Bill S-4

2nd Session, 40th Parliament,

57-58 Elizabeth II, 2009

senate of canada

BILL S-4

An Act to amend the Criminal Code (identity theft and related misconduct)

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

CRIMINAL CODE

1. The heading before section 57 of the Criminal Code is replaced by the following:

Official Documents

56.1 (1) Every person commits an offence who, without lawful excuse, procures to be made, possesses, transfers, sells or offers for sale an identity document that relates or purports to relate, in whole or in part, to another person.

(2) For greater certainty, subsection (1) does not prohibit an act that is carried out

(a) in good faith, in the ordinary course of the person’s business or employment or in the exercise of the duties of their office;

(b) for genealogical purposes;

(c) with the consent of the person to whom the identity document relates or of a person authorized to consent on behalf of the person to whom the document relates, or of the entity that issued the identity document; or

(d) for a legitimate purpose related to the administration of justice.

(3) For the purposes of this section, “identity document” means a Social Insurance Number card, a driver’s licence, a health insurance card, a birth certificate, a death certificate, a passport as defined in subsection 57(5), a document that simplifies the process of entry into Canada, a certificate of citizenship, a document indicating immigration status in Canada, a certificate of Indian status or an employee identity card that bears the employee’s photograph and signature, or any similar document, issued or purported to be issued by a department or agency of the federal government or of a provincial or foreign government.

(4) Every person who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) is guilty of an offence punishable on summary conviction.

2. Section 130 of the Act is replaced by the following:

130. (1) Everyone commits an offence who

(a) falsely represents himself to be a peace officer or a public officer; or

(b) not being a peace officer or public officer, uses a badge or article of uniform or equipment in a manner that is likely to cause persons to believe that he is a peace officer or a public officer, as the case may be.

(2) Everyone who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) is guilty of an offence punishable on summary conviction.

3. (1) Paragraph (a) of the definition “offence” in section 183 of the Act is amended by adding the following after subparagraph (iii):

(iii.1) section 56.1 (identity documents),

(2) Paragraph (a) of the definition “offence” in section 183 of the Act is amended by adding the following after subparagraph (lvi):

(lvi.1) section 342.01 (instruments for copying credit card data or forging or falsifying credit cards),

(3) Subparagraph (a)(lxvi) of the definition “offence” in section 183 of the Act is replaced by the following:

(lxvi) section 368 (use, trafficking or possession of forged document),

(lxvi.1) section 368.1 (forgery instruments),

(4) Paragraph (a) of the definition “offence” in section 183 of the Act is amended by adding the following after subparagraph (lxx):

(lxx.1) subsection 402.2(1) (identity theft),

(lxx.2) subsection 402.2(2) (trafficking in identity information),

(lxx.3) section 403 (identity fraud),

4. (1) The portion of subsection 342(3) of the Act before paragraph (a) is replaced by the following:

(3) Every person who, fraudulently and without colour of right, possesses, uses, traffics in or permits another person to use credit card data, including personal authentication information, whether or not the data is authentic, that would enable a person to use a credit card or to obtain the services that are provided by the issuer of a credit card to credit card holders is guilty of

(2) Subsection 342(4) of the Act is replaced by the following:

(4) In this section,

“personal authentication information” means a personal identification number or any other password or information that a credit card holder creates or adopts to be used to authenticate his or her identity in relation to the credit card;

“traffic” means, in relation to a credit card or credit card data, to sell, export from or import into Canada, distribute or deal with in any other way.

5. Subsection 342.01(1) of the Act is replaced by the following:

342.01 (1) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years, or is guilty of an offence punishable on summary conviction, who, without lawful justification or excuse, makes, repairs, buys, sells, exports from Canada, imports into Canada or possesses any instrument, device, apparatus, material or thing that they know has been used or know is adapted or intended for use

(a) in the copying of credit card data for use in the commission of an offence under subsection 342(3); or

(b) in the forging or falsifying of credit cards.

6. (1) Subsection 356(1) of the Act is replaced by the following:

356. (1) Everyone commits an offence who

(a) steals

(i) anything sent by post, after it is deposited at a post office and before it is delivered, or after it is delivered but before it is in the possession of the addressee or of a person who may reasonably be considered to be authorized by the addressee to receive mail,

(ii) a bag, sack or other container or covering in which mail is conveyed, whether or not it contains mail, or

(iii) a key suited to a lock adopted for use by the Canada Post Corporation;

(a.1) with intent to commit an offence under paragraph (a), makes, possesses or uses a copy of a key suited to a lock adopted for use by the Canada Post Corporation, or a key suited to obtaining access to a receptacle or device provided for the receipt of mail;

(b) has in their possession anything that they know has been used to commit an offence under paragraph (a) or (a.1) or anything in respect of which they know that such an offence has been committed; or

(c) fraudulently redirects, or causes to be redirected, anything sent by post.

(2) Section 356 of the Act is amended by adding the following after subsection (2):

(3) Everyone who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years; or

(b) is guilty of an offence punishable on summary conviction.

7. Section 366 of the Act is amended by adding the following after subsection (4):

(5) No person commits forgery by reason only that the person, in good faith, makes a false document at the request of a police force, the Canadian Forces or a department or agency of the federal government or of a provincial government.

8. Subsection 368(1) of the Act is replaced by the following:

368. (1) Everyone commits an offence who, knowing or believing that a document is forged,

(a) uses, deals with or acts on it as if it were genuine;

(b) causes or attempts to cause any person to use, deal with or act on it as if it were genuine;

(c) transfers, sells or offers to sell it or makes it available, to any person, knowing that or being reckless as to whether an offence will be committed under paragraph (a) or (b); or

(d) possesses it with intent to commit an offence under any of paragraphs (a) to (c).

(1.1) Everyone who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years; or

(b) is guilty of an offence punishable on summary conviction.

9. Section 369 of the Act is replaced by the following:

368.1 Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years, or is guilty of an offence punishable on summary conviction, who, without lawful authority or excuse, makes, repairs, buys, sells, exports from Canada, imports into Canada or possesses any instrument, device, apparatus, material or thing that they know has been used or know is adapted or intended for use by any person to commit forgery.

368.2 No public officer, as defined in subsection 25.1(1), is guilty of an offence under any of sections 366 to 368.1 if the acts alleged to constitute the offence were committed by the public officer for the sole purpose of establishing or maintaining a covert identity for use in the course of the public officer’s duties or employment.

369. Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years who, without lawful authority or excuse,

(a) makes, uses or possesses

(i) any exchequer bill paper, revenue paper or paper that is used to make bank-notes, or

(ii) any paper that is intended to resemble paper mentioned in subparagraph (i); or

(b) makes, reproduces or uses a public seal of Canada or of a province, or the seal of a public body or authority in Canada or of a court of law.

10. Section 403 of the Act and the heading before it are replaced by the following:

Identity Theft and Identity Fraud

402.1 For the purposes of sections 402.2 and 403, “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.

402.2 (1) Everyone commits an offence who knowingly obtains or possesses another person’s identity information in circumstances giving rise to a reasonable inference that the information is intended to be used to commit an indictable offence that includes fraud, deceit or falsehood as an element of the offence.

(2) Everyone commits an offence 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.

(3) For the purposes of subsections (1) and (2), an indictable offence referred to in either of those subsections includes an offence under any of the following sections:

(a) section 57 (forgery of or uttering forged passport);

(b) section 58 (fraudulent use of certificate of citizenship);

(c) section 130 (personating peace officer);

(d) section 131 (perjury);

(e) section 342 (theft, forgery, etc., of credit card);

(f) section 362 (false pretence or false statement);

(g) section 366 (forgery);

(h) section 368 (use, trafficking or possession of forged document);

(i) section 380 (fraud); and

(j) section 403 (identity fraud).

(4) An accused who is charged with an offence under subsection (1) or (2) may be tried and punished by any court having jurisdiction to try that offence in the place where the offence is alleged to have been committed or in the place where the accused is found, is arrested or is in custody. However, no proceeding in respect of the offence shall be commenced in a province without the consent of the Attorney General of that province if the offence is alleged to have been committed outside that province.

(5) Everyone who commits an offence under subsection (1) or (2)

(a) is guilty of an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) is guilty of an offence punishable on summary conviction.

403. (1) Everyone commits an offence who fraudulently personates another person, living or dead,

(a) with intent to gain advantage for themselves or another person;

(b) with intent to obtain any property or an interest in any property;

(c) with intent to cause disadvantage to the person being personated or another person; or

(d) with intent to avoid arrest or prosecution or to obstruct, pervert or defeat the course of justice.

(2) For the purposes of subsection (1), personating a person includes pretending to be the person or using the person’s identity information — whether by itself or in combination with identity information pertaining to any person — as if it pertains to the person using it.

(3) Everyone who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years; or

(b) is guilty of an offence punishable on summary conviction.

11. Subsection 738(1) of the Act is amended by striking out “and” at the end of paragraph (b), by adding “and” at the end of paragraph (c) and by adding the following after paragraph (c):

(d) in the case of an offence under section 402.2 or 403, by paying to a person who, as a result of the offence, incurs expenses to re-establish their identity, including expenses to replace their identity documents and to correct their credit history and credit rating, an amount that is not more than the amount of those expenses, to the extent that they are reasonable, if the amount is readily ascertainable.

REVIEW

12. Within five years after the day on which this Act receives royal assent, a comprehensive review of its provisions and operation shall be undertaken by the committee of the Senate, of the House of Commons or of both Houses of Parliament that is designated or established by the Senate or the House of Commons, or by both Houses of Parliament, as the case may be, for that purpose.

COMING INTO FORCE

13. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.