Canadian Criminal Law/Offences/Identity Theft

Legislation

Identity Theft and Identity Fraud
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Identity theft
402.2 (1) Everyone commits an offence who knowingly obtains or possesses another person’s identity information in circumstances giving rise to a reasonable inference that the information is intended to be used to commit an indictable offence that includes fraud, deceit or falsehood as an element of the offence.
Trafficking in identity information
(2) Everyone commits an offence who transmits, makes available, distributes, sells or offers for sale another person’s identity information, or has it in their possession for any of those purposes, knowing that or being reckless as to whether the information will be used to commit an indictable offence that includes fraud, deceit or falsehood as an element of the offence.
Clarification
(3) For the purposes of subsections (1) and (2), an indictable offence referred to in either of those subsections includes an offence under any of the following sections:

(a) section 57 (forgery of or uttering forged passport);

(b) section 58 (fraudulent use of certificate of citizenship);

(c) section 130 (personating peace officer);

(d) section 131 (perjury);

(e) section 342 (theft, forgery, etc., of credit card);

(f) section 362 (false pretence or false statement);

(g) section 366 (forgery);

(h) section 368 (use, trafficking or possession of forged document);

(i) section 380 (fraud); and

(j) section 403 (identity fraud).

Jurisdiction
(4) An accused who is charged with an offence under subsection (1) or (2) may be tried and punished by any court having jurisdiction to try that offence in the place where the offence is alleged to have been committed or in the place where the accused is found, is arrested or is in custody. However, no proceeding in respect of the offence shall be commenced in a province without the consent of the Attorney General of that province if the offence is alleged to have been committed outside that province.
Punishment
(5) Everyone who commits an offence under subsection (1) or (2)

(a) is guilty of an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) is guilty of an offence punishable on summary conviction.

2009, c. 28, s. 10.
Identity fraud
403. (1) Everyone commits an offence who fraudulently personates another person, living or dead,

(a) with intent to gain advantage for themselves or another person;

(b) with intent to obtain any property or an interest in any property;

(c) with intent to cause disadvantage to the person being personated or another person; or

(d) with intent to avoid arrest or prosecution or to obstruct, pervert or defeat the course of justice.

Clarification
(2) For the purposes of subsection (1), personating a person includes pretending to be the person or using the person’s identity information — whether by itself or in combination with identity information pertaining to any person — as if it pertains to the person using it.
Punishment
(3) Everyone who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years; or

(b) is guilty of an offence punishable on summary conviction.

R.S., 1985, c. C-46, s. 403; 1994, c. 44, s. 27; 2009, c. 28, s. 10.

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Proof of the Offence

Sections 402.2 and 403 outline three offences.

In addition to the essential elements of time, location, and identity, the crown should prove the following for each offence:

Identity Theft

1. the accused obtained or possessed another persons' identity information
2. the accused intended to use the information to to commit an indictable offence that includes fraud, deceit or falsehood as an element of the offence.

Trafficking in Identity Information

1. the accused did at least one of the prohibited acts of:
   1. transmitting;
   2. making available;
   3. distributing;
   4. selling; or
   5. offering
2. the subject matter is another persons' identity information
   

or

1. possesses another persons' identity information for the purpose of committing at least one of the prohibited acts above
2. the accused knew or was reckless as to whether it would be used to commit an indictable offence that includes fraud, deceit or falsehood as an element of the offence.

Identity Fraud

1. the accused personated another person
2. the person was either living or dead
3. the personation was in a fraudulent manner
4. the personation was with the intent to do any of the following:
   1. to gain advantage for themselves or another person;
   2. to obtain any property or an interest in any property;
   3. to cause disadvantage to the person being personated or another person; or
   4. to avoid arrest or prosecution or to obstruct, pervert or defeat the course of justice.

Interpretation

Identity Defined

Definition of “identity information”
402.1 For the purposes of sections 402.2 and 403, “identity information” means any information — including biological or physiological information — of a type that is commonly used alone or in combination with other information to identify or purport to identify an individual, including a fingerprint, voice print, retina image, iris image, DNA profile, name, address, date of birth, written signature, electronic signature, digital signature, user name, credit card number, debit card number, financial institution account number, passport number, Social Insurance Number, health insurance number, driver’s licence number or password.
2009, c. 28, s. 10.

– CCC