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Identity theft is defined under subsection 402.2(1) of the Criminal Code of Canada. It involves obtaining or possessing someone else’s identity information with the intent to commit an indictable offence, particularly those involving fraud, deceit, or falsehood as an element of the offence.
"Identity information”, as outlined in section 402.1, includes any information that can be used to identify an individual, alone or in combination with other information. This can include biological or physiological personal details such as fingerprints, DNA profiles, as well as other identifiers like Social Insurance Numbers, passwords, written signatures, and government-issued ID numbers.
The law takes identity theft seriously because it can lead to further criminal acts, including financial fraud or impersonation. Importantly, possession of such information becomes illegal when it is linked to criminal intent, underscoring the gravity of the offence.
Identity fraud, also known as impersonation or personation, occurs when someone fraudulently personates another person, whether living or deceased, with one or more of the following intentions (s. 403.1):
"Personating" under subsection 403(2) means pretending to be another person or using their identity information, either alone or with other data, to falsely claim their identity.
Trafficking in identity information is a distinct offence under subsection 402.2(2) of the Criminal Code of Canada. It refers to the act of sharing or possessing someone else's identity information with the knowledge or recklessness that it will be used to commit fraud or deceit.Specifically, it criminalises:
Like identity theft, trafficking in identity information is a serious crime that carries significant penalties, reflecting the severe potential for harm to individuals and society when such information is misused.
To secure a conviction for identity theft, the prosecution must prove two key elements: (1) that the accused knowingly possessed another person's identity information (2) with the specific intent to use it to commit an indictable offence as defined in section 402.2(3) of the Criminal Code.
Possession of Another Person’s Identity Information
As mentioned above, "identity information" includes personal identifiers such as fingerprints, DNA profiles, Social Insurance Numbers, and credit card details. The prosecution must, therefore, demonstrate that the accused knowingly obtained or possessed this information with the intent to commit an indictable offence involving fraud, deceit, or falsehood, such as fraudulently obtaining credit, goods, services, or other things of value.
Intent to Use
Intent is critical—mere possession of identity information is not enough for a conviction. The Crown must prove that the accused intended to use the information for a criminal act. Additionally, the information must be linked to fraudulent or deceitful activity as defined under section 402.2(3) of the Criminal Code.
Identity theft charges are often paired with fraud-related charges, and using someone else’s identity can increase the severity of the crime, particularly if it causes significant financial harm to the victim.
Defending against identity fraud and theft charges requires thoroughly examining the evidence and intent behind the alleged crime. Several legal defences may be available, including citing factual innocence or challenging the intent, the evidence's sufficiency, or the investigation's legality. Each of these defences can play a critical role in either securing a dismissal or reduction of charges or acquittal.
The Crown must prove every element of the offence beyond a reasonable doubt. Defences could focus on challenging the offender's identity, the date and time of the alleged offence, or whether the accused actually obtained or possessed the other person’s identity information. For example, the accused may argue they were not involved in the alleged offence, perhaps due to mistaken identity, an alibi, or evidence that they never possessed the information in question.
Proving a lack of intent is a key defence in identity fraud and theft cases. The prosecution must show that the accused intended to use the identity information for fraudulent purposes. If the defence can demonstrate that the accused had no such intention—such as possessing the information for lawful reasons or unknowingly, such as finding a lost wallet or using information with authorization—it can lead to a dismissal of charges or acquittal. Since intent is a crucial element of the crime, establishing a lack of intent can significantly weaken the prosecution’s case.
The burden of proof in identity fraud and theft cases lies with the prosecution, who must establish guilt beyond a reasonable doubt. If the evidence is weak, circumstantial, or fails to connect the accused to the crime directly, this defence can be used to challenge the case. The defence may argue that the prosecution has not provided enough concrete evidence to prove intent or possession of identity information for criminal purposes, potentially leading to an acquittal.
Under Canadian law, evidence obtained through an illegal search or seizure can be excluded from a trial. If law enforcement gathered identity information without a proper warrant or violated the accused's Charter rights, the defence can argue that the evidence should be thrown out. A successful Charter challenge can significantly weaken the prosecution’s case, as improperly obtained evidence may lead to a stay of proceedings or an acquittal if it was central to the Crown’s argument.
A lack of knowledge defence argues that the accused was unaware they were in possession of stolen identity information. For the prosecution to secure a conviction, they must prove that the accused knowingly possessed and intended to use the information for fraudulent purposes. If the defence can show that the accused did not know the information was illicitly obtained or had no criminal intent, this can undermine the prosecution’s case and potentially result in a dismissal of charges.
This defence questions whether the information in question qualifies as "identity information" under the Criminal Code. The defence may argue that the data possessed by the accused does not meet the legal definition, which includes items like Social Insurance Numbers, fingerprints, or other identifiers used to establish identity. If the information doesn’t clearly fit this statutory definition, the prosecution may struggle to prove the charge, potentially weakening or dismissing the case.
Identity theft and trafficking in identity information are classified as hybrid offences under Canadian law. This means the Crown can choose to prosecute them either as summary conviction offences or indictable offences based on the severity of the case.
Serious cases, particularly those involving significant financial harm or multiple victims, are more likely to be prosecuted as indictable offences, carrying harsher penalties.
Identity fraud is also a hybrid offence under Canadian law, giving the Crown discretion to proceed by summary conviction or indictment depending on the case’s severity.
Compared to identity theft, identity fraud generally carries harsher penalties, especially when prosecuted as an indictable offence, due to the broader potential for harm and financial damage involved.
Even if you're not convicted in court, being charged with identity theft or fraud can have serious repercussions. A criminal record could make it difficult to find employment, volunteer in your community, or even travel to certain countries.
Certain aggravating factors can lead to more severe penalties for identity theft and fraud charges. These include but are not limited to:
These factors increase the likelihood that the Crown will pursue an indictable offence and seek harsher penalties, as they demonstrate a higher level of harm and intent.
If you are facing identity fraud or identity theft charges, it is crucial to seek legal advice as soon as possible. These charges carry serious consequences including jail time, fines, and a criminal record, and navigating the complexities of the legal system requires the guidance of an experienced criminal defence lawyer.
Don't face these charges alone. At Pyzer Criminal Lawyers, our team is committed to protecting your rights and working tirelessly to achieve the best possible outcome for your case. With extensive experience in defending clients against fraud-related charges, we will explore every legal option available to you and provide a strong, strategic defence.
Identity theft involves the unlawful acquisition of personal information, such as Social Insurance Numbers or credit card details, with the intent to commit a crime. Identity fraud, on the other hand, refers to the actual use of that stolen information to impersonate someone and engage in fraudulent activities, such as accessing financial accounts or obtaining property. Put simply: Identity theft is the act of stealing the information, while identity fraud is the act of using that stolen information to gain a benefit or cause harm.
The Crown decides whether to proceed by summary conviction or indictment based on the seriousness of the case and the circumstances involved. Less severe cases, such as those involving minor harm or fewer victims, are typically prosecuted by summary conviction. Penalties for summary convictions, such as fines, shorter jail terms, or probation, are generally lighter. In contrast, more serious cases, especially where the consequences for society and the victim are greater, where significant financial losses were suffered, or where aggravating factors like planning or targeting vulnerable individuals were present, are more likely to be prosecuted by indictment, leading to harsher penalties.
Yes. While these are serious offences, it's possible for charges to be dismissed or reduced depending on the specific circumstances of your case. If the Crown lacks proof connecting you to the crime, demonstrating intent, or the evidence itself has problems, charges might be dismissed. Your specific circumstances also play a role: Being a first-time offender, having minimal involvement, making restitution to the victim, and cooperating with the police can all work in your favour. Your lawyer can negotiate with the Crown to potentially reduce the charges (e.g., from an indictable offence to a summary conviction) or secure a plea deal for a lesser offence.
