Identity Fraud (Offence)

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Identity Fraud
s. 403 of the Crim. Code
Election / Plea
Crown Election	Hybrid summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction	Prov. Court Sup. Court w/ Jury (*) Sup. Court w/ Judge-alone (*) * Must be indictable.
Summary Dispositions
Avail. Disp.	Discharge (730) Suspended Sentence (731(1)(a)) Fine (734) Fine + Probation (731(1)(b)) Jail (718.3, 787) Jail + Probation (731(1)(b)) Jail + Fine (734) Conditional Sentence (742.1)
Minimum	None
Maximum	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp.	same as summary
Minimum	None
Maximum	10 years incarceration
Reference
Offence Elements Sentence Digests

Overview

Offences relating to identity fraud are found in Part X of the Criminal Code relating to "Fraudulent Transactions Relating to Contracts and Trade".

Pleadings

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)	Preliminary Inquiry
s. 403 [identity fraud]	Hybrid Offence(s)	Yes	(* only if Crown proceeds by Indictment)	(under 14 years max)

Offences under s. 403 [identity fraud] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By a Judge or Justice on a Release Order s. 515 to 519	Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act
s. 403 [identity fraud]

When charged under s. 403 [identity fraud] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

• while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
• "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
• where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
• where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

And, regardless of Crown election, if the offence alleged was one:

• where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
• where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
• where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 403 [[identity fraud]

Offences under s. 403 [identity fraud] are designated offences eligible for wiretap under s. 183.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

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) [identity fraud], 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) [identity fraud]

(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.
[annotation(s) added]

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Draft Form of Charges

		Pre-ambles
		"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section	Subject of Offence	Draft Wording
		"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving identity fraud under s. 403(1) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit personated another person, including "pretending to be the person or using the person’s identity information" ☐ the other person was either living or dead ☐ the personation was in a "fraudulent" manner ☐ the personation was with the intent to do any of the following: ☐ to "gain advantage for themselves or another person"; ☐ to "obtain any property or an interest in any property"; ☐ to "cause disadvantage to the person being personated or another person"; or ☐ to "avoid arrest or prosecution or to obstruct, pervert or defeat the course of justice."

Interpretation of the Offence

Purpose

The purpose of the offence is "to prevent individuals from assuming the identity of someone else with the intention of gaining an advantage which the individual would not otherwise be enabled to obtain."

Fictitious Identities

This offence does not include impersonations that involve the use of fictious identities.

"Fraudulently"

The word "fraudulently" refers to dishonest or morally wrong conduct.

Advantage

The meaning of "advantage" is broad. It can include simply benefiting from the ability to disguise one's past. It is not limited to financial benefit.

Disadvantage

Personating other people online to engage in inappropriate or illegal acts is likely to the "disadvantage" of the person impersonated.

It can include avoidance of arrest, escape from detection

Identity Information

Definition of “identity information”

402.1 For the purposes of sections 402.2 [identity theft] and 403 [identity fraud], “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.

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Participation of Third Parties

Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Offence(s)	Victim Notice of Agreement s. 606(4.1) [SPIO]	Victim Queried for Interest in Agreement s. 606(4.2) [5+ years]	Victim Notice for Restitution s. 737.1	Victim Notice of Impact Statement s. 722(2)
s. 403 [identity fraud]

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 403), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

Maximum Penalties

Offence(s)	Crown Election	Maximum Penalty
s. 403 [identity fraud]	summary election	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 403 [identity fraud]	indictable election	10 years incarceration

Offences under s. 403 [identity fraud] are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

Minimum Penalties

These offences have no mandatory minimum penalties.

Available dispositions

Offence(s)	Crown Election	Discharge s. 730	Suspended Sentence s. 731(1)(a)	Stand-alone Fine s. 731(1)(b)	Custody s. 718.3, 787	Custody and Probation s. 731(1)(b)	Custody and Fine s. 734	Conditional Sentence (CSO) s. 742.1
s. 403 [identity fraud]	any

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Ancillary Sentencing Orders

Offence-related Orders

Order	Conviction	Description
DNA Orders	s. 403 [identity fraud]	If an offence under s. 403 is prosecuted by indictment, a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).

General Sentencing Orders

Order	Conviction	Description
Non-communication order while offender in custody (s. 743.21)	any	The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738)	any	A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737)	any	A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

General Forfeiture Orders

Forfeiture	Conviction	Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))	any	Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences.
Fine in Lieu of Forfeiture (s. 462.37(3))	any	Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491)	any	Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1)	any	Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.

Record Suspensions and Pardons

Convictions under s. 403 [identity fraud] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

1994 to 2009

Personation with intent

403. Every one who fraudulently personates any person, living or dead,

(a) with intent to gain advantage for himself or another person,

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

(c) with intent to cause disadvantage to the person whom he personates or another person,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction.
R.S., 1985, c. C-46, s. 403; 1994, c. 44, s. 27.

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See Also

• Identity Theft (Offence)
• Personating a Peace Officer (Offence)

References

• Pre-Trial and Trial Motions Checklist