Identity Theft Legislation and Case Law in Alberta and Canada

 Legislation on Identity Theft in Alberta and Canada

Canadian Criminal Code 

  • Identity theft is not an offence, nor is it defined, in the Canadian criminal code. The criminal code does cover many activities associated with identity theft:
    • Section 57 criminalizes passport forgery, utterance of a forged passport and possession of a forged passport.
    • Section 58 criminalizes the fraudulent use of a certificate of citizenship.
    • Section 322 criminalizes theft of personal property.
    • Section 326 criminalizes theft of telecommunication service.
    • Section 327 criminalizes the possession of device to obtain telecommunication facility or service.
    • Section 336 criminalizes breach of trust.
    • Section 342 criminalizes theft, forgery, etc. of credit cards.
    • Section 342.01 criminalizes the sale, purchase, creation, repair, possession, import, and export of any device or thing which is used for forging credit cards.
    • Section 342.1 criminalizes the unauthorized use of a computer.
    • Section 342.2 criminalizes the possession, sale, purchase, purchase, and distribution of devices that can be used to gain unauthorized access to a computer.
    • Section 348 criminalizes breaking and entering.
    • Section 354 criminalizes the possession of property obtained by crime.
    • Section 356 criminalizes mail theft.
    • Section 362 criminalizes false pretences and statements with respect to gaining credit, personal property, loans, money, discounts, or cheques.
    • Section 366 criminalizes forgery.
    • Section 368 criminalizes uttering forged documents.
    • Section 372 criminalizes sending false messages with intent to injure or alarm the receiver.
    • Section 374 criminalizes drawing a document without authority: making, drawing, signing, endorsing, accepting, and executing a document in the name of, or on the account, of another person.
    • Section 375 criminalizes procuring, demanding, delivery, payment, and receiving anything by use of a forged document.
    • Section 376 criminalizes counterfeiting marks: brands, seals, wrappers.
    • Section 380 criminalizes fraud.
    • Section 381 criminalizes using the mail to commit fraud.
    • Section 403 criminalizes personation with intent of any person, living or dead.
    • Section 465 criminalizes conspiracy. It is legal to possess all forms of personal information not belonging to you, except computer passwords and credit card data, which are made illegal under sections 342.1(1)(d) and 342(3), respectively, but only if fraud or lack of justification for possession can be proven.
      • For example, you could, conceivably, be caught with ten false driver’s licences on your person; this is not an offence. It becomes an offence if you use them to drive, or as your own identification (uttering a forged document, fraud and personation).
      • It is legal to sell or transfer all forms of personal information not belonging to you, except computer passwords and credit card data, which, again, are made illegal under sections 342.1(1)(d) 342(3), respectively. If you could, conceivably, acquire the personal information of thousands of individuals without committing a crime (unauthorized use of a computer, theft), you could collect, hand out, and sell this information without committing an offence.

 Alberta Legislation 

  • There is no identity theft specific legislation in Alberta either. There are, however, three pieces of legislation that pertain to identity theft: the Personal Information Protection Act (PIPA), the Fair Trading Act, and the Freedom of Information and Protection of Privacy Act (FOIP).   
  • PIPA  
    • Section 7 requires that consent be given for any personal information collected by private bodies.
    • Sections 11, 16, and 19 limit the collection, use, and disclosure of such information by private bodies.
    • Section 34 requires that private bodies protect any personal information they possess through the use of appropriate security measures. 
  • Fair Trading Act 
    • Section 12 limits the practices of collecting agencies. 
  • FOIP
    • Section 33 outlines the only acceptable purposes for the collection of personal information by a public body.
    • Section 34 outlines the required manner in which personal information must be collected by public bodies.
    • Section 38 requires that public bodies protect any personal information they possess through the use of appropriate security measures.
    • Section 39 outlines the allowable uses of personal information by public bodies.
    • Section 40 outlines the allowable reasons for disclosure of personal information by public bodies.
    • Section 42 outlines the allowable reasons for disclosure of personal information by public bodies for research and statistical uses.
    • Section 43 outlines the conditions for disclosure of personal information in the archives of public bodies.

Criminal Case Law

Because of the absence of a definition for “identity theft” in the criminal code, the cases reviewed deal with activities associated with identity theft: offences committed by individuals who have misappropriated someone else’s identity, but have committed defined crimes such as fraud. 

  • R. v Stewart (1988, SCC) This appeal was to determine whether confidential personal information could be subject to theft under section 283(1) and whether appropriating this information would be fraud under section 338.The appeal was allowed. It was held that “appropriat[ing] confidential information without taking a physical object evidencing it” is not theft under  s. 283(1) of the Criminal Code, nor is appropriating it fraud under s. 338(1).[43] Therefore, unless the appropriated personal information has been used criminally, the possession of it is legal.[44] 
  • R. v. Harris (2004, BCPC) and R. v. McNeil (2006, BCCA) Another case law review singled these cases out to illustrate the legality of such a possession of personal information.  In R. v. Harris, It was recorded that a notebook of Harris’ notebook contained the information for 39 MasterCard accounts not under his name; however, Harris was never convicted, or even charged, with a crime, as he had not yet used the credit card account numbers.[45]  R. v. McNeil,  the accused was in possession of another person’s driver’s licence, health card, address, phone numbers, date of birth, and bank and line of credit balances. McNeil was charged solely with the possession of a homemade mail key. Again, it was because McNeil had yet not used this information to commit any further offences.[46] 

R. v. Stewart, R. v. Harris, and R. v. McNeil show that the collecting phase of identity theft is not addressed in the Criminal Code. An individual is only guilty of an offence if a currently defined crime, such as fraud, has been committed. 

  • R. v. Thiel (2005, ABPC)  During sentencing, the Court described the defendant’s actions as “de facto ‘identity theft’,”[47] which was listed as an aggravating factor. This recognized the actions as in fact being identity theft, but also the absence of a legal definition to call the defendant’s actions as such. (The defendant was guilty of obtaining documents in the victim’s name and using these to commit fraud and impersonate the victim.)
  • R. v. Naqvi (2005, ABPC) The Assistant Chief Judge attributes the rise in ID theft to “the introduction of electronic banking, and Canada’s progress toward a “cashless” society.”[48] That “the offence of credit card and debit card skimming is prevalent and growing in Alberta and Canada, resulting in huge losses to financial institutions; losses that are eventually pass on to their customers,”[49] is considered an aggravating factor in the case, as is that “the offence is difficult to prevent and also difficult to detect and investigate.”[50] 
  • R. v. Bradley (2004, ABCA) The Honourable Judge Daniel states that Mr. Bradley was sentenced for “fraud involving the use of stolen credit cards and identity theft involving the use of forged documents.” It is the only case found that recognizes identity theft as part of the offence. He also articulates that the court’s decision for sentencing length is in part due to the “serious nature of identity theft,”[51] and the appellant’s request to reconsider a shorter sentence was, therefore, dismissed. 
  • R. v. Harris (2004, BCPC) The Court recognizes, that “the Criminal Code, as a reflection of our history, makes [identity theft related offences] some of our more serious offences…they are clearly matters which the criminal law has viewed and does continue to view as serious,”[52] and that this affects considerations of sentencing in these cases.  
  • R. v. Zolis (2007, ABCA) The appellant’s crimes of fraud are considered “a form of identity theft, which constitutes a serious problem in our society,”[53] and, as such, this consideration is listed as an aggravating factor. 

Trends in Criminal Case Law

  • Repeat offenders of fraud, theft, or theft/fraud related crimes.[54]
  • Use of mail theft to appropriate the victim’s identity.[55]
  • Presentation of false identification to law enforcement at the time of arrest.[56]
  • Use of “identity breeding”: whereby a perpetrator obtains some personal       information, and then applies for new or updated identity documents using        this information, in order to procure a full set of personal identification.[57]
  • Consideration of the difficulty in detecting this type of crime as a factor in the case.[58]
  • Tendency for imposed sentences to be mild.[59]
  • Recognition by the judge/Court of the growing incidence and threat of ;identity ;
    • a In R. v. Naqvi the Assistant Chief Judge states that “the Courts are witnessing a huge growth in sophisticated criminal enterprise generally described as identity theft.”[60]
    • b.In R. v. Thiel, records read that the “Court cannot help but notice the astonishing increase in the misappropriation of another’s identity as a facet of this type of criminal activity.”[61] In R. v. Zolis, the Court calls ID theft “a serious problem in our society.”[62]
  • Recognition by the judge/Court of the greater societal impacts of identity theft:
    • a. R. v. McNeil, the sentencing judge noted that identity theft is “the kind of behaviour that…is going to result in the public having a complete lack of faith in its mail system and a complete lack of faith in the validity of the driver’s licensing system and a lack or a lessening of faith by people in  the financial field regarding the validity of documents that we all take for granted…These are crimes that go to the root of how people live in our society...[Identity theft] will lead to a lessening of the whole social fabric  that we all rely on.”[64]
    • b. In R. v. Naqvi, the Assistant Chief Judge documented that skimming results “in huge losses to financial institutions; losses that are eventually passed on to their customers.”[65]
  • The seriousness of identity theft, its prevalence and greater societal impacts, is considered as an aggravating factor, resulting in harsher sentencing and appeal dismissals by the Courts that are attempting to establish deterrence within communities.[66]

 Review of Legislation in Canada and Alberta

It is generally argued that this legislation is not sufficient in coverage or specificity to identity theft as a separate, new crime.[67] There have been two recent attempts to correct legislative shortfalls in the Canadian Criminal Code.

  • Bill C-359, in 2005, proposed amendments to the Criminal Code that would make the possession and transfer of personal information illegal. This bill was never passed.[68]
  • Bill C-299, in 2006, proposed amendments to the Criminal Code that would close loopholes of the existing document to guard individuals against “pretexting,” which is the act of obtaining personal information by impersonation or fraud.[69] It is currently under consideration by the federal government to undertake a full revision of the Canadian Criminal Code to address the loopholes that currently allow criminals to commit certain aspects of identity theft.[70]

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