What is theft and forgery of a credit card in Canada?
Theft and forgery of a credit card is criminalized under section 342 of the Criminal Code of Canada. Unsurprisingly the section generally prohibits theft of a credit card (s. 342(1)(a)) and forgery (which can include falsifying/copying credit card information) [s. 342(1)(b)]. It also captures an array of other acts relating to stolen or forged credit cards including:
- possession of a stolen or forged credit card ( 342(1)(c));
- trafficking a stolen or forged credit card ( 342(1)(c));
- using a stolen or forged credit card ( 342(1)(c)); and
- using a credit card which has knowingly been revoked or cancelled ( 342(1)(d)).
Furthermore, unauthorized use of credit card data is also prohibited under section 342(4) of the Criminal Code. This includes possessing, using or trafficking credit card data, including personal authentication information regardless of the data being authentic.
Some examples of acts which might constitute a section 342 offence include:
- Stealing a credit card
- Stealing and using a credit card
- Counterfeiting such as taking a photo of, copying, scanning, taking an imprint of, or moulding a credit card which is not in your name
- Possessing a credit card which is not in your name
- Selling or giving away credit card data to a third party (such as credit card numbers, account info for online banking accounts, etc.)
- Sharing card information or online banking info such as personal authentication information for a credit card not in your name with a third party and without the consent of the individual named on the credit card
- Providing false information to obtain credit cards through the mail
- Unauthorized use of credit card information for fraud over the internet, phone or email
- The usage of equipment or software designed to steal credit card information, PIN#, etc.
A strong defence to a charge of credit card theft/forgery will depend on the circumstances of one’s case.
However, some common defences against the charge include:
- Colour of right
- Applicable Charter defences
Theft/forgery of a credit card as criminalized under section 342 of the Criminal Code is a hybrid offence. This means that the Crown may elect to proceed either via an indictable charge or a summary one. Indictable charges are the more serious category of criminal charges and summary charges are the less serious category of criminal charges. The way the Crown may opt to elect depends on the specific facts of the case and circumstances surrounding the offender.
The prospective sentences for a s. 342 charge are as follows:
- For summary conviction no more than 2 years less a day imprisonment and/or a $5000 fine.
- For indictable conviction no more than 10 years imprisonment (see: sections 342(1)(e)-(f) and 342(3)(a)-(b)).
All of these definitions serve as important in determining whether the actus reus and mens rea elements are made out.
The Guilty Act (Actus Reus)
The actus reus is proven when the Crown demonstrates that the claimed illegal act you undertook meets specific criteria for which the relevant section of the Criminal Code prohibits. For example, under s. 342 of the Code, many different acts could constitute a section 342 offence.
These are discussed individually below:
For a section 342(1)(a) conviction, the Crown must show that you stole a credit card. As noted above, to “steal” means to commit theft (see: s. 2 of the Criminal Code).
To commit theft of a credit card means to:
- take or convert a credit card;
- fraudulently; and
- deprive the owner of their right to the credit card.
For detailed common law definitions of “takes”, “converts”, “fraudulently, and “deprive the owner” see our Motor Vehicle Theft article here.
For a section 342(1)(b) conviction, the Crown must show that you forged or falsified a credit card. This casts a wide net over an array of different acts. Essentially, forging will often include copying (imprinting, moulding, taking a photo of, recording, etc.) credit card information without the consent of the named cardholder. Falsifying credit card information is to mean counterfeiting or manipulating credit card information to appear legitimate despite it being fraudulent information.
For a section 342(1)(c) conviction, the Crown must show you either
- used; or
a credit card or forged or falsified credit card.
In establishing the definition of “possession”, section 4(3) Criminal Code states that:
(a) a person has anything in possession when he has it in his personal possession or knowingly
- has it in the actual possession or custody of another person, or
- has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
There are many types of possession (personal, constructive, joint). See a more detailed discussion of the different types of possession in our Possession of Stolen Property article here. The common factor between all of these modes of possession is the power of the accused to control — at least in some measure — what happens to the item in question, or who gets the use or benefit of it.
A key consideration when establishing “use” of a credit card is established in a case called R v Tuduce, 2014 ONCA 547 (CanLII). The court here notes that the question of whether credit cards could be used is not relevant to the offence created by s. 342(3). The offence is made out “whether or not the data was authentic”. In other words, if the credit card isn’t useable; such as it was cancelled or the person using the card is missing data which renders the card obsolete, the offence can still be made out.
To traffic credit card information in Canada means to sell, export from or import into Canada, distribute or deal with in any other way the credit card or its information. See the definition of “traffic” above in the offence overview.
The second part of the offence is “knowing that it was obtained, made or altered (i) by the commission in Canada of an offence, or (ii) by an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence. The knowing aspect is discussed further in the mens rea section below, however, what constitutes obtainment in the context of this section has been notably considered by the courts. A rule established by the courts relating to “obtaining” or obtainment includes the finding that a credit card is “obtained by” the commission of an indictable offence where it was originally simply found by the accused but he subsequently formed the intention to convert the card to his own use (R v Costello, 1982 CanLII 354 (BCCA)).
Furthermore, where the information is drafted to come within 342(1)(c)(ii) but specifies that the credit card was obtained by an “offence” that if it had occurred in Canada would have constituted an offence then the Crown having particularized the act or omission as an “offence” must prove that it was an offence known to the law of the place where it allegedly took place. This would require proof of the foreign law (see: R v Ingram, 1978 CanLII 394 (BCCA)).
In the context of the actus reus, to secure a conviction for a section 342(1)(d) offence, the Crown must show that the accused “used” the card. See a discussion of “use” directly above.
For a section 342(3) conviction, the Crown must show that the accused:
- trafficked; or
- permitted another person to use credit card data, including personal authentication information, whether or not the data is authentic.
For the definitions of “possession”, “use” and “traffic” see above.
The Guilty Mind (Mens Rea)
The mens rea of an offence speaks to an accused’s state of mind in connection to the commission of an offence. In other words, to prove the mens rea is to generally prove that the accused intended to commit the offence. These are taken separately given the different types of offences enlisted under s. 342.
To demonstrate the mens rea of a section 342(1)(a) offence, the Crown must address the following considerations:
“Without colour of right”
While all of the actus reus elements may be met, section 342(3) of the Criminal Code goes on to note that “[every] one commits theft who fraudulently and without colour of right takes […] anything…”. Technically speaking, colour of right, is a statutorily offered defence to theft. While the theft of a credit card might be fraudulent, if it is without colour of right, there is no theft.
The term “colour of right” generally, refers to a situation where there is a founded belief of a proprietary or possessory right to the (in the instance of theft of a credit card) credit card (see: R v Howson, 1966 CanLII 285 ONCA). While the Crown bears the burden of proving that a theft was committed without colour of right, practically speaking, this criterion only needs to be disproven should there exist in evidence an actual air of reality to the notion that the defendant believed he had a right to possess the object (see: R v Horse, 2019 SKCA 56 (CanLII)). In other words, if the accused never raises the defence, it is unlikely that the Crown will find a colour of right on the evidence. This is not because the Crown avoids or ignores evidence which might point to a colour of right defence, but that it is hard to come across such evidence naturally without the defendant’s claim to it (see: R v Foidart, 2005 MBCA 104 (CanLII)). As per R v Manuel, 2008 BCCA 143 (CanLII), this belief must be a sincerely held belief in a legal right, not a moral right, to do what was done. A mistaken belief can also exist in a mistaken state of facts (see: R v Dorosh, 2003 SKCA 134 (CanLII)).
As discussed above, the Crown must prove either that the credit card was taken or converted. To prove that it was taken, there is both a physical element and a mental element to “taking”. Unless the necessary intent to take or convert is established, no conviction will lie, even where an accused moves an article and conceals it (see: Regina v Nesbitt, 1972 CanLII 1314 (ONCA)). For example, if you came across a lost credit card and decided you were going to bring it to a police station for it to be returned to its rightful owner, while you physically took the credit card, arguably, you did not intend to take it or deprive the owner of their possessory right. Furthermore, “an offender cannot assault, or otherwise abuse, partners or strangers to the point whereby they are simply prepared to hand over worldly goods and then claim that those items were given to them voluntarily” (see: R v K (C.B.), 2015 CarswellNS 1003, 2015 NSCA 111, 367 NSR (2d) 65, 1157 APR 65 (NSCA)). The intent requirement helps the courts differentiate between ‘taking to steal’ and ‘taking for alternative (perhaps for more altruistic) purposes’.
“Deprive the owner” continued
In the context of depriving the owner, again there is both a mental and a physical element to this component of the offence. As noted by the British Columbia Court of Appeal, a bona fide (good faith) belief that goods are actually lost or abandoned and that the owner cannot be found is inconsistent with an intent to deprive anyone of the goods (see: R v Konken, 1971 CanLII 1326 (BCCA)). As aforementioned, the intent to deprive the owner of his possessory right or proprietary interest is sufficient in demonstrating the mens rea.
All in all, to prove the mens rea elements of a theft of a credit card, the Crown must show:
- that the fraudulent taking or converting of the credit card was without colour of right;
- that there was an actual intent to take the credit card; and
- that there was an intent (or the accused did intend) to deprive the owner of their possessory right to the credit card.
Generally, if the actus reus is established for this charge, the mens rea will naturally follow and will be challenging to debunk. If you’ve forged or falsified credit card data, it will be difficult to show that you did not have the intent to do so.
For a conviction under section 342(1)(c), the Crown must show the actus reus elements (possessed; used; or trafficked a credit card or forged or falsified credit card) and then show that you did this knowing it was obtained, made or altered by the commission in Canada of an offence, or by an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence […].
Therefore, you are only in contravention of the section when amidst possessing, using or trafficking the credit card, you knew it was obtained, made or altered via the commission of a criminal offence in Canada. To know that the credit card was “obtained” means to know that it was “[procured, gained, or gotten]” via the commission of an offence (see: R v Pinkerton, 1985 CanLII 3905 (MBQB)). If you are in possession of, using or trafficking a credit card but are unaware of its ‘criminal characteristic’ a 342(1)(c) offence cannot be made out (this does not necessarily mean you are not guilty of another s. 342 offence).
While all of the actus reus elements may be met, section 342(3) of the Criminal Code notes that “[every] person who, fraudulently and without colour of right, possesses, uses, traffics in or permits another person to use credit card data” is guilty of an offence. Technically speaking, colour of right, is a statutorily offered defence to theft/forgery of a credit card. While the possession, use or trafficking of a credit card might be fraudulent, if it is without colour of right, there is no s. 342(3) offence. For a discussion of colour of right, see above or our discussion below of potential s. 342 defences.
Remember that BOTH the actus reus and mens rea elements must be present for a conviction. One or the other is insufficient.
The availability and strength of any defence depends entirely on the specific facts of your case. However, the following are some common defences that may be used when fighting a theft/forgery of a credit card charge:
Colour of right
As discussed above, colour of right is available as per the wording of section 342(3) of the Criminal Code, to a charge of theft/forgery of a credit card. Colour of right is a defence that can be raised when you believe that you had a proprietary or possessory right to the stolen item when in reality you did not. Otherwise said, colour of right refers to a situation where if the facts that you believed to be true were true, you would not be guilty of theft.
An example of a colour of right defence would be where you took a credit card because you honestly believed it was being lent to you. For example, you could take your mom’s credit card with the honest but mistaken belief that she was lending it to you, even though she was not. Perhaps in the past, your mother and you had an agreement where you were allowed to take her card without permission to purchase groceries, but later revoked this consent and you were unaware of this revocation. If you can provide a factual basis that shows that you honestly and reasonably believed in this particular state of affairs, you can use the defence of colour of right.
However, when raising colour of right as a defence, it is very important to note that the mistaken belief must be related to a mistaken understanding about the legal status of property, not your moral right to property. That is, you would not be justified in taking something because you were of the view that the person ‘owed you’ or that you were entitled to the credit card, so you decided to compensate yourself by taking it without consent.
While consent is in a way, a sub-defence under colour of right, the defence of consent can apply to other s. 342 subsections outside of s. 342(3). For example, in the context of theft of a credit card under s. 342(1)(a), perhaps you took the credit card because you were permitted by the named cardholder to do so. Maybe in the context of forging or falsifying credit card information, you were arrested for taking manual imprints of credit cards for business purposes in sales transactions during a day your computerized payment systems were down. In this instance, you would have had consent. Simply put, consent means that you had a possessory right to the credit card or its information.
In the circumstances where your offence was not recorded, or the recording of the alleged offence is of dubious quality, you may be able to raise identity as a defence. That is, you can assert that you were not the person who committed the offence and that the authorities made a mistake when identifying you as the perpetrator. To effectively raise this defence, it is important that you have some sort of corroborative evidence, for example, an alibi.
Applicable Charter defences
The Canadian Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights, either deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s.24(2) of the Charter. Some examples of your legal rights under the Charter include the right against unreasonable search and seizure (section 8), the right to be promptly informed of the reasons for your arrest (section 10(a)), the right to legal counsel (section 10(b)), and the right to remain silent (section 11(c)) amongst other important rights embedded in the Charter.
Credit card theft/forgery is isolated from other offences such as simple theft or fraud in the Criminal Code likely because Parliament sought to demonstrate the seriousness of credit card theft/forgery as opposed to theft of other animate or inanimate objects or other types of fraudulent acts. Therefore, the sentence for theft/forgery of a credit card can differ from that of a charge of simple theft or fraud. The prospective sentence for a theft/forgery of a credit card depends on whether or not the Crown elects to proceed by way of indictment (more serious category of criminal offences) or summarily (less serious category of criminal offences).
Should the Crown proceed by way of indictment, the offender could be subject to up to 10 years imprisonment. There is no minimum punishment for theft/forgery of a credit card. If the Crown proceeds with the charge(s) summarily, the maximum punishment is two years less a day imprisonment. In both circumstances (indictable or summary), the sentencing court is given wide discretion and all sentencing dispositions are available. Additionally, the court may consider ancillary sentencing orders. These are outlined below.
Sentencing Dispositions Available to the Sentencing Judge
This is not an exhaustive list but speaks to some of the more common sentences available to a court upon theft/forgery of a credit card convictions.
Ancillary Sentencing Orders
In conjunction with any of the aforementioned sentencing dispositions, a court is also entitled to make the following sentencing orders:
- Victim protection orders (ss. 21, 732.1(3)(a.1), 732.1(3)(h), 742.3(2)(a.3), 742.3(2)(f) of the Criminal Code). Victim protection orders include communication bans (e.g., not being allowed to speak with victims, witnesses, etc.) or bans on visiting certain sites or homes.
- Restitution (ss. 738 and 1(3)(h) of the Criminal Code). This is an order to pay money to a victim for damage to property, harm caused to the victim, etc.
- Forfeiture of offence-related property ( 490.1 of the Criminal Code). This would be a request by the court to relinquish or return the stolen property.
- DNA order ( 487.04 of the Criminal Code). The court could request that a DNA sample be ordered and stored in the DNA databank. This is ONLY applicable to indictable charges for this type of offence.
- Victim surcharge fine ( 737 of the Criminal Code). Victim surcharge fines are court-ordered fines made out to a public victim fund which is then distributed to victims on an ad hoc basis.
Because the capacity for these types of offences to vary in degree of severity and the capacity for the circumstances of these kinds of offences to differ notably in nature, sentences for this type of offence greatly range. Some of the more recent cases for theft/forgery of a credit card have ranged from absolute discharge (see: R v Zhang, 2008 BCSC 674 (CanLII)) to 5 years imprisonment (see: R v Harvey-Langton, 2012 MBPC 64 (CanLII)). If charged with a s. 342 offence, one of our defence lawyers will be able to provide you with information on realistic sentencing dispositions given the circumstances of your specific case.
Frequently Asked Questions
What is the maximum penalty for stealing or forging a credit card?
The maximum sentence for stealing or forging a credit card is 10 years imprisonment if charged via indictment (the more serious category of criminal offences) or 2 years less a day imprisonment if charged summarily (less serious category of criminal offences). For more information on sentencing theft/forgery of a credit card charges, see our more detailed discussion above.
Do police investigate credit card theft?
Often the answer to this is no. Police agencies are seldom involved in these types of investigations. Generally, these types of investigations are taken on by your credit card agency or the federal credit bureaus. If such an investigation is beyond their scope, or these agencies lack the resources to investigate properly and fully, they may involve police agencies. This is especially true for large-scale credit card forging or theft schemes/scams/operations. The police are not proactively patrolling credit card theft incidences as they might for say, traffic offences.
Can you go to jail for credit card theft?
The short answer is yes. While there is no minimum sentence for credit card theft, meaning that imprisonment is not a mandatory penalty (other sentencing dispositions are available to a judge at sentencing), imprisonment is an available sentence for credit card theft/forgery.
Her Majesty the Queen v Shamshiri, 2013 ONSC 1906 (CanLII)
Mr. Shamshiri was 19 years old when he used a credit card obtained through the commission of an offence to purchase train tickets for which he subsequently went on to obtain a refund on his personal credit card which he rightfully owned. During the refund transaction, the teller noticed discrepancies between the card used for the purchase and the card the refund was being processed on. The teller contacted the police mid-transaction and reported the suspicious activity. Mr. Shamshiri was arrested and sentenced to an 18-month probation term and a $1000 fine. At sentencing, the court considered the offender’s age, the fact he had no prior criminal record and his involved, and close-knit family dynamic.
You can read the full case here.
R v Saade, 2006 NSSC 279 (CanLII)
The offender, Mr. Saade along with three other co-accused, faked identities and then obtained employment positions at different petrol stations in the city. The accused using his fake identity would insert a little electronic gizmo between the touchpad where the patron would enter their PIN, after the credit card was swiped and would capture PINs and all of the electronic data stored in that black magnetic strip. The accused were then able to either pass that information on to others, or they were able, themselves, to program a blank bank machine card. Over the course of three months, the accused were responsible for about a quarter of a million dollars in credit losses. Ultimately, the offender was sentenced to 2 years imprisonment.
You can read the full case here.
R v Harvey-Langton, 2012 MBPC 64 (CanLII)
Mr. Harvey-Langton, a UK citizen, pleaded guilty to 66 criminal charges involving a sophisticated credit card counterfeiting operation in Winnipeg. At the time, it was the largest operation of its kind seen in Manitoba. Essentially, Mr. Harvey-Langton, in concert with two other co‑accused constructed a criminal scheme whereby they purchased stolen credit card numbers and personal identification information from illegal websites. They schemed to manufacture credit cards with the stolen information on them. They acquired the machinery for making credit cards and planned to set up a business in Winnipeg. The only purpose for Harvey-Langton’s involvement was to make enough money to have a lavish lifestyle. The accused made an array of personal purchases using the card information including parking vouchers, food, cameras, car rentals, hotel stays and other lodging rentals, etc. In total, Harvey-Langton and his co-accused possessed 2,447 credit card numbers illegally obtained and 2,438 people’s personal identity information. Ultimately the offender was sentenced to 5 years imprisonment.
You can read the full case here.