Identity Theft (s. 402.2, s. 403) Charges in Canada: Offences, Defences, Punishments

What is Identity Theft?

Identity theft and identity fraud are both offences covered under s. 402.2 and s. 403 of the Criminal Code.

Identity theft, under s. 402.2, is when a person possesses another person’s identity information, with the intent of using that identity information in order to commit an indictable offence. These offences are listed below in full but include things like forgery, perjury, credit card theft, and fraud. Identity information refers to anything that is typically used to identify a person or purport to identify them. Items/information such as usernames and passwords, credit card information, SIN, driver’s license number, and signatures are all examples of information that, when possessed with the intent to use for a crime, would qualify as identity theft.

Identity fraud, under s. 403 of the Criminal Code, is one of the offences included under s. 402.2.

Identity fraud occurs when the accused, who is in possession of another (living or dead) person’s information and uses it to impersonate that person in order to gain some kind of advantage from it for themselves or another person, to avoid arrest, or to cause some type of disadvantage to the person whose identity has been stolen.

In terms of differentiating these two offences, identity theft occurs when the identity information is stolen, and police have reason to believe it might be used in the commission of an offence. Therefore, you could be convicted of identity theft for simply possessing the information and intending to use it, even if you have not done so yet. On the other hand, you cannot be convicted of identity fraud unless you have taken an active step in terms of using that information to impersonate another person. Identity fraud requires that the information be used in order to gain some sort of benefit or cause disadvantage to the victim.

Identity theft and identity fraud are both ‘hybrid’ offences, meaning they can be prosecuted summarily or by indictment. Both are serious, but indictable offences tend to be more serious and can carry with them long prison sentences and other criminal consequences.

Examples

Some common examples of identity theft might include:

• Taking someone’s wallet and using their ID to open a bank account in their name
• Finding a credit card on the street and using it to purchase items for yourself
• Stealing documents from a person’s home so that you can use them to forge their signature
• After being involved in a car crash, providing a stolen driver’s license to avoid repercussions
• Providing police with a false name and fake ID to avoid an arrest warrant in your name
• Using your spouse’s credit card without their permission

Defences

Depending on the circumstances of any individual charge, there may be several defences available to a charge of identity theft and/or fraud.

They might include:

• Charter arguments
• Not done in a fraudulent manner
• No fraudulent intent
• Using a pseudonym

Punishment

Identity theft and identity fraud are both hybrid offences in the Criminal Code. This means that, depending on the individual facts and circumstances of each case, the Crown can elect to proceed by summary conviction or by indictment. While both are serious, and carry with them serious consequences upon conviction, summary offences are generally less serious. If the Crown proceeds summarily, the maximum punishment you can face is two years less a day in prison, or a fine of up to $5,000. There are also other possible consequences, such as a criminal record or subsequent court orders.

If the Crown instead chooses to proceed by indictment, the punishments are significantly more serious. For identity theft, you can face a maximum of five years in prison. For identity fraud, you face a maximum of up to ten years in prison. Again, as with summary conviction, you could also be left with a criminal record, which can impact your ability to work, travel, volunteer, or any number of other things.

If you are worried that you could be facing identity theft or fraud charges and want legal advice to know what to do next, the best course of action is to contact an experienced criminal defence lawyer. You can book a free consultation with Strategic Criminal Defence online or over the phone to speak with a lawyer and get free legal advice.

Overview of the Offence

S. 402.2 of the Criminal Code states the following:

Remember that in any criminal prosecution, the Crown bears the burden of proof. This means that it falls to the Crown to prove, beyond a reasonable doubt, that you committed the offence in question. To do so, the Crown must prove the actus reus and mens rea of the offence:

The Guilty Act (Actus Reus)

The actus reus is also known as the guilty act. This refers to the elements of the offence that correspond to actions.

The following make up the actus reus of identity theft:

• The accused obtained and/or possessed the identity information of another person

For identity fraud, the actus reus components are the following:

• The accused impersonated another person or used their information;
• That person was living or dead;

The Guilty Mind (Mens Rea)

The mens rea of an offence, often called the guilty mind, refers to the mental element of the crime, usually meaning the ‘intent’ or ‘motive.’

Identity theft, includes the following components:

• The accused intended (or could be reasonably inferred to have intended) to use the identity information above to commit an indictable offence.
• The indictable offence includes fraud, deceit, or falsehood as an element of the offence

For identity fraud, the mens rea includes the following:

• The impersonation was done in a fraudulent manner;
• The impersonation was done for one of the following reasons:
  • To gain advantage for themselves or another person;
  • Obtain property;
  • Cause disadvantage to the person being impersonated; or
  • Avoid arrest or prosecution.

Defences

There are several defences available to an identity theft or identity fraud charge. Whether or not a particular defence is available will, however, depend on your individual circumstances.

Charter Defences

If any of your Charter rights were breached during your arrest or at any other point during the investigation, an experienced criminal defence lawyer may be able to have evidence against you excluded. The most common breach for an identity theft charge would be a s. 8 breach, your right against unreasonable search and seizure. If police searched you, your home, or your car without justification, you may be able to have that evidence excluded. Contact a defence lawyer to find out more.

No fraudulent intent

This defence might arise in a situation where the police misunderstand the scenario, and arrest you for using someone’s identity or information even though you had it by accident. This would most likely come about if you had a friend/spouse’s ID on your person or in your vehicle, without intending to use it for anything. Perhaps you found a friend’s wallet in your vehicle and they, thinking it had been stolen, reported it to the police. You could argue that you did not intend to use that ID for any fraudulent purpose.

Identity fraud was not done in a fraudulent manner

The identity fraud offence requires that you use the ID in a fraudulent manner in order to be convicted. Depending on the circumstances, you could argue that you were not purporting to be another person for any fraudulent reason.

Using a pseudonym

Importantly, the identity fraud provision states that the person whose identity has been stolen must be living or dead. This means that, for the purposes of identity theft/fraud, using a pseudonym or a fake name is not a crime. This may be relevant depending on the circumstances of your charge.

Punishment

As mentioned above, identity theft and identity fraud are both hybrid offences, meaning it is at the Crown’s discretion as to whether they proceed by summary conviction or by indictment. While both are serious, indictable offences are much more serious and carry with them harsher penalties.

If the Crown proceeds summarily, the maximum penalties you can face are up to two years in prison, and/or a fine of up to $5,000. In contrast, when proceeding by indictment, the punishments become more severe. For identity theft, the maximum becomes five years in prison, while for identity fraud, it becomes ten years. No matter how the Crown proceeds, however, you may face other significant consequences, such as a criminal record. This can impact your ability to work, volunteer, or potentially travel.

The punishment the Crown seeks in any given case will depend heavily on the facts.

Frequently Asked Questions

How do you check if your identity has been stolen?

Becoming aware of identity theft will often depend on the type of information that the thief has stolen. In general, however, you want to remain alert and keep tabs on your information. Keep an eye out for any emails that state a password, or any other account detail has been changed without your knowledge. Many websites and online services will alert you whenever a device has attempted to log in to your account. Additionally, never share your passwords or other account information with other people. Physical identity information, such as a driver’s license or credit card, may be stolen or photocopied so that the thief has all of the information needed. If you think account information may have been stolen, the best course of action will generally be to contact that website’s customer service and follow their recommendations. Make sure you contact them through an official website and/or phone number. If your driver’s license or another piece of ID has been lost or stolen, report it to the police immediately and contact your registry. If your credit card has been stolen, or you have noticed strange transactions on your credit card, contact your bank immediately to put a hold on the card.

How can your identity be stolen?

Your identity can be stolen in any number of different ways. For physical ID, it can be as simple as someone stealing your wallet/purse, but it might also be someone photocopying a credit card or driver’s license to use later. Some thieves use fake ATMs or card readers to steal a credit card’s information. Your online information can be subject to attacks from hackers or data leaks. If a hacker is able to get into one account, it may be easier for them to access others using that account’s information. Thieves employ a wide variety of other tactics to try and trick people into sharing account information, such as posing as customer service or tech support. Again, if something doesn’t feel right, hang up and contact that website/company through an official number.

Can you go to jail for identity theft?

Yes, you absolutely can go to jail for identity theft and identity fraud. Both identity fraud and identity theft are hybrid offences, meaning the Crown can proceed by indictment or summarily depending on the circumstances of the case. In either situation, however, you could face jail as a consequence on conviction. The maximum sentence is five years for identity theft, and ten years for identity fraud. Whether or not you might face jail as a consequence if you have been charged with identity theft/fraud will depend heavily on your individual circumstances. The type of identity information stolen, who the victims were, and/or how serious the intended fraud was.

Published Decisions

R v Gonzales, 2016 BCCA 436 (CanLII)

In this case, a BC man, Mr. Gonzales, pleads guilty to an identity theft charge. Mr. Gonzales was stopped by the police and found to have in his possession numerous identity documents belonging to other people, including debit cards and driver’s licenses. He had also attempted to cash a stolen cheque at this time. He was initially given an eight-month jail sentence, but appealed, seeking a shorter sentence. This case gives us important information on the court’s overall stance on identity fraud, namely that it is treated very seriously. The court states that identity-related offences pose serious risks to the community, and as such, the court will impose harsher sentences so that it can deter future offenders from committing identity-related offences. The courts also weigh criminal records heavily in these offences; if offenders have committed similar offences before, the courts are more likely to impose harsher penalties. The judge did find that the eight-month sentence was suitable in the end, but again because the court goes into detail as to what principles they look for when sentencing, this is an important case.

You can read the full decision here. 

R v Zhu, 2021 ABPC 252 (CanLII)

In this case, Mr. Zhu pleads guilty to a charge of identity theft. The Crown seeks a longer jail sentence of approximately three years, while the defence submits that six months is sufficient. Mr. Zhu was involved in two different schemes involving identity theft, where he claimed income tax returns using stolen information and obtained a total of $760,000. Mr. Zhu repaid the stolen money to CRA, and the court notes that he had been previously convicted of 11 other offences. The court identifies that in this case, the accused took advantage of the honesty of his victims (who believed they were applying for jobs) and the tax system is an aggravating factor. There are a number of mitigating factors present, however, and Mr. Zhu is sentenced to eight months.

You can read the full decision here.

R v Sureskumar, 2021 ONCJ 448 (CanLII)

In this case, an Ontario man, Mr. Sureskumar, was charged with identity theft and other charges related to a wire transfer. The accused worked at the bank in question, and after assisting an elderly customer, allegedly obtained his account information to try and defraud him later. Mr. Sureskumar tried to have some of the evidence against him excluded through a Charter application, but was unsuccessful, as the judge found no breaches of his s. 8 or s. 10(b) rights. Thus, Mr. Sureskumar was convicted of identity theft.

You can read the full decision here.