Identity theft Lawyers in Canada

The Crown is the prosecutor. Section 11(d) of the Canadian Charter of Rights and Freedoms gives a person charged with an offence the right to be presumed innocent until proven guilty according to law, so the Crown is the side that has to prove the charge.

Section 402.1 defines identity information as 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. The section's list includes a fingerprint, a voice print, a DNA profile, a name, an address, a date of birth, a written or electronic signature, a user name, a credit card number, a debit card number, a financial institution account number, a passport number, a Social Insurance Number, a health insurance number, a driver's licence number and a password.

Section 402.2(1) is the identity theft offence. Every person commits it who obtains or possesses another person's identity information with intent to use it to commit an indictable offence that includes fraud, deceit or falsehood as an element of the offence. The section is worded around obtaining or possessing information with an intent. Section 402.2(3) says the indictable offences referred to include offences under several listed sections, among them section 366 (forgery), section 380 (fraud) and section 403 (identity fraud).

Section 402.2(2) is a separate offence, trafficking in identity information. Everyone commits it who transmits, makes available, distributes, sells or offers for sale another person's identity information, or has it in their possession for any of those purposes, knowing that or being reckless as to whether the information will be used to commit an indictable offence that includes fraud, deceit or falsehood as an element of the offence.

Section 403(1) is the identity fraud offence. Everyone commits it who fraudulently personates another person, living or dead, with one of four intents: to gain advantage for themselves or another person; to obtain any property or an interest in any property; to cause disadvantage to the person being personated or another person; or to avoid arrest or prosecution or to obstruct, pervert or defeat the course of justice. Under section 403(2), personating a person includes pretending to be the person or using the person's identity information as if it pertains to the person using it.

Under section 402.2(5), a person who commits an offence under section 402.2(1) or (2) is guilty of an indictable offence and liable to imprisonment for not more than five years, or is guilty of an offence punishable on summary conviction. Under section 403(3), identity fraud is an indictable offence with a maximum of 10 years, or an offence punishable on summary conviction.

For a summary conviction offence, section 787(1) sets a fine of up to $5,000, imprisonment of up to two years less a day, or both, unless the law provides otherwise. Neither section 402.2 nor section 403 sets a minimum term.

A maximum is a limit set in the law. It does not say what sentence a court would give in any case.

The Code also provides for restitution. Under section 738(1)(d), for an offence under section 402.2 or 403, a court may order the offender to pay a person who incurs expenses to re-establish their identity, including expenses to replace identity documents and to correct their credit history and credit rating, an amount not more than those expenses, to the extent that they are reasonable and the amount is readily ascertainable.

A person charged is not required to prove anything. The Crown must prove the parts of the charge described above, including the intent that each section requires. Whether it has done so is for the court to decide on the evidence.

Charter rights apply from the start. Section 10(b) gives everyone on arrest or detention the right to retain and instruct counsel without delay and to be informed of that right. Section 8 gives everyone the right to be secure against unreasonable search or seizure. Under section 24(2), evidence obtained in a manner that infringed Charter rights is excluded if admitting it would bring the administration of justice into disrepute.

Section 11(b) gives a person charged with an offence the right to be tried within a reasonable time. Section 24(1) lets anyone whose Charter rights were infringed apply to a court for a remedy. Whether a right was infringed in a particular case is a question for the court.

In Ontario, every charge under the Criminal Code starts in the Ontario Court of Justice, and about 95% are completed there. The Superior Court of Justice can try any indictable offence but generally tries only the most serious ones.

A person who is arrested may be taken before a justice for a release decision. Under section 515, the justice shall make a release order without conditions unless the prosecutor shows cause why detention in custody is justified or why another order under that section should be made. Section 493.1 says the decision maker gives primary consideration to release at the earliest reasonable opportunity and on the least onerous conditions. Section 11(e) of the Charter protects the right not to be denied reasonable bail without just cause.

Appeals depend on how the case was prosecuted. A summary conviction appeal goes, for a case decided in Ontario, to the Superior Court of Justice sitting in the region, district or county where the case was decided. An appeal from a conviction on indictment goes to the court of appeal. Section 675(1) allows an appeal as of right on a ground that involves a question of law alone. An appeal on a question of fact or of mixed law and fact needs leave, and so does an appeal against sentence.

Legal Aid Ontario may pay for a lawyer if the person qualifies and is charged with a crime that could mean jail on conviction, or is 12 to 17 and charged under the Youth Criminal Justice Act. Duty counsel is a lawyer at the courthouse for that day. Duty counsel can advise on rights, ask to delay a court date, act at a bail hearing, help with a guilty plea, speak at sentencing, and meet the Crown, for people who qualify and have no lawyer.

A legal aid certificate pays a roster lawyer for the length of the criminal case. Applications are online or by phone at 1-800-668-8258. The Law Society of Ontario keeps a public Lawyer and Paralegal Directory where a lawyer's licence can be looked up. This site lists Ontario lawyers by city, and nothing on this page ranks or recommends any of them.