What are the best defences to a mischief charge?

By Last Updated: July 26, 2022

What are the best defences to a mischief chargeThe best defence to your mischief charge will depend entirely on the specific circumstances of your case. As such, in order to determine the best way to beat your mischief charge, you should contact one of our criminal defence lawyers as soon as possible. We will review all of the evidence that the Crown Prosecutor has against you, and we will be able to effectively determine what defences are available to you and inform you of what options you have going forward. However, some common defences that can be raised when you are facing a mischief charge include arguing that the Crown has not proven identity beyond a reasonable doubt, colour of right, and accident.


Because the Crown needs to prove that it was in fact you who commit the offence before you can be found guilty of mischief, if you can raise a reasonable doubt about the fact that you were the one who commit the crime, you may be acquitted. Identity will often be a live issue in cases where the mischief was committed without any witnesses to the offence, where the witness statements reporting the offence are inconsistent, or where the witnesses that the Crown must rely on to prove your identity do not show up to trial. Sometimes there may not be witnesses or recordings of the offence, and the Crown therefore must rely solely on circumstantial evidence to establish your guilt. If the Crown is relying on only circumstantial evidence to prove your guilt, they will also have the burden of proving that the only inference that can be possibly drawn from the evidence presented at trial is that you are guilty of the offence.

Colour of Right:

Another possible defence to a mischief charge is to show that you thought you were legally permitted to destroy or interfere with the property by colour of right. Colour of right refers to a situation where you honestly and legitimately believed that a particular set of facts were true, when in fact they were not. However, had those facts been true, it would mean that you would not have been guilty of the offence. For example, this will most commonly be the case in situations where you honestly but mistakenly believed that you owned the property, and that you were therefore entitled to do what you wanted with it. If it had been true that the property you damaged or destroyed was wholly yours, you would not have been guilty of committing mischief. However, colour of right will not work as a defence where you believed that you were morally entitled to property, and therefore that it was ‘yours’. In order for the defence of colour of right to work, you need to be able to show that you had a valid reason to believe that you had a legitimate propriety interest in the property in question.


One of the essential elements of mischief that the Crown must prove beyond a reasonable doubt is the mens rea element, or that you actually had an intent to commit the mischief. That is, they have to show that on some level you actually intended the results of your mischief, or that you were reckless as to whether you actions would result in the damage or destruction to property. If you damaged property only by accident, you will not have the guilty mind that is required for you to be found guilty of this offence.

About The Author

Michael Oykhman

Managing Partner

Michael Oykhman is a senior lawyer and founder of Strategic Criminal Defence, a full-service criminal law firm with central law offices across Western Canada and Ontario.

My professional experience consists of countless court appearances and thousands of successful defences and satisfied clients. Over the last 10 years, I have worked to build a law office where all the lawyers share our collective experience, resources, and passion to help people. Our team approach to legal representation is client–rather than only law–centred. We look for opportunities to add value to our clients through strategic thinking and creative solutions.

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