Specialized Prosecutions
Identity Theft Lawyer in Canada
An identity theft lawyer defends charges under Criminal Code, ss. 402.2 (identity theft) and 403 (identity fraud). This page sets out what the offence covers, what the Crown must prove, the penalties on conviction and the defences that are commonly available, then lists criminal defence firms you can contact.
Criminal Code, ss. 402.2 (identity theft) and 403 (identity fraud)·hybrid offence
What Identity Theft covers in Canadian criminal law
Section 402.2 makes it an offence to obtain or possess another person's identity information in circumstances giving rise to a reasonable inference that it is intended to be used to commit an indictable offence involving fraud, deceit or falsehood. The offence is complete at the possession stage; no fraud need have been carried out.
Section 403 addresses identity fraud: fraudulently personating another living or dead person with intent to gain advantage, obtain property, cause disadvantage to the person personated, or avoid arrest or prosecution.
Identity information is defined broadly in section 402.1 and includes names, dates of birth, addresses, social insurance numbers, credit card and account numbers, passwords and biometric data. Prosecutions typically arise alongside fraud, forgery under section 366, and possession of instruments for forging credit cards under section 342.01.
What the Crown must prove
The Crown carries the burden of proving every element beyond a reasonable doubt. A reasonable doubt on any one of them means an acquittal.
- The information was identity information within the meaning of section 402.1
- The accused obtained, possessed, transmitted or trafficked in that information
- Circumstances giving rise to a reasonable inference of intent to use it for a listed indictable offence
- For section 403, fraudulent personation of another living or dead person
- The required intent to gain advantage, obtain property or cause disadvantage
Penalties and consequences on conviction
- A maximum of five years imprisonment on indictment under section 402.2, and ten years under section 403
- Restitution to victims for losses and for the cost of restoring their identity and credit
- A criminal record for dishonesty that is disqualifying for financial sector employment
- Forfeiture of devices, cards and equipment
- Immigration consequences and border inadmissibility
Common defences
- Absence of the reasonable inference of criminal intent, for example where information was held for a legitimate business reason
- No knowledge of the presence of the information on a device or in a vehicle
- Lawful authority or consent of the person whose information was held
- Attribution issues where accounts or devices were shared
- Section 8 Charter challenges to the search of devices, vehicles and premises
- The statutory exemptions in section 402.2(3) for lawful investigative and other legitimate purposes
Identity theft lawyer: frequently asked questions
- Can I be charged if no fraud actually happened?
- Yes. Section 402.2 criminalises obtaining or possessing identity information where the circumstances support a reasonable inference of intent to use it for fraud. The offence is complete before any loss occurs, which is a deliberate feature of the provision.
- Is personating a deceased person an offence?
- Yes. Section 403 expressly covers personating a person who is dead as well as one who is living, provided the required intent is present.
- What is the difference between identity theft and fraud?
- Identity theft under section 402.2 concerns obtaining or possessing the information. Fraud under section 380 concerns the deceit that produces a deprivation. The two are commonly charged together, with the identity offence capturing the preparatory conduct.
Find an identity theft lawyer
Criminal defence firms listed on Criminal Lawyers Canada that identify Identity Theft among their practice areas. Featured listings appear first.
Identity Theft lawyers by province