Technical Corner

January 2022

One of the primary goals of the ORFA is to improve the public level of respect for all recreation facilities. In 2021, the ORFA Board of Directors adopted the following definition, “A recreation facility is any land, premise, location or thing at, or upon which offers a recreation or leisure experience for all”.

What happened to the Terry Fox monument in Ottawa this past weekend as part of the National Trucker Freedom protest may be defined as vandalism. Some will try and explain it away as being harmless, with no long-term impact or real costs to correct. However, the Criminal Code of Canada has a different viewpoint as it defines vandalism as any act that:

(a) destroys or damages property; (b) renders property dangerous, useless, inoperative. or ineffective; (c) obstructs, interrupts, or interferes with the lawful use, enjoyment, or operation of property; or. (d) obstructs, interrupts, or interferes with any person in the lawful use, enjoyment, or operation of property.

So, the question becomes was what happened to the monument a crime?

Under the Criminal Code of Canada, a person may be charged with criminal mischief based on vandalism if he or she destroys property that belongs to another or otherwise alters the property in some way. In order for it to be a criminal offence, the property alterations must be deliberate.

In Canada, mischief is a criminal offence that refers to the will-full or reckless destruction of another person’s property, or the interference with another person’s property. Mischief is often the charge that will be laid following an act of vandalism. While the term ‘mischief’ might make it seem as though the offence is not a grave one, this is not the case. Mischief is a serious criminal offence in Canada, and if unsuccessfully defended, will lead to a criminal record, fines, probation, and sometimes even time spent in prison. There are four instances where a person will be guilty of committing criminal mischief:

1. When they have willfully or intentionally destroyed or damaged someone else’s property.
2. When they have rendered property dangerous, useless, inoperative, or ineffective.
3. When they have obstructed or interfered with the lawful use of someone else’s property.
4. When they have obstructed or interfered with any person in the lawful use, enjoyment, or operation of property.

In order to prove that a person is guilty of mischief, the Crown Prosecutor will need to prove that:

1. Who committed the offence.
2. That they did not own the property that was interfered with or destroyed.
3. The state of the property prior to the offence.
4. That there was real damage was done to the property, or that you interfered with the property in some real way.

The incident this same past weekend in Ottawa involving the “unknown soldiers” final resting place takes on additional legal implications.

Mischief relating to war memorials

(4.11) Everyone who commits mischief in relation to property that is a building, structure or part thereof that primarily serves as a monument to honour persons who were killed or died as a consequence of a war, including a war memorial or cenotaph, or an object associated with honouring or remembering those persons that is located in or on the grounds of such a building or structure, or a cemetery is guilty of an indictable offence or an offence punishable on summary conviction and is liable, whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment for a first offence, to a fine of not less than $1,000

Should these incidents get to the courts, most likely they will focus on raising awareness of the repercussions of this type of action to any public monument or memorial. The Terry Fox Foundation announced that they were disappointed in the actions but rather than respond negatively, they have used the event to reinforce the Foundations mandate and reintroduce “Terry’s” original vision and goals – they embraced a teachable moment. Building on this approach, the real lesson that the ORFA will embrace from this past weekend of protest is the importance of respecting all recreation infrastructure.

The ORFA explores this topic in our Legal Awareness II: Managing in a Recreation Environment course which is considered essential education for all senior facility management staff. 

Comments and/or Questions may be directed to Terry Piche, CRFP, CIT and Technical Director, Ontario Recreation Facilities Association