public mischief

Public mischief is perhaps the most serious nuisance offence recognized in Canadian criminal law.  Where mischief involves willful damage to property, public mischief damages public institutions and has the potential to seriously damage innocent Canadians. 

Section 140(1) of the Criminal Code of Canada reads:

140 (1) Every one commits public mischief who, with intent to mislead, causes a peace officer to enter on or continue an investigation by

• (a) making a false statement that accuses some other person of having committed an offence;
• (b) doing anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself;
• (c) reporting that an offence has been committed when it has not been committed; or
• (d) reporting or in any other way making it known or causing it to be made known that he or some other person has died when he or that other person has not died.

Public mischief essentially covers circumstances of false reporting of crime to the police. When this occurs, public resources are often committed to the false investigation, which also distracts police from other important responsibilities and community initiatives. Worse, the public mischief might even compromise the innocent public, who could be victimized by the police investigation. 

swatting

Swatting is a very dangerous kind of public mischief that not only wastes public resources and distracts law enforcement from other duties, it places the target of the “swat” in danger and often compromises their home sanctuary. “Swatting” is defined as the action or practice of making a prank call to emergency services in an attempt to bring about the dispatch of a large number of armed police officers to a particular location. 

I recently commented on “swatting” in an article titled: “Better Safe than Sorry not always Safe”. The point of the article was to emphasize that intelligent law enforcement should be extra cautious when acting upon anonymous tips -- especially those that place the public at risk of being invaded, injured or even killed during a police response.

swatting captured on video

home invasion

In many cases swatting triggers a tactical response from the police. That tactical response could include the police conducting an unannounced home invasion into an innocent persons private dwelling house. As the video shows, this type of home invasion could result in the police damaging property and in so doing, frightening innocent persons going about their business in their own sanctuary.  It is not hard to imagine the injury that could occur to a home occupant who, for whatever reason (including not appreciating that it was police invading their home).  There is even the possibility that police members could be injured or killed while conducting unannounced forced entry.  The psychological trauma is obvious. Imagine having the silence of your home shattered by glass, a flash grenade and armed men entering your home in force shouting loud commands. Imagine being physically assaulted by gun toting masked men, who enter your home in force. Imagine being forced face down onto your floor, having your arms twisted behind your back and handcuffed.  

As a criminal defence lawyer in Calgary I have long been critical of unannounced forced entry by police into private dwelling houses. I have long held the view that the default for law enforcement should always be a peaceful response, with violence being used as last resort, not a first resort.  In my view, unless circumstances reasonably require otherwise, the peaceful response by law enforcement should always be “know and announce”.  Perhaps the fact that swatters use police to execute their practical joke underscores the need for restraint on the part of law enforcement before engaging the services of a paramilitary tactical team to invade a home?

Also, swatting shows how serious public mischief can be. If convicted of a public mischief, there is a real possibility of a jail sentence.

defending public mischief

If you have been charged with public mischief, contact an experienced criminal defence lawyer. Defending public mischief often requires holding the Crown strictly to their evidentiary obligations and of course, their onus to prove the case beyond a reasonable doubt. For example, swatting is often committed anonymously. Identification is therefore a powerful defence. False reporting to the police may not have the same identification pitfalls, but there are other ways to defend. For instance, is the statement (the words of the false report) admissible?  Oftentimes the statement is not a false report at all; rather, it is a matter of interpretation. At all times there must not only be the "act" of the offence, but it must be intentional. 

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