The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.
The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.
For full contact information and a brief bio, please see David's profile.
The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.
This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.
Wednesday, November 21, 2007
The Canadian federal government is planning to table legislation in Parliament today to add additional offenses to the criminal code to deal with activities that are precursors to identity theft.
I was interviewed earlier today by CTV Newsnet on the topic (on Google Video):
Here is the media release:
Government of Canada Introduces Legislation to Tackle Identity Theft
GOVERNMENT OF CANADA INTRODUCES LEGISLATION TO TACKLE IDENTITY THEFT
OTTAWA, November 21, 2007 – Minister of Justice and Attorney General of Canada, the Honourable Rob Nicholson, P.C., Q.C., M.P. for Niagara Falls, today introduced legislation to help combat identity theft, which has been identified as a fast-growing problem throughout North America.
“This Government is following through on its commitment to give police the tools they need to better protect Canadians by stopping identity theft activity before the damage is done,” said Minister Nicholson. “I have tabled legislation that will make it an offence to obtain, possess or traffic in other people's identity information if it is to be used to commit a crime.”
The misuse of another person's identity information, generally referred to as identity fraud, is covered by current offences in the Criminal Code , such as personation and forgery. But the preparatory steps of collecting, possessing and trafficking in identity information are generally not captured by existing offences. The proposed legislation would create three new offences directly targeting aspects of the identity theft problem, all subject to five-year maximum sentences:
- obtaining or possessing identity information with intent to use it to commit certain crimes;
- trafficking in identity information with knowledge of or recklessness as to its intended use in the commission of certain crime; and
- unlawfully possessing and trafficking in government-issued identity documents.
Additional Criminal Code amendments would create new offences of fraudulently redirecting or causing redirection of a person's mail, possessing a counterfeit Canada Post mail key and possessing instruments for copying credit card information, in addition to the existing offence of possessing instruments for forging credit cards.
Moreover, a new power would also be added permitting the court to order, as part of a sentence, that an offender be required to pay restitution to a victim of identity theft or identity fraud where the victim has incurred expenses related to rehabilitating their identity, such as the cost of replacement cards and documents and costs in relation to correcting their credit history.
“Our Government understands that new and rapidly evolving technologies have made identity theft a widespread criminal activity that often involves organized crime,” added Minister Nicholson. “This is an issue that is harming Canada 's families, seniors and businesses. We are therefore taking action to tackle this serious problem.”
This legislative proposal is one in a new series of tackling community crime bills the Government of Canada will be introducing in this new session of Parliament. This series is in addition to the comprehensive Tackling Violent Crime Act that aims to better protect youth from sexual predators, protect society from dangerous offenders, get serious with drug impaired drivers and toughen sentencing and bail for those who commit serious gun crimes.
In addition to its plan to protect Canadians against identity theft, the Government of Canada has:
- introduced a National Anti-Drug Strategy, including legislation that would provide mandatory jail time for serious drug crimes;
- tabled legislation to strengthen the Youth Criminal Justice Act ; and announced a comprehensive review of this Act in 2008;
- invested in crime prevention community projects across Canada that target youth;
- passed legislation to increase penalties for those convicted of street racing; and
- passed legislation to end conditional sentences for serious crimes such as personal injury offences.
An online version of the legislation will be available at www.parl.gc.ca.
Here is additional coverage from CTV:
CTV.ca Tory legislation to target identity theft
Tory legislation to target identity theft
Updated Wed. Nov. 21 2007 11:58 AM ET
CTV.ca News Staff
The federal Conservatives will introduce legislation today aimed at charging people accused of identity theft even before stolen information is used to commit a crime.
Currently, the law makes it illegal to misuse someone's personal information to create false identification or for other fraudulent purposes.
However, it is not against the law to collect, possess or traffic another person's identity information.
The Tories want to amend the Criminal Code to make it an offence to possess someone's personal identifying information with the intent of selling it or using it to commit fraud.
"I think there's always a challenge in proving intent but we have a number of offences in our Criminal Code where intent is an important portion of proving the charge," David Fraser, a lawyer that specializes in privacy issues, told CTV.ca.
"You can do that by looking at the totality of the circumstances -- you don't necessarily have to look directly into the head of the accused."
In 2006, almost 8,000 victims reported losses of $16 million to PhoneBusters, the Canadian Anti-fraud Call Centre.
"There are probably even more who don't report it... (and) there isn't mandatory reporting from the banks or the credit bureaus who might be the first to hear about it," said Fraser.
He said the Tory initiative will give law enforcement an additional tool to help them deal with identity theft offences.
However, Fraser said attention should also be given to ensuring that businesses properly secure personal information in the first place.
"That's one of the places where information often gets into the hands of identity thieves," he said.
"Another part of it might be simply to make it a little more challenging in order for credit granters to extend credit to individuals."
Consumers can also take practical steps to protect their information by regularly checking bank statements and shredding personal documents, said Fraser.
The identity theft legislation is the latest in a flurry of anti-crime initiatives the Tories have announced this week.
On Tuesday, the Harper government introduced new legislation proposing mandatory sentencing for individuals convicted of serious drug-related crimes.
Federal Justice Minister Robert Nicholson said the new bill is designed to impose tough sentences on Canadians profiting from organized crime and violence.
If passed, Bill C-2 will impose the first mandatory sentences under the Controlled Drugs and Substances Act for people convicted of drug-related crimes.
On Monday, the Tories proposed changes to the Youth Criminal Justice Act.
The key proponents of their proposal are:
- Tougher sentences
- Allowing for pre-trial detention
- Allow courts to consider deterrence and denunciation as objectives of youth sentences
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