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What Can You Tell Me About Identity Theft?

Identity theft and identity fraud is captured by the Criminal Code of Canada as being a criminal offence.


Section 402.2 (1) of the Criminal Code states that:

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.

To make out the offence of identity theft, the Crown would have to prove that the accused possessed another person’s personal information, without authorization, with the clear intentions of improperly using the information to commit an illegal act such as deceit or fraud. Such an act constitutes a criminal offence, namely, identity theft under the Criminal Code of Canada.


Definition of Identity Information

For the purposes of the offence of trafficking identity information, here is the definition of the act. 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.

Often, the police have evidence that the accused is in possession of one or more of the following information belonging to another person and without authorization:

  • full name
  • date of birth
  • social insurance numbers
  • full address
  • mother’s maiden name
  • username and password for online services
  • driver’s licence number
  • personal identification numbers (PIN)
  • credit card information (numbers, expiry dates and the last three digits printed on the signature panel)
  • bank account numbers
  • signature
  • passport number


Section 402 (2) of the Criminal Code states that:

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.

(3) For the purposes of subsections (1) and (2), 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).

As you can see, there are a variety of forms in which one can be accused of having committed identity theft.


For the penalty applicable to the offence of identity theft and identity fraud, section 402(5) of the Criminal Code states the following:


(5) Everyone who commits an offence under subsection (1) or (2)

(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.

The penalty imposed following a conviction will depend on if the case was proceeded summarily (less serious) or by indictment (more serious), the latter of which carries jail time.

Book a Free Consultation with Aitken Robertson

If you or someone you know is facing a criminal charge of identity theft or related or similar charges, then consult one of our knowledgeable criminal defence lawyers to learn how we can help. Our firm offers free 30-minute consultations where we hear about your case and offer our legal opinion with respect to your options moving forward.

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