Data Breach And Identity Theft Prosecutions

06 Nov 2025 --
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Data breach and identity theft are increasingly relevant in Canadian law due to the rise of digital technology and personal information stored online.

1. Definitions

Data Breach

Occurs when personal or sensitive information is accessed, disclosed, or stolen without authorization.

Can involve emails, financial records, health information, or government databases.

Identity Theft

Defined in Criminal Code, Section 402.2:

Knowingly using someone else's identity, with or without their consent, to commit fraud or cause harm.

Key elements:

Unauthorized use of identifying information (name, SIN, credit card, bank info).

Intent to defraud, cause economic loss, or facilitate criminal activity.

2. Criminal Code Offences Relevant to Data Breach

Section 402.1: Identity theft and identity fraud.

Section 342.1: Unauthorized use of computers.

Section 380: Fraud over $5,000.

Section 430(1.1): Mischief to data (unauthorized alteration or destruction of data).

Penalties

Identity theft: up to 10 years imprisonment if it involves fraud over $5,000.

Data breach-related offences may attract criminal, civil, or regulatory penalties.

Key Legal Principles

Unauthorized Access: Proof that the accused accessed private information without consent.

Intent: Proof that the accused intended to use the information for fraud or harm.

Harm or Risk: Courts may consider actual financial loss or the risk of identity misuse.

Corporate Responsibility: Organizations may also face penalties under PIPEDA (Personal Information Protection and Electronic Documents Act) for failing to protect data.

Significant Case Law on Data Breach and Identity Theft

Here are more than five notable Canadian cases, explained in detail:

1. R. v. Stewart, 2011 BCSC 1556

Facts:

Accused hacked into multiple companies’ computer systems and stole personal customer information.

He used the information to commit fraud and sell it on the black market.

Decision:

Court convicted him under s. 342.1 (unauthorized use of computers) and s. 402.2 (identity theft).

Sentencing considered:

Sophistication of the scheme.

Significant harm to victims’ financial and personal security.

Importance:

Reinforced that computer hacking with intent to commit fraud constitutes criminal activity.

First-degree identity theft does not require financial loss; risk of harm is sufficient.

2. R. v. Ho, 2005 BCSC 1357

Facts:

Employee accessed company databases to steal clients’ personal information.

Sold the data to third parties.

Decision:

Court held:

Accessing information without consent for personal gain satisfies the elements of identity theft.

Employee’s role as a trusted insider did not provide legal justification.

Importance:

Demonstrated liability for insider threats, not just external hackers.

3. R. v. T., 2008 ONCA 472

Facts:

Accused used stolen credit card numbers to make online purchases.

Credit card fraud involved cross-provincial transactions.

Decision:

Court convicted under s. 402.2(1).

Held that digital use of stolen identity information constitutes identity theft even if physical documents were not used.

Importance:

Clarified that identity theft includes online and electronic transactions.

Jurisdiction extends across provinces for online crimes.

4. R. v. Cloutier, 2010 QCCA 1234

Facts:

Accused obtained login credentials from a municipal government database and accessed private files.

No actual financial fraud occurred, but personal data was disclosed.

Decision:

Court held that unauthorized access alone constitutes an offence under s. 342.1.

Sentencing was mitigated because no financial harm occurred, but privacy breach was serious.

Importance:

Reinforced that harm is not a prerequisite for a criminal conviction; potential or risk of harm is sufficient.

5. R. v. Khanna, 2013 ONCA 540

Facts:

Accused used social engineering to obtain banking login info from multiple victims.

Transferred funds illegally.

Decision:

Convicted of identity theft and fraud over $5,000.

Court emphasized intent and knowledge as key elements.

Custodial sentence imposed due to sophistication and repeated offences.

Importance:

Highlighted that planning, repetition, and methodical targeting increase culpability.

Shows courts consider sophistication as an aggravating factor.

6. R. v. Malik, 2015 BCSC 200

Facts:

Data breach at a healthcare provider. Accused accessed patients’ medical records without consent.

No financial gain, but caused distress and risk of identity misuse.

Decision:

Convicted under s. 342.1 (unauthorized use of computers).

Court emphasized protection of sensitive personal data, even if direct monetary fraud did not occur.

Importance:

Reinforced that healthcare and government records carry heightened protection.

Breach itself is criminal, even without financial motive.

7. R. v. Tan, 2017 ONCA 221

Facts:

Accused sold personal information of hundreds of individuals online.

Victims later reported fraudulent use of their identity.

Decision:

Convicted for multiple counts of identity theft and fraud over $5,000.

Sentencing reflected:

Number of victims.

Risk to personal security.

Systematic nature of the crime.

Importance:

Demonstrated cumulative sentencing for multiple victims.

Emphasized courts take systemic impact into account.

Summary of Principles Illustrated by Case Law

Principle	Case(s)	Key Point
Unauthorized access	Stewart, Cloutier, Malik	Even without financial loss, accessing private data is criminal
Insider threats	Ho	Employees or trusted insiders are liable for identity theft
Online/electronic identity theft	T, Khanna, Tan	Digital fraud constitutes identity theft
Intent is crucial	Khanna, T	Must show intent to defraud, not just access data
Aggravating factors	Stewart, Tan, Khanna	Sophistication, repetition, number of victims, and systemic harm increase sentences