Guess Who – Identity Fraud.
The offence of identity fraud becomes more and more frequent in modern world and the state devotes a lot of resources in trying to combat it.
Prior to 2010, section 403 of the Criminal Code which deals with identity fraud was called “Personation with Intent”. In January 2010, after amending legislation came into force, this section was renamed “Identity Fraud”, although its contents remained largely unchanged. The maximum punishment for identity fraud is 10 years in jail.
– with intent to gain advantage for the accused or another person;
– with intent to obtain any property or an interest in any property;
– with intent to cause disadvantage to the person being personated or another person;
– with intent to avoid arrest or prosecution or to obstruct, pervert or defeat the course of justice.
According to jurisprudence, “personation” is the act of representing oneself to be someone else. The most common examples of personation are handing to the police officer someone else’s driver license because your own license is suspended or identifying yourself to the police officer with your brother’s name because you cannot be out of your residence pursuant to your bail conditions. This crime, however, can take much more complicated and sinister forms. For instance, one fellow obtained birth certificates of persons who died in infancy, created series of false identities in these persons names and used them to obtain credit cards, student loans, etc. Another case involved personation of several health care workers in order to collect pay cheques in their names. As the use of computers and the internet becomes more common, so is the identity fraud since the information technology provides new avenues for this crime.
So, what if you like some people hate the name your parents gave you and represent yourself by a fictitious name, can you be convicted of identity fraud? The answer at least for now is no. The person personated must be a real one, whether dead or alive, so if you identify yourself as a fictitious character, you are not guilty of s. 403 offence. However, oddly enough, as it often happens in law, while the personated individual must be a real person, there is no requirement for this person to be identified in order to get a conviction. As long as the court is satisfied that John Smith is a real human being, the prosecution does not have to prove beyond a reasonable doubt which particular John Smith you personated.
The amending legislation which came into force in 2010, introduced another twist to s. 403 by providing that an identity fraud charge can be made out through the use of another person’s identity information. In other words, personation can include either making representations of being another person, or using that other person’s identity information as if your own. The 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.
Of course, the act of personation by itself is insufficient for finding of guilt in the court of law. The accused must perform the act of personation fraudulently (or in other words, with intent to deceive, dishonestly) and, in addition, the accused must do so with one of four specific intents listed above. Accordingly, if the defence is able to negate or raise a reasonable doubt regarding the act itself, the fraudulent nature of the act or the specific intent with which the Crown alleges the act was fraudulently committed, the accused is entitled to acquittal.
As a simple example, imagine that you and your older brother both use the same car. While you drive the car, you are stopped by a police officer who requests you to produce driver license, ownership and insurance. You grab a driver license from the glove box and give it to the officer without looking. It turns out to be your brother’s driver license. You have nothing to hide and nothing to gain by passing yourself off as your brother and do not intend to cause any trouble to your brother by doing that. While you need to pay more attention next time around, you certainly should not be found guilty of identity fraud.