QUICK TAKEAWAY
Identity Theft and Fraud: Section 402.2 (1) of the Criminal Code states that identity theft occurs when you obtain or possess someone else's identity information with the intention of using that to commit theft or fraud, while s.403 (1) of the Code states that identity fraud involves impersonating someone to gain some benefit or to evade justice. Those found guilty of identity theft face up to five years in prison, with that maximum penalty doubled for identity fraud.
Table of Contents:
What is Identity Theft in Canada?
Section 402.2 (1) of the Criminal Code makes it a crime for you to obtain or possess another person's identity information with the intention of using it to commit an indictable offenceIndictable offences are more-serious criminal offences such as fraud or theft. Subsection 2 of that charge makes it an offence for you to sell or offer someone else's identity information, knowing that it may be used for an indictable offence. You can also be charged under this subsection if you are reckless about knowing what the identity information is to be used for. Common examples would be to create documents such as fraudulent passports, certificates of citizenship, credit cards or any other forged documents.
For both Identity theft and for Identity fraud, the Code states that "identity information" can be anything used alone or in combination with other information to identify, or purport to identify, an individual. Examples given include a fingerprint, voice print, DNA profile, digital signature, credit card number, health insurance number or a driver's licence.
What is Identity Fraud in Canada?
Section 403 (1) of the Code makes it an offence to fraudulently impersonate another person, living or dead, in order to gain property or financial benefit. You can also be charged if you impersonate someone with the intention of avoiding arrest or to obstruct the course of justice.
According to information from the Canadian Anti-Fraud Centre, as of July 31, 2021 more than 32,000 Canadians reported they were victims of fraud in 2021, losing $130 million to the crime.
What is Needed to Convict
For a Crown prosecutor to win an identity theft conviction, the court must be satisfied beyond a reasonable doubt that you purposely possessed someone’s personal information with the intention of using it to obtain goods, services, or anything of value.
With identity fraud, the Crown has to prove that you purposely impersonated another person for your own financial benefit or to mislead investigators. With both charges, the Crown must prove that you knew your actions were illegal and they would cause someone else to suffer a monetary loss or deprivation of some variety.
Treated as Hybrid Offences
A hybrid offenceAn offence prosecuted either as a summary conviction or as an indictable offence falls between a summary and an indictable offence.
If you have been charged with identity theft, the Crown can prosecute it as an indictable offence with the maximum penalty of five years in prison. It can also be handled as a summary convictionUsed for lesser offences, with a maximum penalty of two years less a day in jail.
If you have been charged with identity fraud, the maximum penalty is 10 years in prison if it is treated as an indictable offence, or two years less a day in jail if the charge is handled as a summary conviction.
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Matlow, Miller, Cummins, Thrasher LLP
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Glossary of Legal Terms
Hybrid offence
Hybrid offences fall between a summary and an indictable offence. The Crown prosecutor chooses whether to treat the offence as a summary or indictable offence.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
