Government Bill Would Create New Identity Theft Offences in Canada

Bill C-27, introduced by Justice Minister Nicholson on November 21, 2007, would create new criminal offences for dealing with identity information of other people where the information might be used to commit a crime. It also makes it a crime to possess or sell actual or purported government identity documents, such as health insurance cards. Once enacted, this Bill will take precedence over the much less ambitious Private Member's Bill C-299, which was just passed by the House of Commons on October 16, 2007. Bill C-27 defines "identity information" to include any information "commonly used" to identify individuals, either alone or in combination with other information. This is potentially a very broad definition since it would include, for example, information such as a person's postal code or mother's maiden name that are commonly used by companies when identifying telephone callers. The crime of identity theft would require only obtaining or possessing identity information of another person in circumstances where it can be reasonably inferred that there is an intent to use it to commit an indictable offence, such as fraud. The proposed identity information trafficking offence includes selling, offering to sell, or making available identity information and being at least reckless as to whether it will be used to commit an indictable offence. The "making available" action does not appear to import any intent requirement and so could apply, for example, to information that a company inadvertently makes available on its web site. However, the requirement that the company be reckless as to whether the information will be used to commit an indictable offence, which must be proven beyond a reasonable doubt, will limit its application in cases of inadvertent disclosure. Recklessness is a higher standard than negligence and generally requires that there is a real risk that is appreciated by the offender, who persists despite the risk. This is more likely to apply where there is intentional disclosure or sale of identity information without appropriate safeguards, such as contractual terms circumscribing the use of the information. The Bill also extends the offence of personation, which will now be called "identity fraud", so that personating another person includes any use of that person's identity information. The offence, which carries a maximum sentence of ten years, requires intent on the part of the personator to gain advantage or property or to cause disadvantage to the other person. Both identity theft and trafficking in identity information attract sentences of up to five years. For these offences, and for identity fraud, the Bill provides for restitution, which is intended to cover the reasonable expenses of a victim to re-establish his or her identity, but only in cases where a conditional or absolute discharge is given to the offender. The Bill has been praised by Canada's Privacy Commissioner, who has been calling for this kind of legislation for several years. For the text of Bill C-27, visit: http://tinyurl.com/2lzj5k For related news reports and commentary, see: http://www.cbc.ca/canada/story/2007/11/21/identity-theft.html?ref=rss; and http://tinyurl.com/ypvmcq For a summary of US legislation on identity theft, see: http://www.ncsl.org/programs/lis/privacy/idt-statutes.htm Summary by: Tom Feather