Identity theft is the offence of obtaining or possessing another person's identity information with the intention to use the information to commit a crime of fraud, deceit, of falsehood. It is also illegal to distribute (or possess with the intent to distribute) identity information knowing, or being reckless to, whether it would be used in these types of crimes. "Identity Theft" is also closely related to the crime of "Identity Fraud" which criminalizes fraudulently pretending to be someone else for certain unlawful purposes.

What is Identity Theft?

Under section 402.2 (1) of the Criminal Code, a person commits the offence of Identity Theft when they obtain or possess another person's identity information with intent to use it to commit an indictable offence that includes fraud, deceit or falsehood as an element of the offence.

In order to prove someone is guilty of Identity Theft, the prosecution (Crown) must first prove that they possess someone else's "identity information." The Criminal Code defines "identity information" as:

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.

Second, the prosecution must prove that the information is being possessed for the purpose of committing an indictable offence involving fraud, deceit, or falsehood as an element of the offence. Indictable offences include any crime where the Crown can proceed by either summary conviction or indictment.

The Criminal Code explicitly states that the intent to commit the following Criminal Code offences can engage the Identity Theft provision:

• Section 57 (forgery of or uttering forged passport);

• Section 58 (fraudulent use of certificate of citizenship);

• Section 130 (personating peace officer);

• Section 131 (perjury);

• Section 342 (theft, forgery, etc., of credit card);

• Section 362 (false pretence or false statement);

• Section 366 (forgery);

• Section 368 (use, trafficking or possession of forged document);

• Section 380 (fraud); and

• Section 403 (identity fraud).

A variety of other indictable offences, ranging from Unauthorized Use of a Computer to False/Misleading Representations under the Competition Act (False Advertising) also involve fraud, deceit, or falsehood as essential elements.

Identity theft is a crime of possession plus intent. While the actual usage of identity information for a crime may be evidence of identity theft (or proof of a variety of other fraud related crimes), it is not an essential element of the offence.

The following acts have been found to be examples of identity theft:

Collecting people's names, dates of birth, addresses and social insurance numbers for the purpose of forging their identity documents, opening bank accounts in their name, and depositing forged cheques in those accounts.

Collecting someone's tax information through a false internet posting and using that to file false tax returns in their name.

Possession of documents including credit cards, driver's licences and bank debit cards in the names of other individuals, in a context that allows for the inference that possession is for fraudulent intent (for example, after presenting forged documents or fake cheques to a bank).

Purchasing stolen credit card numbers and other biographical information to create fake credit cards.

Providing someone else's name and driver's licence to police at a traffic stop.

Similar Offences

Identity Theft is also closely related to a number of other crimes, such as Identity Fraud and Trafficking in Identity Information.

The offence of Trafficking in Identity Information criminalizes various forms of distribution and attempted distribution of identity information while knowing or being reckless to whether it will be used for an indictable an indictable offence that includes fraud, deceit or falsehood as an element of the offence. It shares the same maximum penalties as Identity Theft.

Identity Fraud is the impersonation of another person, living or dead, with the intent to:

(a) gain advantage yourself or someone else;

(b) obtain any property or an interest in property;

(c) cause disadvantage to someone else; or

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

Possible Penalties if Convicted of Identity Theft

Section 402.2 (1)of the Criminal Code is a hybrid offence, meaning the Crown can elect to proceed by summary conviction or by indictment. The potential penalties are as follows:

If the Crown proceeds by summary conviction: the maximum punishment is a fine of not more than $5000 or a term of imprisonment of not more than two years less a day, or both.

If the Crown proceeds by indictment: the maximum punishment is five years imprisonment.

The potential penalties for Identity Fraud under s. 403 (1) of the Criminal Code are:

If the Crown proceeds by summary conviction: the maximum punishment is a fine of not more than $5000 or a term of imprisonment of not more than two years less a day, or both.

If the Crown proceeds by indictment: the maximum punishment is ten years imprisonment.

Defences Available for Identity Theft

As in every case, the defences that may be available to you depend on the specific facts of your case.

The following list includes defences that may be available in an Identity Theft case:

Factual Innocence: If the Crown is unable to prove the following elements beyond a reasonable doubt, they will have failed to discharge their burden:

• the identity of the offender;
• the date and time of the incident and jurisdiction;
• that the accused obtained or possessed another persons' identity information; and
• that the accused intended to use the identity information in their possession to commit an indictable offence that includes fraud, deceit or falsehood as an element of the offence.

Duress: The defence of duress may be invoked when someone commits an offence under compulsion by threats of death or bodily harm. For this defence to apply, the threat and crime must be closely connected in time, and the accused must have no safe avenue of escape.

Necessity: The defence of necessity may be invoked in emergency-type situations. In R v Latimer, 2001 SCC 1, the Supreme Court of Canada set out the three factors that must be present for the defence of necessity to succeed in a case:

• The accused must be in a situation of imminent peril or danger;
• The accused must have had no reasonable legal alternative to breaking the law; and
• The harm inflicted by the accused must be proportional to the harm avoided by the accused.

Violation of Charter Rights: Under the Canadian Charter of Rights and Freedoms, individuals are afforded specific rights, including:

• the right against unreasonable search and seizure;
• the right to not be arbitrarily detained;
• the right to be informed promptly of the reasons for arrest;
• the right to retain and instruct counsel without delay; and
• the right to be tried within a reasonable time.

A successful Charter challenge may also result in a stay of proceedings, or evidence from your case being excluded.

Alternative Outcomes

In some instances, it is possible that your charge(s) may be resolved without going to trial or pleading guilty. The availability of these alternative outcomes depends on a number of factors; each case is fact-specific. The following is a list of examples of alternative outcomes in a criminal case:

Withdrawal of Charge(s): The Crown may decide to withdraw a defendant's charge(s) where:

• The Crown does not believe they have a reasonable prospect of conviction at trial, due to various reasons; or
• It is not in the public interest to prosecute.

Stay of Proceedings: A stay of proceedings effectively stops a legal proceeding in its tracks. There are two types of stays of proceedings, a judicial stay and crown stay of proceedings. A judicial stay is a rarely granted remedy which permanently ends a prosecution (see e.g. Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 at para 83). The Crown may also choice to stay a proceeding. The difference between a Crown stay of proceedings and a withdrawal is that, with a stay of proceedings, the Crown may decide to continue the proceedings at a later date.

Diversion: Diversion (often referred to as "Direct Accountability" or "DAP" ) is an alternative way of resolving charges in the criminal justice system, and provides offenders with an opportunity to take accountability for their actions without incurring a criminal record. Diversion is usually reserved for minor offences and first-time offenders. To successfully complete a diversion program involves some form of upfront work by the defendant, including but not limited to:

• A written apology letter;
• Charitable donation(s);
• Community service/volunteer hours;
• Counselling and/or programming; and
• Restitution/compensation.

Next Steps

The information above provides a general overview of the offence of Identity Theft, as well as potential penalties and defences. However, no two cases are alike. Every criminal case is fact-specific and ranges in complexity, depending on the issues at play.

Charged with Identity Theft?Contact our office today at 416-924-5969 to learn more about how we can help you. Our team of lawyers is prepared to conduct a thorough review of your situation and develop an approach that is tailored to your needs. Obtaining proper legal representation is the first step in preparing a successful defence.