You can use someone else’s identity information in many different ways. Some of these can be perfectly legal such as helping someone fill out a form, but it can also be used in many serious offences, including fraud.
However, can you be charged with identity theft without intending to commit fraud? It is a complex answer but one that we’re going to break down here. Let’s look at identity theft and its relationship to fraud.
Understanding Identity Theft Under Canadian Law
Identity theft is specified under Section 402.2 of the Criminal Code of Canada. It details the crime when a person obtains or possesses another person’s identity with the intent to use it to commit an indictable offence.
While fraud is the most common reason to steal someone’s identity, it’s not the only reason. For example, it may be used for the purposes of money laundering, evading law enforcement, or entering restricted areas.
Due to this, you can be charged with identity theft without intending to commit fraud. However, you can’t be charged with identity theft without intending to commit a crime. It’s a small but important distinction. Put another way, if charged with identity theft, the Crown thinks you had intent to commit a crime, just not necessarily fraud.
Key Elements of Identity Theft
We’ve established that fraud is not completely intertwined with fraud but what are the key elements that constitute identity theft? Let’s take a look:
Unauthorized Possession or Use of Identity Information – This can include stealing someone’s identity but also using it in a way that wasn’t authorized by the ID holder.
Knowledge – The accused must know their actions are illegal and cause someone else to suffer a loss.
Intent – As stated, there needs to be an intent to commit an indictable act.
Situations Where Having Another Identity Isn’t a Crime
There are several occasions when you may have someone else’s identity for legitimate reasons. If facing a potential charge for identity theft, one of these scenarios may be key to your defence. It’s important to have a good reason for having the data or physical ID you have.
One situation is simply due to an error. For example, an administrative error could mean that you have been sent someone else’s passport, or you were handed someone else’s ID as you have a similar name. It could also be that you found the ID and are looking to find the owner.
Other situations can be that you are trying to help others. For example, you are trying to set up insurance for a parent with their permission, or perhaps you’re holding on to someone’s documents for safekeeping.
There are other innocent reasons too such as keeping a deceased loved one’s passport as a keepsake, having someone’s ID as part of your job duties, using ID for research purposes, or you are a legal guardian.
Defending Against Identity Theft Charges
If you have been charged with identity theft, the news that it doesn’t automatically require an intent to commit fraud may have been a blow. However, there are several ways to defend against these charges.
Proving Lack of Knowledge – Your white-collar crime lawyer may argue you were either unaware you possessed someone else’s identity or that it was accidental. For example, you could have been handed a folder, unaware of its contents.
Demonstrating Legitimate Purpose – You could have a legitimate reason for having another person’s identity. As we’ve looked at above, simply having the identity of someone else is not a crime.
Challenging Evidence – The Crown will have to prove that you possessed identity information without authorization and do so beyond a reasonable doubt. Your lawyer can challenge any evidence presented and the legitimacy of it.
Absence of Criminal Intent – The Crown will also have to prove you had criminal intent, which can be difficult without any crime being committed. Arguing you had the identity for non-malicious reasons can be a strong defence.
Related Article: https://www.agpllp.ca/the-role-of-a-white-collar-crime-lawyer-in-fraud-cases/
Steps to Protect Yourself
It may be that you’re reading this as you have someone else’s data and are worried about committing an offence. If so, here are some steps to protect yourself.
Alert Immediately – If you have obtained personal information without authorization, alert someone immediately. This can be as simple as posting on a social media platform if someone has lost an ID, or as serious as contacting the police if you have potentially incriminating information.
Be Cautious – Don’t handle or store someone else’s identity data unless it is part of your job, or you have authorization to do so. If you have authorization, it’s best to have evidence of this.
Understand Legal Responsibilities – If you work with sensitive data, make sure you’re fully up-to-date on privacy laws and best practices.
Seek Permission – If someone else has asked you to access or use their identity information, make sure you get clear consent. If a family member for example, asking you to help over a text message would be good enough.
Dispose of Data Securely – If you no longer need the identity information, make sure it is deleted or destroyed.
Final Thoughts
Identity theft and fraud are closely linked but not completely intertwined. Can you be charged with identity theft without intending to commit fraud? As we’ve seen, while the long answer may be complex, the short answer is yes.
It’s important to understand the law and the potential defences you may need. If you need an experienced lawyer, contact AGP LLP today. We’ll be happy to look at your case and assist you with the next steps forward.
