Justice Committee on Feb. 22nd, 2007

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

All right.

Finally, on the term “identification information”, it seems very clear to me what it is. It's not that I'm accusing you of plagiarism or anything, but in coming up with that, did you compare and pick from any other statute in Canada or elsewhere to get that definition?

Let me put it this way. Is there something similar out there?

[Joanne Klineberg, Counsel, Criminal Law Policy Section, Department of Justice]

In the course of the department's work, it has been ongoing for a period of time on the issue of identity theft. During the course of that work, we have amassed a large number of identity theft criminal statutes, most of which are from the United States, at the federal level and in probably about 45 or 48 states at this point. There are also two models to work with from Australia, and one is actually very recent.

We've gathered all of those. No two are identical, but they all offer fairly similar content in terms of the scope, the types of things that are included, and the way in which they're described. We certainly borrow from those.

[The Chair, Conservative, Art Hanger]

Ms. Jennings.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

You said that over a period of time you've been amassing different definitions. How long has it been?

[Joanne Klineberg]

I believe the department started working on the issue of identity theft a number of years ago, when it was raised by the police community as an issue we should be looking at. A number of public consultation documents have been released. In the development of those documents and subsequently, as a routine matter, we track legislative developments in other jurisdictions.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

So if I understand you correctly, you say it's been a couple of years, so the work and consultations on how to deal with this issue and bring forth legislation to deal with it began under the previous government.

[Joanne Klineberg]

Yes.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you.

Given that you've done this research over the past couple of years, including under the previous Liberal government, on the definitions that have been created and used in foreign jurisdictions, is there any case law on those provisions creating the definition in the foreign jurisdictions? If so, what has been the result of the case law? Has it withstood challenge?

[Joanne Klineberg]

Even in the United States, legislation dealing with identity theft is fairly new and young. On the cases we have been able to locate so far, I can't recollect any that deal with the definition.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you.

[The Chair, Conservative, Art Hanger]

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

To be clear, I don't object to the amendment to section 362. The expression "identification information" is very broad but since it is related to a specific offence of false pretense, it may withstand a challenge.

I would like you to remind us of the scope of sections 380 and 403. What are the elements of the offence?

[William Bartlett]

The fraud offence is quite broad-based and covers a great deal of ground. It's the most commonly used offence whenever any kind of fraudulent activity is involved. There are a number of more specific offences in the Criminal Code that deal with activity of a fraudulent nature, but for the most part the police and crown attorneys dealing with this find that the fraud offence is broad enough that it covers the vast majority of cases they encounter. They tend to use it more often than the more specialized offences.

It simply covers:

Every one who by deceit, falsehood or other fraudulent means, whether or not it's a false pretense...defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service.

So it's a very broad-based offence that covers fraud in a very wide sense.

Personation is a somewhat more specialized offence and involves fraudulently personating any person, living or dead. Now there is pretending to be that person, but it is a fairly broad purpose, if you will, in that it is “with intent to gain advantage for himself or another person” or “with intent to obtain any property or an interest in any property, or with intent to cause disadvantage to the person whom he personates or another person”. It covers a very broad range of intents in pretending to be someone else.

[Réal Ménard, Bloc, Hochelaga, QC]

You said that it would have been useful to know how many individuals had been convicted under section 362. Is section 362 a false pretense provision that has been used to reach the desired objectives? I don't think you have any data for us as to the use of the false pretense offence.

[William Bartlett]

The false pretense offence now is a little bit more focused on false pretense to obtain some particular good or service--obtaining credit by a false pretense. There are a number of subsections, but obtains credit, loans, personal property.... It's fairly focused on a false pretense to obtain a particular--

[Réal Ménard, Bloc, Hochelaga, QC]

When Mr. Rajotte introduced his bill, the type of offence that he wanted to cover and the way in which it had been used were unclear. Now, I understand the purpose of the amendments before us this morning. We are rather inclined to agree with these amendments. I understand the scope of "identification information", but how often has section 362 been used in the past?

[William Bartlett]

The existing false pretenses offence is, again, a fairly common offence where what the false pretense is used to obtain is the particular kind of target that the current false pretenses offence sets out--credit, loans, that sort of thing. In those situations it's quite frequently charged.

The fraud offence could, in many of those cases, be used as well, but the false pretense offence is a little bit more focused in on what in particular you're using the false pretense to obtain. And where it's one of the things that is targeted in the false pretenses offence, they would very often charge that offence.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Ménard.

Mr. Bartlett, I have a question.

I've now had the opportunity to attend three identity theft conferences put on by law enforcement. One of their main complaints when dealing with organized criminal activity, which really garners a lot of money through identity theft and the activity they engage in, which would be, if it's on the plastic side, for instance, false identifications or even those of known persons.... In some cases, they've been known to possess up to 150 different credit cards that are being used on a regular basis until they're of no value. Depending on the limits that are set on these things, it could generate a lot of money. In fact, I think there are multi-millions of dollars that are obtained through identity theft.

Law enforcement will catch these people with all of these credit cards in their possession. Law enforcement authorities complain that to actually convict them of an offence with all this plastic, the only opportunity they really have to convict is on the most recent use of that particular card they possess or that they were in possession of, and all the rest of the plastic, whether used or not, becomes redundant.

Of course, it's difficult to put a conspiracy charge together, if you will, that the intent of this person was to go into a broad conspiracy to steal money from institutions or whatever.

Does anything in this bill address that issue?

[William Bartlett]

Mr. Chairman, no.

This bill deals with pretexting, and that's one particular kind of activity involved in the overall panoply of activities that are what we call identity theft.

Perhaps I'll ask Ms. Klineberg to address the particular issue of credit cards. There are a number of particular provisions in the Criminal Code that address possession and misuse of credit cards.

But in general, one of the things we are looking at in the identity theft initiative that Ms. Klineberg spoke about is these sorts of preparatory activities, if you will.

Whether it's in the form of a credit card or whether it's in the form of passwords and other information that can be used to access bank accounts, or whatever form it may take, before the stolen identity actually gets used...and in many cases it may be used well down the line. That is, when criminal organizations are involved, sometimes the activity is broken down into a chain, and the people who do the actual identity theft pass that on to other people, who then use it for the purpose of actually pulling out the money from bank accounts or credit card accounts. It's that preparatory activity we're very much focusing on.

But perhaps I can ask--

[Joanne Klineberg]

It's a very interesting question, which ties in nicely with the question Mr. Murphy asked in relation to the use of the term “information” in the Criminal Code. The Criminal Code's dealings with information are a fairly new development in the criminal law, and one of the reasons why identity theft and pretensing are issues is that existing criminal offences for theft and false pretense and even fraud are all aimed at deception or taking something “of value”. The courts have said that information is not “of value” in that way, because someone can obtain information, but the person whose information it is, is not thereby deprived of that information.

So the only thing that is lost is control of the information, perhaps privacy of the information, and as well, the risk is created as to how that information might be used, but the person to whom the information relates has not suffered theft or fraud or false pretense the way these things are defined in the Criminal Code. That had always been the case, and in the early 1980s, I think it was, when credit cards were becoming a major form of payment, credit card information was acknowledged as a specific type of information that was not caught by the general provisions of theft and fraud and false pretense of the Criminal Code, because it's merely information.

So specific credit card offences were enacted. They were the first form of identity theft offences, you might say, because they targeted the information itself, which has no value in itself but has value for what it provides access to. That's the way in which information is different from the regular types of property the criminal law is concerned with.

So on the issue of credit cards, we do have long-standing offences in the Criminal Code, which is not to say they're easy to prove in any given case, but they do cover the full range of activities fairly comprehensively. So it isn't merely using a credit card, but it's also an offence to possess a credit card, whether it's an authentic credit card or a forged or falsified credit card, if you know that it was obtained or altered by the commission of a crime. So if someone is caught in possession of dozens and dozens of credit cards, there may be, under the circumstances, a fairly strong inference that the person knew those credit cards had been obtained by the commission of an offence.

There are also offences for possession, use, and trafficking in credit card data, so even if you don't have someone found in possession of the cards themselves, whether they're authentic cards or forged cards, if they've got lists and lists of just the numbers, that can also be an offence. This is not to diminish the law enforcement challenges that may be out there in terms of proving these cases, but on the credit card issue, the law got out a long time ago.

[The Chair, Conservative, Art Hanger]

Yes. I'm raising that point given the fact that I know when law enforcement deals with an individual, it's not so often because of possession of the data, but because of the possession of the instrument itself. To prove it in a court of law is another matter completely, and they decided not to proceed in that fashion due to the time it takes to put all that conspiracy evidence together. It's not logical.

Mr. Petit.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

My question is for Mr. Barlett. I will give you an example from Quebec. I would like to be sure that this bill provides for this type of case.

In Quebec, we have health insurance cards which allow us to obtain free medical services from government. We also have a birth registration system which is different from that of other provinces. In the past, the system was managed by the churches, but it is now managed by the state. Barely a year and a half ago, some people used the birth certificate of deceased individuals for themselves. Through this subterfuge, they obtained health insurance cards and social insurance numbers because they just so happened to have reached the age when they could obtain them.

However, they did not ask for credit. These people were caught out almost 15 or 20 years later, when they asked to receive the old age security pension under someone else's identity. It should be said that these people had entered the country illegally and that they had created an identity for themselves. So, they were not caught until they decided to ask for OAS. Perhaps they had been living under a false identity for 10 years or so. They had managed to obtain health insurance cards and driver's licences. That's why people are now forced to get their photos taken every two years.

Because there was impersonation before this new legislation applied, they were able to use their own photos on a real licence with a real identity, but one that belonged to a deceased person. They obtained all sorts of things over the course of their lives, for almost 15 years. They did not create new identities for themselves, they stole them. All the services they managed to obtain were for themselves. They did not defraud anyone, they paid taxes under an identity which did not belong to them. These people may be good citizens, but at the end of the day, that identity is not theirs. These people benefited from government services like health insurance, employment insurance, etc.

I would like to know if this bill covers that.

[William Bartlett]

Mr. Petit, it is not covered under this bill, as it's focused, or probably not, because it deals with using some sort of fraud or false pretenses to obtain the information that they then create the identity from. I would assume that in the cases you're talking about, they probably got this information in other ways. They may have used fraud or false pretenses to obtain the information, although if it involves simply, as is often the case, taking information off tombstones, for example, perhaps not. So it may not catch them because it doesn't get the means by which they go about collecting the identity information, although it might.

Perhaps I'll ask Ms. Klineberg to comment. This is an issue we're certainly alive to in terms of the broader initiative the government is engaged in.

[Joanne Klineberg]

What I was going to add was that I think the existing personation offence would cover the full range of that person's behaviour: they took the identity of a person who was deceased, so that falls within the ambit of personation, and they pretended to be that person by using their name over the course of a period of years, for the advantage of being able to access government services they otherwise might not have been able to access—if they were in the country illegally, and whatnot.

There is some jurisprudence under the personation offence that says even if a person pays taxes in the false name, or takes out telephone services in the false name and pays the bills, the portion of personation that says “to gain an advantage” is broader than “to gain property”. They're not actually gaining any property through the deception, but they're gaining the advantage of being able to operate under a false name.

I think the initial taking of the information, if a false pretense were used to obtain that initial birth certificate, would fall under Bill C-299 with the proposed amendments, and every subsequent act would be personation.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Petit.

Mr. Lee, you're next in the speaking order, but I'm going to call Mr. Rajotte right after.

Mr. Lee.