THESE CHARGES?

The very fact of being charged starts a process where a judge can set terms by which individuals are obligated to comply, as has been seen in other protests, Peters said.

"The charges are not that significant. Mischief to property is a pretty low-level crime and carries with it pretty low-level sanctions. But once the police are able to charge, then they are able to arrest and detain," he said. At a bail hearing, a judge can add further stipulations, such as "get out of town," Peters said.

This report by The Canadian Press was first published Feb. 20, 2022.