Identity Theft (Offence)

Identity Theft
	s. 402.2 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	5 years incarceration
Reference
	Offence Elements; Sentence Digests;

< Criminal Law/Sentencing
< Offences

Overview

Offences relating to identity theft 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. 402.2(1) [identity theft] and s. 402.2(2) [trafficking in identity information]	Hybrid Offence(s)		(* only if Crown proceeds by Indictment)	(under 14 years max)

Offences under s. 402.2 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

When charged under s. 402.2, 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. 402.2(1) [identity theft] and s. 402.2(2) [trafficking in identity information]

Offences under s. 402.2 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 Theft and Identity Fraud

...

Identity theft

402.‍2 (1) Every person commits an offence who obtains or possesses 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.

Trafficking in identity information

(2) Everyone commits an offence who transmits, makes available, distributes, sells or offers for sale another person’s identity information, or has it in their possession for any of those purposes, knowing that or being reckless as to whether the information will be used to commit an indictable offence that includes fraud, deceit or falsehood as an element of the offence.

Clarification

(3) For the purposes of subsections (1) [identity theft] and (2) [trafficking in identity information], an indictable offence referred to in either of those subsections includes an offence under any of the following sections:

(a) section 57 (forgery of or uttering forged passport);

(b) section 58 (fraudulent use of certificate of citizenship);

(c) section 130 (personating peace officer);

(d) section 131 (perjury);

(e) section 342 (theft, forgery, etc., of credit card);

(f) section 362 (false pretence or false statement);

(g) section 366 (forgery);

(h) section 368 (use, trafficking or possession of forged document);

(i) section 380 (fraud); and

(j) section 403 (identity fraud).

Jurisdiction

(4) An accused who is charged with an offence under subsection (1) [identity theft] or (2) [trafficking in identity information] may be tried and punished by any court having jurisdiction to try that offence in the place where the offence is alleged to have been committed or in the place where the accused is found, is arrested or is in custody. However, no proceeding in respect of the offence shall be commenced in a province without the consent of the Attorney General of that province if the offence is alleged to have been committed outside that province.

Punishment

(5) Everyone who commits an offence under subsection (1) [identity theft] or (2) [trafficking in identity information]

(a) is guilty of an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) is guilty of an offence punishable on summary conviction.

2009, c. 28, s. 10; 2018, c. 29, s. 45.
[annotation(s) added]

– CCC

Proof of the Offence

Sections 402.2 outlines two offences.

Proving Identity Theft under s. 402.2(1) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit obtained or possessed another persons' identity information; ☐ the circumstances of the act give rise "to a reasonable inference that the information [was] intended to be used to commit an indictable offence that includes fraud, deceit or falsehood as an element of the offence" ☐ the culprit was aware of the circumstances that give rise to the inference. ☐ the indictable offence was one or more of the following: ☐ 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).	Proving Trafficking in Identity Information under s. 402.2(2) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit did at least one of the prohibited acts in relation to a thing: ☐ transmitted; ☐ made available; ☐ distributed; ☐ sold; or ☐ offered ☐ if none of the prohibited acts apply, possession of the thing "for any of those purposes"; ☐ the thing was another person's identity information; ☐ the culprit was aware or "reckless" as to "whether the information will be used to commit an indictable offence" ☐ the indictable offence was one or more of the following: ☐ 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).

Interpretation of the Offence

Identity Defined

Definition of “identity information”

402.1 For the purposes of sections 402.2 and 403, “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.

– CCC

"Personation"

A person does not commit the offence of "personation" merely by adopting a false identity or the use of a pseudonym.^[1] The offence requires a fraudulent purpose.^[2]

The person being assumed should be real, either alive or dead, and not simply a fictitious creation.^[3] The accused must be shown to have attempted to take on the identity of the person, and not simply use a name of a person living or dead.^[4] Often this can be proven by inference.^[5]

↑ R v Northrup, (1982), 1 CCC (3d) 210 (NBCA), 1982 CanLII 3710 (NB CA), per Angers JA
R v Jahanrakhshan, 2013 BCCA 196 (CanLII), per Groberman JA, at para 24
↑ Northrup, supra, cited positively by R v Hall (1984), 12 CCC (3d) 93, 1984 CanLII 3573 (ON CA), per Martin JA
↑ Jahanrakhshan, supra, at para 25
↑ Jahanrakhshan, supra, at para 28 citing R v Westerdahl, (1988), 82 N.S.R. (2d) 178 (NSCA)(*no CanLII links)
↑ Jahanrakhshan, supra , at para 29

"Transmits, Makes Available, etc"

See Definition of Terms Relating to Transactions and Transferences

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

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

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 402.2), 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

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Sentencing Profile

Maximum Penalties

Offence(s)	Crown Election	Maximum Penalty
s. 402.2	Summary Election	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 402.2	Indictable Election	5 years custody

Offences under s. 402.2 are hybrid. If prosecuted by indictment, the maximum penalty is 5 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. 402.2(1) [identity theft] and s. 402.2(2) [trafficking in identity information]	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

See also: Ancillary Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 402.2 [identity theft and trafficking in ID info]	If an offence under s. 402.2 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. 402.2 [identity theft and trafficking in ID info] 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".