I’ve been charged with Mischief Under $5,000. What do I need to know?

4. Figure out if you have a defence

You can defend yourself in a criminal by showing:

  • the Crown has not proven all of the elements of the crime
  • your situation fits into a legal defence in the Criminal Code
  • your Charter rights were violated

For a of Mischief Under, you may also have a defence if:

  • You thought you had a right to use the property in this way. For example, if you painted a fence near the boundary of your land thinking it was your fence, but it turns out that the fence is actually on your neighbour’s side of the property line.
  • The property was already damaged, and you didn’t damage it more.

Think about what you can use to present your defence. Evidence might include:

  • documents, such as receipts
  • photos or videos
  • witnesses who saw the incident or who know about the property and its owner
  • telling your version of the story in court

Charter violations

The Charter of Rights and Freedoms says that you have certain rights when you’re dealing with government. The government includes the police, the Crown, and the courts. For example, the police must:

    • not search you in an unreasonable way
    • not use excessive force against you
    • not or you without a good reason
    • help you contact a lawyer if want one
    • explain why you’re detained or arrested

If any of your Charter rights are violated, the judge can throw out certain evidence in your case. In some situations, the judge may even dismiss your charges completely, for example, if it takes too long to give you a trial.

It can be legally complicated to discover Charter violations and know how to present them in court. It’s best to talk to a lawyer before your trial to find out if there are Charter issues and how to deal with them.

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